July 19, 2017
The Honorable Mitch McConnell
United States Senate, Majority Leader
Washington, D.C. 20510
Re: Opposition to the Confirmation of Judge Brett Kavanaugh as Associate Justice of the United States Supreme Court
Dear Leader McConnell,
Epic national decisions are seldom determined by one vote. However, in this present supreme moment, you are the one United States Senator who will make the difference in the most consequential judicial selection in the history of our nation.
Prior to the 1960s and 1970s, judicial selections were far less important because the judiciary – by and large – accepted its constitutional role of deciding cases and rarely attempted to usurp legislative power. However, the proliferation of judicial activism into matters of religious freedom, life, and other matters awakened the Nation to the importance of judicial nominations. In 1987, thirty-one years ago, we stood on the precipice of reversing that trend by retaking the all-important fifth seat on the United States Supreme Court. Sadly, we failed to retake the Court. From that day to this one we have longed for another opportunity to restore constitutionality to the Supreme Court and today we have one. We must not fail again.
We humbly submit that your constituents expect you to get this decision right and they will and should hold you accountable for your vote on this once in a generation opportunity. There is a time for deference to Senate leadership and the President, but this moment of conscience is not that time.
There are fifty active Republican Senators in Washington, D.C. Senator Charles Grassley, Chairman of the Committee on the Judiciary, correctly surmised that no Democrat will vote for Judge Kavanaugh if even one Republican Senator votes against him. Therefore, Kavanaugh cannot be confirmed unless every active Republican Senator votes for him. Accordingly, your one vote is the vote that will grant or deny confirmation to Kavanaugh. That is a weighty burden, but it is also your opportunity. And who knows but that you have come to your position for such a time as this?
This is the most consequential judicial vacancy in our Nation’s history and, therefore, may be the most important vote of your career. We implore you to weigh the gravity of this moment and to consider the generational and everlasting impact of your vote.
For the reasons stated below, we respectfully request that you vote against the confirmation of Judge Brett Kavanaugh as Associate Justice on the United States Supreme Court.
Justice Kennedy’s retirement presents the United States Senate with the first opportunity in thirty-one years to retake the all-important fifth seat on the United States Supreme Court. This is a once in a generation opportunity and, therefore, calls for great care and the minimization of risk in selecting our next Justice. Since 1975, Republican Supreme Court nominees have been a disappointment to constitutionalists half of the time precisely because we have failed to sufficiently minimize risk and have not learned from our past mistakes. This failure must not persist.
Before the President nominated Kavanaugh, we researched the records of the President’s four finalists and concluded that Judge Kavanaugh was by far the riskiest nominee. In fact, we informed the President and Senate leadership that we favored one prospect, believed two prospects were acceptable (although not our favorites), but that the fourth prospect, Kavanaugh, was unacceptably risky. Accordingly, we informed the President and Senate leadership that we would oppose only Kavanaugh and would not oppose the other three prospects.
The President nominated Kavanaugh and we respect his authority to nominate. You also have authority within our grand American system of “checks and balances,” and we ask you to exercise your authority by denying confirmation to Kavanaugh on the ground that he is too risky for this supreme moment.
In fairness to Kavanaugh, his record does not indicate that he would be an activist in the mold of Justice Ruth Bader Ginsburg, but neither does it indicate that he would be a true constitutionalist like Justice Clarence Thomas. Rather, his record indicates that he would be a swing vote like Justice Anthony Kennedy. With all due respect to Justice Kennedy in the season of his retirement, his record is half-constitutional, half-activist, and wholly unacceptable as a pattern for our next Justice.
Our assessment of Justice Kavanaugh is based on a number of factors. Below is a brief sample of his role in three cases and a discussion of his nomination acceptance speech commending Justice Kennedy’s career of “securing liberty.” The below cases have been widely discussed both by us and by other opponents and proponents of Kavanaugh. Accordingly, we encourage you to research these cases for yourself and to determine whether Kavanaugh is an unacceptably risky nominee for this supreme moment.
Kavanaugh’s Dissent in the Priests for Life Case is Concerning Because – Although He Correctly Dissented – He Made a Critical and Unnecessary Concession.
Priests for Life sued the government because Obamacare forced this faith-based nonprofit and other religious ministries to facilitate access to contraception and abortifacients for their employees. This government policy forced them to violate their deeply held religious beliefs.
The D.C. Circuit ruled against Priests for Life, but Judges Henderson, Brown, and Kavanaugh ruled for them. Two respected conservative female judges – Janice Rogers Brown and Karen LeCraft Henderson – joined in a strong dissent written by Brown that agreed with the Priests on all points. Kavanaugh did not join their dissent and did not agree with the Priests on all points. Instead, he wrote a moderate dissent holding in favor of the Priests in this one case but disagreeing with them – and all religious organizations – on a foundational constitutional principle.
In his dissent, Kavanaugh unnecessarily conceded that the government has a compelling interest in forcing religious organizations to facilitate contraception and abortifacients for their employees. Ultimately, Kavanaugh found that the Priests did not have to facilitate contraception and abortifacients under the facts of this case because the government did not use the least restrictive available means. However, Kavanaugh’s concession created precedent that is incredibly damaging to religious freedom and not required by the Supreme Court. In fact, he admitted that his concession was not required when he noted that Supreme Court precedent was not expressly on point. He wrote:
“Justice Kennedy’s Hobby Lobby opinion did not expressly discuss whether
a compelling governmental interest in ensuring general coverage for contraceptives
encompasses ensuring coverage for those specific drugs and services that,
some believe, operate as abortifacients and result in the destruction of embryos.”
Kavanaugh was not required to make this critical concession; after all, Brown and Henderson did not. However, even if the concession had been required, that still would not explain the concerning way Kavanaugh did so.
It is one thing to submit to a perceived binding precedent; it is quite another thing to act as an apologist and booster for erroneous so-called binding precedent. Kavanaugh did the latter when he acted as an advocate for Justice Kennedy’s pro-abortion agenda by claiming “[i]t is not difficult to comprehend why a majority of the Justices in Hobby Lobby [Justice Kennedy plus four liberal dissenters: Ginsburg, Breyer, Sotomayor, and Kagan] would suggest that the government has a compelling interest in facilitating women’s access to contraception.”
Kavanaugh unnecessarily and inexcusably extolled “the numerous benefits” of contraception and abortifacients and then concluded:
“… it comes as no surprise that Justice Kennedy’s opinion expressly
referred to a ‘compelling’ governmental interest in facilitating women’s
access to contraception [by forcing religious organizations to
facilitate contraception and abortifacients].”
Kavanaugh correctly dissented in Priests for Life, yet he incorrectly and unnecessarily adopted and promoted Justice Kennedy’s pro-abortion principle that the government has a compelling interest in forcing religious employers to facilitate contraception and abortifacients. This concession by Kavanaugh was as unconstitutional as it was unnecessary.
Kavanaugh and Chief Justice Roberts Both Distorted the Text of the Obamacare Law by Claiming that It Imposed a “Tax.”
Chief Justice Robert’s most infamous decision joined the liberal members of the U.S. Supreme Court to save the Affordable Care Act (commonly referred to as “Obamacare”) by ignoring its plain textual meaning and declaring it a tax. President Trump said Roberts “turned out to be an absolute disaster, because he gave us Obamacare.” Senators Cruz and Lee also criticized Roberts as did four members of the Supreme Court. Justice Scalia criticized Roberts’ claim that Obamacare created a “tax,” writing that judges “cannot rewrite the statute to be what it is not.”
The text of the Obamacare statute did not create a tax. Where then did this errant claim originate? The Obama administration’s briefs to the Supreme Court defending Obamacare relied heavily on an opinion of Kavanaugh, who had previously claimed that Obamacare was a “tax.” Kavanaugh’s opinion avoided deciding whether Obamacare was unconstitutional by claiming – contrary to the text of the Obamacare law – that it created a “tax penalty.” This “tax” language was then repeated by the Obama administration and ultimately by Chief Justice Roberts and the four liberal members of the Supreme Court in their effort to save Obamacare by characterizing it as a “tax.”
Kavanaugh did not address the merits of the Obamacare case. However, since he – like Roberts and the four liberal members of the Court – concluded the Obamacare statute was a “tax,” it is reasonable to conclude that Kavanaugh would have joined their controversial opinion to preserve Obamacare by declaring it a tax.
Kavanaugh’s Role in the Garza Abortion Case Presents Concerns.
In Garza, after a pregnant minor illegal alien was detained at the U.S. Border she then sought an abortion. The lower court ordered the abortion, but on appeal the case came before Kavanaugh and two other judges. Kavanaugh wrote an opinion placing the lower court order on hold while seeking to find a sponsor to help the girl decide whether to have an abortion. The entire D.C. Circuit then heard the case, vacated Kavanaugh’s order, and created the opportunity for the abortion to take place.
Despite Kavanaugh’s dissenting vote there are two concerns with his role in this case.
