United States President Donald Trump named Brett Kavanaugh as his nominee for the U.S. Supreme Court Monday, two weeks after Justice Anthony Kennedy confirmed his retirement. Pro-choice activists have warned that Kavanaugh’s senate confirmation could mean the end of Roe v. Wade, the 1973 landmark Supreme Court ruling that upheld women’s right to access abortions.
During his speech accepting the nomination, Kavanaugh said his “a judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the constitution as written, informed by history and tradition and precedent.”
This declaration wasn’t enough to stave off the campaign launched by pro-choice activists and lobby groups against his nomination.
NARAL Pro-Choice America has argued Kavanaugh's nomination is a key element in fulfilling the Trump administration’s promise to “see Roe vs Wade consigned to the ash-heap of history, where it belongs.”
The Yale graduate has been a judge on the U.S. court of appeals for the D.C. circuit since 2006. Before becoming a judge, he was a White House lawyer for President George W. Bush, and clerked for Justice Kennedy.
Like Kennedy, Kavanaugh is a Catholic. However, unlike Kennedy, Kavanaugh has proven he does not support fundamental abortion rights. Despite his religious affiliation, in 1992 Kennedy provided the crucial fifth vote in the case Planned Parenthood v. Casey, reaffirming the legal framework laid out in Roe v Wade.
On the day of his nomination, pro-choice and LGBTIQ groups gathered outside the steps on the U.S. Supreme Court to reject Kavanaugh, described by these groups as a person “who could wreak havoc on our health, rights, and communities for generations to come.”
These groups are sounding the alarm for a reason.
In 2017, Kavanaugh wrote the sole dissenting opinion against a 17-year-old undocumented immigrant in federal custody who sought to terminate her pregnancy. He was overruled by colleagues.
Kavanaugh has also opposed the Affordable Care Act’s contraceptive mandate, arguing a boss’ religious beliefs should override an employee’s access to birth control coverage.
Furthermore, Kavanaugh is in his fifties so he will likely enjoy a long tenure in the country’s highest court.
Trump’s nominee will face a difficult battle to get senate confirmation. High-profile democratic senators like Nancy Pelosi and Kamala Harris have announced their active opposition to his nomination.
Harris argued “Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist. As recently as last year, he disregarded supreme court precedent and opposed the healthcare rights of a vulnerable young woman,” in reference to the case of the 17-year-old undocumented immigrant.
According to research published by the Washington Post, Kavanaugh falls into a trend termed “electoral dissent” in highly political topics such as economic regulation, constitutional law and due process cases. The research also found “he invokes more economics language than his colleagues, using market-oriented arguments associated with deregulatory policy goals… and that he expressed dislike toward government (Congress and the federal government) and working class groups.
Another concern rights groups have is Kavanaugh’s stance on criminal prosecutions against sitting presidents. In 2009, he argued there was “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.”
Trump’s opposition fears Kavanaugh’s nomination is self-serving because he is unlikely to favor criminal prosecution against Trump for alleged collusion with Russia.
Kavanaugh will need 51 votes to be confirmed by the senate.
According to National Public Radio the pressure will be most intense on Democratic senators Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. The three are running for re-election in states where Trump polls highly. So far the three have committed to conduct a full vetting process but have not disclosed a decision.