As Justice Anthony M. Kennedy prepares to depart the Supreme Court by the end of July, one of his most likely successors is D.C. Circuit Court Judge Brett Kavanaugh.
Kavanaugh, writes POLTIICO, is a strong conservative who’s still managed to come under fire from far-right critics.
Conservatives hoping to entrench a stalwart Republican on the bench have concerned themselves with Kavanaugh’s history. Among his recent rulings is the controversial case of a 17-year old immigrant who asked for an abortion while detained by the federal government. Kavanaugh’s cautious consideration—penned as dissent—did little to appease pundits on either side of the political line.
Although Kavanaugh didn’t agree with the rest of his fellow judges on the outcome—a majority voted to allow the abortion—conservatives say his dissent wasn’t “as constitutionally principled” as another judge who’d gone over the issue.
“This case exemplifies why Kavanaugh is not the best available Supreme Court prospect,” Philip Jauregui of the Judicial Action Group wrote in a memo to Republican leaders. The memo called Kavanaugh “certainly not the worst judge” in the case but questioned his ability to pursue radical and transformative rulings on the Supreme Court.
Former Virginia Attorney General Ken Cuccinelli voiced his support for Jauregui’s perspective in a Friday interview, citing trouble with the immigrant abortion case, known as Garza v. Hagan.
“He made a statement that really gives one some pause about what he’d done when he’s on the Supreme Court as opposed to an appellate court,” said Cuccinelli. “His view there was quite troubling.”
Cucinelli, who POLITICO reports has voiced support for another two Supreme Court candidates, suggested that Kavanaugh may not be reliably conservative.
“I really feel like Kavanaugh’s just another Roberts,” said Cuccinelli, referring to the court’s current chief justice. “He came straight out of the Ivy League to Washington, was never outside the beltway and went to the Bush White House. To paraphrase Sen. Feinstein, the Bush speaks loudly in him.”
Kavanaugh’s backers say his dissent in Garza v. Hagan was the hallmark of a principled but reasonably cautious conservative. They say the current D.C. judge was doing his best to find a favorable outcome for an immigrant teen known only as “Jane Doe,” without setting an unnecessary precedent for an issue that may not be one of constitutionality.
“One notion of judicial restraint, especially in a constitutional case, is not to decide unnecessary constitutional issues,” said Shannen Coffin, former legal counsel to Dick Cheney and a colleague of Kavanaugh during the Bush administration. “That was really an exercise in judicial restraint.”
Kavanaugh’s apparent caution is most worrying to the subset of conservatives hoping that a Republican-dominated Supreme Court can set in motion the review and ultimate repeal of Roe v. Wade. His stance on other issues of contemporary importance, like protections for LGBT persons, isn’t well-established.