Federal Courts and Nominations

RELEASE: Heavy Burden on Kavanaugh to Convince Senators He Is a Judge Who Will Be Faithful to the Entire Constitution

WASHINGTON—Hearings on Judge Brett Kavanaugh—President Trump’s nominee to replace the retired Justice Anthony M. Kennedy—are scheduled to begin in the Senate Judiciary Committee next Tuesday, September 4. Today, for the benefit of Senators and the public, Constitutional Accountability Center is releasing a comprehensive analysis of Judge Kavanaugh’s jurisprudence, examining his approach to cases across a wide spectrum of issues, rather than just one issue in particular.

Read CAC’s Issue Brief, “Supreme Court Nominee Brett Kavanaugh: Will He Respect The Whole Constitution?

CAC Civil Rights Director David Gans, author of CAC’s analysis, said, “Both in his writings and his opinions, Judge Kavanaugh has elevated the importance of the Constitution’s structure over the text and history of critical Amendments that have been added to the Constitution over the course of more than 200 years. Virtually all of Judge Kavanaugh’s opinions that discuss the Constitution’s text and history concern the Constitution’s structure, and even in those opinions, he often gets the text and history wrong, taking a view of the Constitution’s structure that turns our nation’s charter on its head. Judge Kavanaugh’s record suggests that he is a selective originalist, one who unfortunately has turned a blind eye to the amended Constitution’s text, history, and values when construing our founding document’s many broadly worded guarantees of equality and individual rights.”

“During his tenure on the D.C. Circuit,” Gans continued, “Judge Kavanaugh has stretched the rules of precedent to move the law sharply to the right. He has sought to vastly expand protections for some rights, while permitting the government to run roughshod over others. These results may please conservatives, but they are badly out of step with the Constitution’s text, history, and values. “

The analysis released today covers Judge Kavanaugh’s jurisprudence across an array of issues divided between two broad categories: Judge Kavanaugh and Constitutional Structure, and Judge Kavanaugh and the Bill of Rights. Under Constitutional Structure, today’s Issue Brief examines Kavanaugh’s approach to Presidential Power in Independent Agencies and Presidential Non-Enforcement and Immunity, as well as the Enumerated Powers of Congress. Under the Bill of Rights, it looks at Kavanaugh’s treatment of the First Amendment’s Guarantee of Freedom of Speech in Campaign Finance, Net Neutrality and Cable Regulation, and Commercial Disclosure; the Second Amendment’s Right to Bear Arms; the Fourth Amendment’s Guarantee Against Unreasonable Searches and Seizures; and the Fifth Amendment’s Protection of the Right To Choose Abortion and Other Fundamental Rights.



CAC Issue Brief, “Supreme Court Nominee Brett Kavanaugh: Will He Respect The Whole Constitution?” David Gans, August 30, 2018: https://www.theusconstitution.org/wp-content/uploads/2018/08/Supreme-Court-Nominee-Brett-Kavanaugh-Will-He-Respect-The-Whole-Constitution.pdf


Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org.


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