Despite Criticism from Abortion Advocates, Kavanaugh’s Jurisprudence Has Helped Pro-Choice Democrats

President Donald Trump shakes hands with Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Evan Vucci)
AP Photo/Evan Vucci

A panel of attorneys closely associated with Supreme Court nominee Brett Kavanaugh and his considerable case history said Tuesday that his fair-minded approach to jurisprudence has meant ruling in favor of left-wing groups based not on ideology but the letter of the law.

Justin Walker, assistant professor of law at the University of Louisville Brandeis School of Law who clerked for Kavanaugh in 2010-2011, explained at the Heritage Foundation in Washington, DC, the judge’s role in the Obama-era net neutrality case and “the theory is the marketplace itself will both generate and provide room for diversity in multiplicity of voices without a need or justification for government interference with private editorial choices.”

Walker said this same approach led to Kavanaugh’s opinion in a case between the Federal Election Commission and Emily’s List, a leftwing group that funds pro-abortion candidates’ campaigns:

“You see him applying these neutral principles in order to side with a political action group that is on the left side of politics and so for those out there who worry about judges, in Justice [Elena] Kagan’s words, ‘weaponizing the First Amendment in order to help their own political causes,’” Walker said. “I think this is a good example of a Republican-appointed judge applying the First Amendment in a neutral, independent, fair-minded, mainstream way in a case that helped Emily’s List — a liberal group that supports abortion rights and female, pro-choice candidates.” 

“What he said there is that the FEC’s regulations of these groups was invalid because the FEC was restricting how much money they could spend to speak,” Walker said, noting that Kavanaugh distinguished this from directly funding candidates — an opinion that came before the Supreme Court’s decision in Citizens United, which upheld his reasoning.

Daniel Shuchman, a New York investor and free speech activist, articulated Kavanaugh’s pragmatic approach in the Emily’s List case in a commentary published on the Real Clear Politics website entitled “Kavanaugh Empowers Pro-Choice Democratic Women.”

Supreme Court nominee Brett Kavanaugh empowered numerous pro-choice Democratic women political candidates, helping them raise hundreds of millions of dollars in campaign contributions.  Now, he is being denounced by those same women as unfit to be a public servant.

In 2005, Emily’s List, an advocacy group that claims to have raised over $500 million exclusively to support female Democratic politicians who favor abortion rights, sued the Federal Election Commission challenging new regulations limiting how non-profit groups raise money and spend it to advance the causes and candidates they believe in. The regulations at issue in Emily’s List v. Federal Election Commission had the effect of “substantially restricting the ability of non-profits to spend money for election-related activities such as advertisements, get-out-the-vote efforts and voter registration drives.”  Emily’s List argued that these regulations violated the First Amendment of the Constitution.

The case reached the United States Court of Appeals for the District of Columbia [Circuit] in 2009.  In a sweeping opinion whose significance is often obscured by the fame accorded other campaign finance cases like Citizens United (decided by the Supreme Court the following year), Judge Kavanaugh wrote for the court that non-profit groups, like individuals, have the right to spend unlimited amounts of money promoting issues or candidates of their choice.

“The Supreme Court had long made itself clear, according to Judge Kavanaugh: Individuals have the right to spend whatever amounts they desire to advance their views on issues and political candidates,” Shuchman wrote.
Shuchman noted the irony of the statement Emily’s List issued after Kavanaugh was nominated by President Donald Trump in July to replace his former boss, retired Justice Anthony Kennedy.

The statement said Kavanaugh was “unfit to serve the American people,” without conceding how his judicial philosophy had benefited its cause be preserving civil liberties.

Moreover, the panelists at the Heritage event — which also included Jamil Jaffer, adjunct professor of law and director of the National Security Law & Policy Program at George Mason University Antonin Scalia Law School; Jennifer Mascott, assistant professor of law at George Mason University Antonin Scalia Law School who clerked for Kavanaugh in 2006-2007; and Chris Walker associate professor of law at the Ohio State University Moritz College of Law — described Kavanaugh as a “textualist” committed to the separation of powers and the United States Constitution who would rule from the bench accordingly.

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