Questions about Kavanaugh temper enthusiasm for Trump pick

Wednesday, July 11, 2018
Chad Groening, Jody Brown (

Trump with Judge Brett KavanaughThere's a reason or two why the American Family Association has described President Donald Trump's latest nominee for the U.S. Supreme Court as a "four-star" pick instead of a "five-star" pick.

Judge Brett Kavanaugh has been described by conservatives and legal experts as a "brilliant jurist" and an originalist who will uphold the integrity of the U.S. Constitution. Still others believe the DC Appeals Court judge was President Trump's "establishment" pick because he had the best chance of getting through the confirmation process. But was he the best choice?

Abraham Hamilton III is general counsel and public policy analyst for the American Family Association, which endorsed Amy Coney Barrett. He has his concerns about Kavanaugh.

"I was hoping for Amy Barrett primarily because her judicial philosophy was clear. There weren't any questions on constitutionalist judicial philosophy and application of the Constitution – whereas with Kavanaugh, there are some questions," he explains. "Now do I think he will be a bad jurist on the Supreme Court? I think the answer to that is: We're not certain."

After initially objecting to Kavanaugh's nomination, AFA explained on Tuesday that because of concerns expressed by its supporters and friends in the pro-life movement, it was "willing to let this process play out" and get clarification via the confirmation process. Still, the pro-family group remains "deeply concerned" about how the SCOTUS nominee might ultimately rule on issues related to abortion and religious liberty.


Hamilton admits he's concerned about Kavanaugh's connection to ObamaCare. "Brett Kavanaugh is the person who initiated the thought process concerning ObamaCare to treat it as a tax," he points out. "His introduction of that concept, I believe, appeared to lay the foundation for what ultimately became John Roberts' opinion to which the majority of the Supreme Court Justices joined to uphold ObamaCare."

The AFA counsel also notes that in 2006, during his confirmation to the DC Court of Appeals, Kavanaugh referred to Roe v. Wade as "binding precedent" when questioned by Senator Chuck Schumer about the issue of abortion:

Kavanaugh: "On the question of Roe v. Wade, if confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent on the court. If I would be confirmed to the DC Circuit, senator, I would follow it. It has been reaffirmed many times."

That response raises a question in Hamilton's mind: "Is Brett Kavanaugh saying that because he would be a lower-level court judge held to adhere to the precedent established by the Supreme Court – or is that a reflection of Kavanaugh's personal view on the matter? I don't know."

With Amy Coney Barrett, he concludes, there wouldn't have been those kinds of questions.

'Trust ... but verify'

The president of Family Research Council argues that what may be the most persuasive thing about Kavanaugh is the confidence that conservatives have in the man who nominated him.


"Anyone who doubts Kavanaugh's bona fides should keep in mind: this president has an exceptional track record on the judiciary," says FRC's Tony Perkins. "For the time being, we have to trust President Trump's judgment – a benefit of the doubt that, based on his previous nominees, he's earned."

But Perkins isn't suggesting that Trump's evangelical base simply "rubber-stamp" the nominee.

"[The president's] supporters will get to hear all about Kavanaugh and determine whether his opinions align with their firmly held beliefs," he writes. "Critics on the Right have pointed out that while Kavanaugh is undoubtedly brilliant and conservative, he seems to be something of a judicial politician. That may make Trump supporters uneasy ....

"If Kavanaugh reveals himself in his confirmation hearings to be someone in that mold, the Trump base will not look fondly on providing a companion for Chief Justice Roberts." Sometimes, explains Perkins, Roberts appears to have sworn to uphold Supreme Court precedent - not the Constitution.

Perkins' advice regarding Kavanaugh? "Trust but verify."

Editor's Note: The American Family Association is the parent organization of the American Family News Network, which operates


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