On Kavanaugh: What now?

Friday, July 13, 2018
 | 
Bryan Fischer - Guest Columnist
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Bryan FischerAs the nomination process for Judge Brett Kavanaugh moves forward, we will be reading the tea leaves along with everyone else. But the reality is that we will have to hold our breath until he weighs in on the first cultural issue – abortion and religious liberty chief among them.


While we here at American Family Association vigorously supported Amy Coney Barrett to be President Trump's next nominee to the Supreme Court, he instead selected Brett Kavanaugh, whom we initially opposed.

However, we have withdrawn our official opposition and will allow the process to play out. We are not in a position to endorse him, but neither will we fight this nomination.

Our reservations about Judge Kavanaugh, in my judgment, are well-founded. We have legitimate reservations about his jurisprudence on religious liberty (he opined that the government might have a "compelling interest" in forcing employers to provide abortifacients), abortion (he wrote that an illegal alien teenager might be deemed to have a "right" to an abortion), and ObamaCare (he provided the legal reasoning that Chief Justice John Roberts used to declare ObamaCare constitutional).

Speaking just for myself, I am most troubled by his view of Supreme Court precedent. Even in his introductory speech at the White House, he declared that he would "interpret the Constitution as written, as informed by history, tradition, and precedent." If he'd only stopped at "Constitution as written," I'd have had no problem.

But he once again showed what I believe is a dangerous attachment to the doctrine of stare decisis, the doctrine that legal decisions are to be decided by prior court opinions. The rest of the Court, however, does not seem to share Kavanaugh's devotion to precedent. The Court has reversed itself well over 200 times in its history. In just the last two decades alone, it has dramatically reversed its own precedents on the criminalization of homosexuality, the legality of same-sex marriage, and compulsory union dues, among others.

SCOTUS checkmark listThe Court seems to adhere to precedent when it is convenient and to ditch it when it's not. It is hardly the sacred, sacrosanct, inviolable principle regressives want us to believe. One of the reasons we like Judge Amy Coney Barrett so much is that she has been quite clear that when a precedent is in conflict with the plain meaning of the Constitution, it is the precedent that must go.

Kavanaugh has impeccable legal credentials but is undoubtedly an establishment guy. His commitment to precedent seems to make Roe immune to reversal for another generation, which may be why Susan Collins and Lisa Murkowski, for whom Roe is the Holy Grail, seem inclined to vote for him. This would give Kavanaugh 50 votes, even without the ailing Sen. McCain's vote, with Vice President Pence readily available to cast a deciding vote if needed.

Despite these concerns, a large percentage of conservative legal experts are enthusiastic about Kavanaugh, and virtually every pro-life group has been singing his praises. They seem to have a conviction I'm not quite able to share about what Kavanaugh will do were Roe or Casey v. Planned Parenthood to come before the Court. I sincerely hope – and pray – that my concerns with regard to Kavanaugh will in the end prove to be unfounded.

So those of us with concerns will watch carefully as the nomination process moves forward. We will be reading the tea leaves along with everyone else, looking for solid clues about where Kavanaugh is inclined to come down on the issues of the day.

But the reality is that all of us will have to hold our breath until Kavanaugh weighs in on the first cultural issue – abortion and religious liberty chief among them – that comes before him on the Court. We have been disappointed by establishment picks before, but it's also possible that we will be quite pleasantly surprised by what Kavanaugh does when he dons the robe. May it be.


Bryan Fischer hosts "Focal Point with Bryan Fischer" every weekday on AFR Talk (American Family Radio) from 1:00 - 3:00 p.m. (Central).

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