North Carolina’s Republican U.S. senators applauded President Trump’s nomination Monday of federal appeals court Judge Brett Kavanaugh to the Supreme Court, where Kavanaugh would replace retiring Justice Anthony Kennedy.
Kavanaugh is Trump’s chance to push the Supreme Court to the right. Kennedy was often a swing vote, but Kavanaugh is embedded in the Republican Party with a record friendly to limited government, Second Amendment rights, and separation of powers.
Kavanaugh has served for 12 years on the U.S. Court of Appeals for the D.C. Circuit, where he has written about 300 opinions. He worked in the George W. Bush White House.
Both North Carolina’s senators formally backed the president’s nominee, who will have to clear the Senate, which has a 51-49 GOP majority.
“Judge Kavanaugh undoubtedly has the right qualifications to serve as an associate justice on the Supreme Court,” Sen. Thom Tillis, a member of the Senate Judiciary Committee, said in a press release. “I hope all my colleagues, regardless of their party affiliation, will ignore the pressure from partisan special interest groups by fairly and thoughtfully assessing Judge Kavanaugh.”
Sen. Richard Burr said he was confident the Senate would provide its “advice and consent” to the president “fairly and promptly.”
“President Trump has put forth a highly qualified and respected candidate committed to the rule of law,” Burr said in a statement. “Judge Kavanaugh’s credentials are impeccable, and as a judge for the U.S. Court of Appeals for the D.C. Circuit he has considered many of the most pressing legal questions of our time.”
In his introductory speech, Kavanaugh thanked the president, spoke about his family and faith, and defined his judicial philosophy.
“My judicial philosophy is straightforward,” Kavanaugh said at Monday’s announcement. “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.”
If Kavanaugh replaces Kennedy, Democrats fear a more conservative court could overturn or undermine the abortion rights protected under Roe v. Wade. At Kavanaugh’s confirmation hearing in 2006, when asked if he considered Roe v. Wade to be an “abomination,” Kavanaugh said, “if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court.”
Skeptics on the left have pointed to Kavanaugh’s dissent last year from a D.C. Circuit court ruling allowing an undocumented minor in detention to get an abortion without first being transferred to a immigration sponsor.
His dissent lambasted the majority for thinking “the government must allow unlawful immigrant minors to have an immediate abortion on demand.” But he recognized “Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.”
“The government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh said in his dissent. “The Supreme Court has repeatedly held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.”
Trump said he didn’t ask any nominee for his or her personal opinions on abortion, citing President Reagan’s legacy.
Kavanaugh is known for dissenting from a 2011 Second Amendment case, when a D.C. Circuit Court decision upheld the District of Colombia’s ban on most semi-automatic rifles. He argued ownership of semi-automatic rifles is protected under the Constitution.
He criticized the broad powers of independent agencies as a “headless fourth branch of the U.S. government” that “pose a significant threat to individual liberty” in his dissent from the D.C. Circuit court ruling that upheld the structure of the Consumer Financial Protection Bureau.
He has drawn scrutiny from the left for proposing in 2009 that ”Congress might consider a law exempting a president — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
Kavanaugh said the Constitution gives Congress an alternative to criminal investigations of a sitting president: impeachment.
“Criminal investigations targeted at or revolving around a president are inevitably politicized by both their supporters and critics,” he wrote in a 2009 Minnesota Law Review article. “If the president does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”
Senate majority leader Mitch McConnell, R-Kentucky, who in 2016 blocked former President Obama’s nomination of appellate Judge Merrick Garland to the Supreme Court, has vowed to keep the Senate in session until the end of the year if needed to confirm judicial appointments, now including Kavanaugh’s.
Democrats may use Kavanaugh’s record — which spans almost 300 decisions, a stint in the Bush White House, and as an attorney under former independent counsel Kenneth Starr during the Monica Lewinsky scandal — as an excuse to delay confirmation hearings and a pre-election vote.