Brett Kavanaugh has received President Donald Trump’s nomination for Supreme Court Justice. Justice Anthony Kennedy, whom the nominee will be replacing, would often vacillate between liberal and conservative rulings. Where does Kavanaugh fall? Is he Democrat or Republican, more liberal or conservative?
In the past, Democrats have charged that Kavanaugh is overly partisan. When George W. Bush nominated him to the D.C. Circuit in 2003, that was one of the main reasons the Democrats stalled his nomination, SCOTUS Blog reported. In 2006, Sen. Chuck Schumer said: “From the notorious Starr report, to the Florida recount, to the President’s secrecy and privilege claims, to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.”
However, Kavanaugh doesn’t always side with conservative views. In 2011 and 2015, for example, he rejected two constitutional challenges to the Affordable Care Act.
Sometimes he takes a conservative viewpoint but doesn’t take it as far as some conservatives might want. In a case where an undocumented teen wanted an abortion while in immigration custody, Kavanaugh wrote a decision that vacated a district court order to let the teen get the abortion, but also imposing a waiting period to find a sponsor. Kavanaugh later noted that the government had decided the teen did have the right to an abortion, but delaying the procedure while looking for a sponsor was also permissible. He has also argued that the government does have a compelling interest to facilitate access to contraception, but doesn’t need to do that through the ACA mandate, SCOTUS Blog noted.
In addition, some conservatives have already expressed concern that he’s not as pro-life as they would want, the Washington Examiner reported. Quin Hillyer, a conservative columnist, said those concerns were “at the margins” compared with other nominees.
However, his opinions in cases about detaining enemy combatants are decidedly not liberal. He has argued that in Guantanamo detention cases, only a preponderance of evidence is needed and hearsay evidence should be admissible.
Many cases in the D.C. Circuit are based on administrative law questions, so approximately 122 of the opinions Kavanaugh has written have been about administrative decisions. Many of his opinions would rein in President Barack Obama’s EPA regulations, but not all of them did, SCOTUS Blog pointed out. In National Mining Association vs. McCarthy, in 2014, Kavanaugh upheld an EPA program.
Of course, he doesn’t always (or most often) side with the EPA. In 2012, in Coalition for Responsible Regulation v. EPA, Kavanaugh wrote a dissent that questioned the EPA’s adoption of a 1970 statute to allow regulation of an environmental issue that the statute didn’t anticipate back then. He said the EPA was expanding its authority in greenhouse gas regulations, warning that “undue deference or abdication to an agency carries its own systemic costs.” The Supreme Court quoted from Kavanaugh’s dissent when deciding the Clean Air Act didn’t authorize the EPA in that situation.
Another opinion of Kavanaugh’s that will make him more appealing to conservatives than liberals is an article he wrote in 2009 for the Minnesota Law Review, when he stated that U.S. Presidents should be exempt from lawsuits and investigation that are “time-consuming and distracting,” since that would not serve the public interest.
In general, Kavanaugh definitely leans more conservative than liberal, and more on the side of Republicans than Democrats. But he is not always like this, and sometimes his opinions aren’t conservative enough to please Republicans.