4 Reasons Why You Won’t Like Brett Kavanaugh on the Supreme Court

Supreme Court room

Judge Brett Kavanaugh was nominated by the President to replace the retiring Justice Anthony Kennedy on the U.S. Supreme Court. As a judge, public speaker, teacher, and public servant, Kavanaugh's record is an open book, and his judicial views are clear.

You really won't like a Justice Brett Kavanaugh if:

1. You want judges who will legislate from the bench.

Democracy doesn't always get you what you want. You have to convince a majority of people to vote for a law you favor. You have to elect like-minded legislators. It doesn't always work. But convince a judge that what you want ought to be a constitutional "right," or that a certain law could use some judicial tweaking to bring it more in line with results you'd like to see, and you can bypass all the difficulties involved in democracy.

And, it's worked before. Abortion on demand through all nine months of pregnancy, for one. Same-sex marriage, for another.

If you want a judge who will create new laws from the bench, Judge Kavanaugh will be a grave disappointment to you. He is a firm supporter of the "separation of powers" doctrine that is built into our Constitution, and he even teaches courses on it at various law schools. He believes that judges should stay in their judicial lane and interpret and apply the nation's laws as written, unless they are unconstitutional, and not make up new laws whenever judges disagree with the wisdom of one. And one of his judicial heroes is the late Justice Antonin Scalia, another big believer in the limited role of the judiciary.

2. You like big, unaccountable government agencies that can create laws you like and enforce them.

This is another popular (in some circles) way to avoid the problems that democracy creates with its obligatory elections, compromises, coalition building, persuading people to support legislation, and accountability from voters. That all takes time and you want laws created – and enforced – now. Federal agencies work mostly under the radar and out of the spotlight of voters. Those agencies are filled with people who don't have to run for re-election. It's a faceless bureaucracy. There's very little accountability. An agency can pass laws through a process called "rule-making" that even Congress may oppose. And judges will defer to them.

If you like this system, Kavanaugh will frustrate you. The Constitution delegates all legislative authority to Congress, which is accountable to voters. Kavanaugh's record reveals his healthy skepticism of agency overreach, as well as the "deference" that courts must give to their actions. As a federal appellate judge for 12 years, Kavanaugh has overruled federal agency actions 75 times.

3. You dislike the freedom of religion.

If you believe the First Amendment's guarantee of religious freedom is outmoded, unnecessary, and an impediment to progress, you have a dilemma. Religious voters tend to vote a certain way on issues involving morality. You may believe that religion has no place in the political life of the country and should be restricted to the insides of churches and homes. But you are in a minority in this view. What do you do? You try to get legislation passed that ignores traditional morality in favor of contemporary cultural fads, only to see such measures fail to achieve a majority vote due to the religious worldview of most voters.

One way out of such a dilemma is to get judges to impose your wishes under the guise of a new Constitutional right or re-interpreting an old law to fit modern times. Seven justices of the Supreme Court gave us abortion on demand. Five gave us same-sex marriage. Numerous federal judges, including a few currently on the Supreme Court, attempted to force nuns and other religious employers to provide possible abortion-causing drugs in their employee health plans. Those judges all have lifetime appointments, and can't be removed for their judicial activism. You might believe we need more such judges.

If that's your hope, Kavanaugh is not your justice of choice. As a federal appellate judge, Kavanaugh stood up for those religious employers' conscience rights when a federal agency attempted to force them to violate their deeply held religious beliefs. He rejected arguments that Presidential inaugurations can't include prayer or the inclusion of "so help me, God" in the Presidential oath of office. His record and everything we know about him portrays a judge who will defend the freedom of religion without apology. He's not for you.

4. You dislike the freedom of speech.

The question you keep asking is "What is there to debate?" I know, the cultural and political elites have already decided for the rest of us what is appropriate for society, its laws, and what worldview should drive public policy in general. Any argument to the contrary is offensive, constitutes violence, or is simply bigotry. It's time to rein in the First Amendment guarantee concerning freedom of speech and protect the people offended by objectionable speech. The enlightened populations of Europe and other nations do not place speech on the same pedestal as the United States, and so it's time to become more like them. You are certain we need judges with a more enlightened view of the dangers of free speech, who will begin placing new restrictions on it. This is necessary, you say, in order to heal the great divide in the country.

If that's your view, I have bad news for you: Judge Kavanaugh doesn't view the freedom of speech as needing watering down. His judicial decisions show him to be a constitutionalist in the mold of the late Justice Scalia, who believed the old axiom that the remedy for bad speech is not censorship, but rather more and better speech. Nor does he believe that you can discriminate against certain kinds of speech that you find offensive, like religious speech. In a recent oral argument at the D.C. Circuit Court of Appeals, involving Washington D.C.'s denial of a religiously themed advertisement for the city's buses, Judge Kavanaugh called the city's actions "pure discrimination."

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