First, although he dissented, Kavanaugh went too far in claiming “[i]n sum, under the Government’s arguments in this case and the Supreme Court’s precedents, the unlawful immigrant minor is assumed to have a right under precedent to an abortion.” Judge Henderson joined Kavanaugh’s dissent but then wrote separately to explain that the minor illegal alien:
“… cannot successfully assert a due process right to an elective abortion. “In concluding otherwise, the Court elevates the right to elective abortion above every other constitutional entitlement.”
Kavanaugh did not join Henderson’s dissent, which notably includes the position that an illegal alien minor does not have a constitutional “due process right to an elective abortion.” To the contrary, he encouraged the government to assume – as he himself assumed – that the minor did have a constitutional right to an abortion.
Second, during oral argument Judges Kavanaugh and Millett, (a liberal Obama nominee), pressured the Department of Justice (“DOJ”) to take the position that Roe v. Wade applied to the case. The DOJ attorney repeatedly refused to do so, but as Judge Henderson explains, after repeated pressure from Kavanaugh and Millett, the attorney finally – but temporarily – said that the Court could assume Roe applied. However, in the end, the attorney corrected the record and refused to concede that Roe applied in this context. Henderson, joined Kavanaugh’s dissent, but then pointed out in her separate dissent that the government did not assume – but rather “declared time and again that it is not taking a position on whether [the minor illegal alien] has a constitutional right to an abortion.”
This case exemplifies why Kavanaugh is not the best available Supreme Court prospect. While he was certainly not the worst judge in the Garza case, (after all, he dissented), the best judge in the case was Henderson. Her dissent was the most principled writing on the issue of life; it followed the legislative text and Supreme Court precedent. In short, Garza shows that Kavanaugh is not radical like Millett on the issue of abortion, but neither is he as constitutionally principled as Henderson.
Kavanaugh Wrongly Commended Justice Kennedy’s Corrupt Career of “Securing Liberty.”
Justice Kennedy’s record of “securing liberty” is activist and infamous. President Reagan, the Senate and the media all believed that Kennedy would be the fifth vote to reverse the constitutional fabrication of Roe v. Wade. Instead, Kennedy’s 1992 opinion in Parenthood v. Casey preserved the so-called “right to abortion” based on the fiction that it is contained within the concept of “liberty” and:
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
That is Justice Kennedy’s legacy of liberty and it is deeply concerning that Kavanaugh would begin his nomination acceptance speech on July 9 by praising Kennedy for his legacy of “securing liberty.” It is certainly appropriate for Kavanaugh to be kind to Kennedy in the season of his retirement. After all, Kavanaugh clerked for Kennedy and it is diplomatic to be gracious in that moment. However, Kavanaugh crossed a line by commending Kennedy for his greatest judicial weakness: his abortion-enabling, judicially activist mis-characterization of liberty.
Here is what Kavanaugh said after thanking President Trump for the nomination:
“Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court. The framers established that the Constitution is designed to secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I’m deeply honored to be nominated to fill his seat on the Supreme Court.”
The truth is that Justice Kennedy did not “devote his career to securing liberty.” In fact, Kennedy devoted his career to the opposite: perverting liberty and it cost a generation of unborn children their lives.
Kavanaugh could have said many things, and he could have been silent on Kennedy’s unconstitutionally destructive view of “liberty.” After all, no one forced Kavanaugh to talk about it. He was not asked a question by a reporter or a Senator.
Moreover, it is not credible to assert that Kavanaugh was unaware of Kennedy’s infamous record of securing liberty. Not only is Kavanaugh an informed and powerful judge in Washington, D.C., but he clerked for Kennedy the year after Kennedy wrote the infamous “liberty / mystery of human life” passage. Perhaps Kavanaugh will claim that he was not praising Kennedy's "career of securing liberty" in the abortion context - but some other context. However, the abortion context is by far the most well-known context. A simple internet search of "Justice Kennedy Liberty" or some other form of those words confirms this fact.
Kavanaugh affirmatively chose to praise Kennedy for just one attribute – the one attribute in Kennedy’s record that is most destructive to our constitution, our nation, and our children: Kennedy’s pro-abortion view of liberty. At a minimum, this is deeply concerning and creates unnecessary risk.
According to our research, Judge Brett Kavanaugh was by far the riskiest of the President’s four finalists and, therefore, he is the least acceptable.
The Constitution empowers the President to choose a nominee. He chose Kavanaugh. Your constituents and the Constitution empower you with “advice and consent” and the authority to vote for or against confirmation of the nominee. We implore you to research this matter yourself, and to devote weight and consideration to this once in a generation decision.
Judge Kavanaugh is unacceptably risky and, therefore, we respectfully request that you vote against his confirmation as an Associate Justice to the United States Supreme Court.
Phillip Leo Jauregui
President, Judicial Action Group