- The Washington Times - Sunday, October 6, 2019

Justice Brett M. Kavanaugh marked the first anniversary Sunday of his overcoming a bruising confirmation battle to claim a seat on the Supreme Court, solidifying a conservative majority forged by President Trump’s nominations.

His presence moved the bench to the right and opened the door to new tests of abortion rights, religious liberty and other longstanding rulings.

“Conservatives know how important the court is and how significant President Trump’s ability to nominate these two justices was, so this is just another example of his judicial legacy,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.

Mr. Trump’s second high-court pick took the seat of retired Justice Anthony M. Kennedy, who was long seen as the bench’s swing vote. It’s now Chief Justice John G. Roberts Jr. who has taken on the pendulum role — not Justice Kavanaugh, though he did side with Justice Roberts 92% of the time last term, according to the Empirical SCOTUS Blog.

Justice Samuel A. Alito, who has built a reputation as a loyal rightist voice on the bench, sided the most with Justice Kavanaugh last year.

“The court is now comprised of such a large number of textualists and originalists,” said Ms. Severino.

Justice Kavanaugh made his stamp on the issue of religious liberty in a case last term that tested the legality of a nearly 100-year-old Peace Cross on public land in Maryland that was built as a tribute to fallen World War I soldiers.

A secular group challenged the memorial, saying it ran afoul of the Establishment Clause of the Constitution that prevents the government’s endorsement of religion, also loosely called the separation of church and state.

In another opinion defending the constitutionality of the cross, Justice Kavanaugh wrote, “The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition.”

And in a case brought by a Buddhist death row inmate in Texas, challenging prison policies that only permitted a prison chaplain or a Muslim imam in the execution chamber rather than the clergy of his religion, Justice Kavanaugh sided with the Buddhist man.

“The government may not discriminate against religion generally or against particular religious denominations,” Justice Kavanaugh said.

It was a reversal for the court, which stayed the man’s execution at the time, but failed to do so for a Muslim inmate in Alabama about a month earlier. He raised similar arguments that the Alabama prison was not permitting his imam in the chamber.

Court watchers, though, say less is known about how Justice Kavanaugh will come down on legal conflicts dealing with abortion.

Curt Levey, president of the Committee for Justice, said pro-life groups hoping Justice Kavanaugh is more friendly to their arguments than Justice Kennedy had been likely will be pleased.

While he thinks Justice Kavanaugh could uphold some limitations on abortion, Mr. Levey is doubtful the newest justice would be a solid vote to overturn outright Roe v. Wade, the 1973 landmark ruling legalizing abortion nationwide.

“He’s gone out of his way to seem like a friend to women,” Mr. Levey said, pointing to his grueling confirmation hearing in which he weathered an onslaught of unsubstantiated allegations of sexual misconduct from his high school and college days.

The charge against Justice Kavanaugh was led by Christine Blasey Ford, who testified at the confirmation hearings and accused Justice Kavanaugh of sexually assaulting her when they were teenagers at a high school party in Washington’s affluent Maryland suburbs. Her allegation was never corroborated and Justice Kavanaugh vehemently denied any wrongdoing.

But progressives mounted fierce opposition to his nomination largely on the grounds that he would rule against women’s rights.

Debra Katz, Ms. Blasey Ford’s attorney, even said her client came forward because she wanted an “asterisk” by Justice Kavanaugh’s name when he rules on abortion-related cases.

More than a half-million dollars was raised in support of Ms. Blasey Ford, who said she had to move her family due to security concerns during the hearing.

Ms. Katz and Ms. Blasey-Ford refused to comment for this report.

They also refused to disclose where the funds were spent. In a post to the GoFundMe account late last year, Ms. Blasey Ford said she would use the money for security purposes.

A year after the confirmation battle, Ms. Blasey Ford remains the bane of conservative activists.

“A year ago Debra Katz claimed her client Christine Blasey Ford did not have a political motivation in bringing her allegations, but now the cat’s out of the bag. Katz admitted Ford was motivated in part by Roe v. Wade,” said Mike Davis, president for the Article III Project that fights for the confirmation of Mr. Trump’s judicial nominees.

“The Justice Department should investigate Ford for potential perjury because her attorney is now directly contradicting her sworn testimony before the Senate Judiciary Committee — so either Katz is lying or Ford is lying,” he said.

Meanwhile, court watchers say it’s still somewhat early to know exactly where Justice Kavanaugh will fall on the conservative wing of the court.

“Justices often develop their own style of jurisprudence particular to the Supreme Court after the first term so it is hard to draw clear inferences about Kavanaugh,” said Adam Feldman, founder of the Empirical SCOTUS Blog.

“There is still a question about where he will land. I think he will land closer to Roberts,” Mr. Levey said. “The further we get from his confirmation, the true Kavanaugh will come out.”

Justice Kavanaugh, though, only agreed with Justice Neil M. Gorsuch, the president’s first high court pick, 70% of the time.

That’s the lowest percentage of agreement between two justices appointed by the same president in more than 50 years.

Justice Gorsuch has been more like the late Justice Antonin Scalia, having a libertarian bent, while Justice Kavanaugh has been more of a moderate like Justice Roberts, said Josh Blackman, a professor at South Texas College of Law.

“I don’t think there is a single type of Trump nominee,” Mr. Blackman said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

Copyright © 2022 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide