President Donald Trump has extolled the late conservative icon Antonin Scalia, and so has his new nominee for the Supreme Court, Brett Kavanaugh.
In some of his most forceful speeches in recent years, Kavanaugh has referred to the conservative justice who served from 1986-2016 as a “role model” and a “hero.”
Kavanaugh, a 53-year-old appeals court judge nominated to succeed the more moderate Justice Anthony Kennedy, has extensively praised Scalia, in one speech noting there are “many” examples of the conservative jurist influencing him. He has hailed his judicial philosophy as “simple but profound,” one that he hoped would leave a long-lasting legacy.
I loved the guy,” Kavanaugh said at a conference in June 2016 at George Mason Law School, which has been named after Scalia. “To me, he was and remains a hero and a role model. He thought carefully about his principles. He articulated those principles. And he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left.”
A year later, Kavanaugh lavished similar praise on Scalia, delivering a keynote address at Notre Dame Law School and saying: “Justice Scalia was and remains a judicial hero and role model to many throughout America.”
The confirmation of Kavanaugh – a federal appeals court judge with more than 300 opinions to his name – would almost certainly tilt the Supreme Court further to the right. He has been nominated to replace the long-time swing vote Kennedy, a 30-year veteran of the court who has voted in favor of LGBT rights, abortion and affirmative action.
The Senate Judiciary Committee is preparing to scrutinize Kavanaugh’s public remarks and rulings while on the US Court of Appeals for the District of Columbia Circuit, where he has sat since 2006, at his confirmation hearings, set to begin September 4. Kavanaugh earlier worked for President George W. Bush and for independent counsel Ken Starr as he investigated President Bill Clinton in the late 1990s.
Kavanaugh lauds ‘an apostle of restraint’
In his 2016 address at George Mason, Kavanaugh expressed his belief that some of Scalia’s dissenting opinions would one day become the law, including his dissent in a 1988 ruling upholding the constitutionality of an independent counsel and in a 2004 case where Scalia pushed for greater protections in certain circumstances for a US citizen being held as an enemy combatant.
At one point in the speech, Kavanaugh singled out two of Scalia’s most controversial dissents, in cases upholding same-sex marriage and abortion rights, to show how the late justice argued against creating rights for individuals not spelled out in the Constitution. Kavanaugh did not express his own position on those hot-button cases.
Kavanaugh, who once served as a clerk to Kennedy, has showered some of his warmest praise on Scalia. He also has said that when he was a law student in the 1980s, the late Chief Justice William Rehnquist was his “first judicial hero.”
Whether Kavanaugh would rule like Scalia across the board is debatable, but Kavanaugh’s 2016 remarks suggest that Scalia’s three decades on the Supreme Court have had a lasting impact on him.
“Justice Scalia was an apostle of restraint and an apostle of engagement,” Kavanaugh said.
In his 2016 speech, Kavanaugh said that it is “my belief and hope” that the justice changed “statutory interpretation forever.”
In interpreting statutes, Scalia argued that judges should focus on the text of a law and brush aside congressional floor statements and other artifacts of legislative history. He was an “originalist” on the Constitution, looking to the document’s 18th Century meaning and rejecting the notion that it evolved with the times.
In one example of Scalia’s influence on him, Kavanaugh highlighted the justice’s 1989 vote to uphold the constitutional right to burn the American flag under the First Amendment.
“At the time, as a second year law student I despised his vote in the case,” Kavanaugh said. “Today, I agree with it. That’s one of my many personal examples of Justice Scalia’s influence on me.”
Scalia’s opinions on abortion, same-sex marriage under scrutiny
A key point of focus at his September confirmation hearings will be how he views polarizing social issues, like abortion and gay rights. And in his George Mason speech, Kavanaugh highlighted two of Scalia’s most controversial dissents on those topics, without either praising his opinions or raising concerns about them.
In 1992, Scalia dissented from a 5-4 ruling to uphold abortion rights in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey. That decision reinforced the 1973 landmark Roe v. Wade ruling that made abortion legal nationwide. In his heated dissent, Scalia declared that judges should not decide the issue, rather that it should be left to elected officials and the democratic process.
“We should get out of this area,” he said in 1992, “where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
In 2015, Scalia also dissented from the court’s decision, Obergefell v. Hodges, declaring a right to same-sex marriage. In his dissent, Scalia called the ruling a “threat to American democracy.”
Kavanaugh said in his 2016 speech that those two dissents are a sign of how Scalia believed that courts had “no legitimate role … in creating new rights not spelled out in the Constitution.”
“For Justice Scalia, it was not the court’s job to improve on or update the Constitution to create new rights,” Kavanaugh said. He added: “Put simply, he was deferential when the Constitution and statutes called for deference. He was not deferential when they did not.”
In private meetings with senators, Kavanaugh has been careful in how he has addressed issues he may rule on, including abortion.
In an October 2017 case at the DC Circuit, Kavanaugh acknowledged that Roe v. Wade and Planned Parenthood v. Casey are precedents that lower court judges like himself follow. Senators are likely to try to explore his views further, because while lower court judges are bound by Supreme Court precedent, the justices have the power to roll back and change precedent.
The White House would not comment when asked if Kavanaugh shared views similar to Scalia on abortion and same-sex marriage. But Helgi Walker, a former Kavanaugh colleague in the Bush White House who is now a partner at a Washington law firm, said Kavanaugh’s comments about Scalia do not necessarily reflect Kavanaugh’s own views.
“This is a speech paying tribute to the late, great Justice Scalia,” Walker said.