Two on Kavanaugh

Monday, July 16, 2018

Shortly after President Trump nominated Brett Kavanaugh to the Supreme Court, I came across a couple of analyses of his past record that indicate where he might stand on a couple of key issues.

Regarding freedom of speech, Ken White of Popehat concludes:

Image via Wikipedia.
... Kavanaugh's work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the "weaponize free speech" movement by results-oriented thinkers. He's strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recover for speech violations.
So far, so good -- for someone nominated by a President who doesn't exactly strike me as friendly towards this crucial right.

Kavanaugh's record on abortion isn't exactly extensive, but he has been nominated by a President hostile to women's reproductive rights. Regarding how he might rule in an abortion case, we have the following from The New York Times
In a case last fall that drew widespread attention, the appeals court voted to allow an undocumented pregnant 17-year-old in immigration detention to seek an abortion without delay; the Trump administration had wanted to first transfer her to an adult sponsor for guidance.

Judge Kavanaugh dissented. He wrote that while the appeals court was bound to obey Supreme Court rulings that said that the Constitution protects a woman's right to choose an abortion, those precedents left room for the government to apply "reasonable regulations that do not impose an undue burden."

He maintained that the government was within its bounds to choose a transfer to a sponsor instead of "forcing the minor to make the decision in an isolated detention camp with no support network available." Judge Kavanaugh accused the majority of wrongly inventing "a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand." He said that barred the government from intervening to connect minors with their immigration sponsors before making such a serious life decision. "The majority's decision represents a radical extension of the Supreme Court's abortion jurisprudence," he wrote. [links omitted]
The fact that the case covers someone in government custody muddies the waters, but this falls clearly within the debate over the role a parent or guardian should play in whether a minor has an abortion. Kavanaugh's stand here doesn't tell me conclusively that he would vote to overturn Roe vs. Wade, but, given that many conservatives see government intervention with such involvement as a convenient means of interfering with the exercise of that right, this ruling doesn't look good

I haven't made up my mind on whether I support or oppose this nominee, but I am concerned about the second issue.

-- CAV

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