The Facts About Kavanaugh’s Record on Religious Liberty, Obamacare, and Presidential Powers

Katrina Trinko / Daniel Davis / July 10, 2018

This is a lightly edited transcript of an interview on the July 10 episode of The Daily Signal podcast.

Katrina Trinko: Joining us today is Elizabeth Slattery, a legal fellow at The Heritage Foundation and the host of “SCOTUS 101,” her terrific podcast on Supreme Court matters.

Elizabeth, what did you think about President Trump’s decision to pick Brett Kavanaugh as the new nominee, and what do you think—based on his record as a judge, on his writings—he will be like on the Supreme Court?

Elizabeth Slattery: Thanks so much for having me. I think that President Trump hit it out of the park with this selection.

Brett Kavanaugh has sterling academic credentials—12 years of service on the [U.S. Court of Appeals for the] D.C. Circuit, which has long been held to be the stepping stone to the Supreme Court. Several of the current members of the Supreme Court came from the D.C. Circuit.

He’s battle-tested. He’s already been through a contentious confirmation hearing when he was appointed to the D.C. Circuit during George W. Bush’s administration.

Looking at his record, he is committed to applying statutes according to their texts, and the Constitution according to the original meaning of those provisions.

Daniel Davis: He’s been getting a lot of flak immediately, which we expected with any of the nominees. But, for example, Sen. Cory Booker, a Democrat from New Jersey, tweeted out “Kavanaugh has written extensively on his beliefs that a sitting president shouldn’t be subject to criminal investigations or civil lawsuits. This all but assures he would work to shield Trump from any litigation or criminal proceeding related to the special counsel’s investigation.”

A lot of people are picking up on this narrative that Trump picked him to somehow shield himself from investigation. Your response to that argument and about what Kavanaugh had written on the subject?

Slattery: Yeah. I think that Booker’s characterization is a bit unfair to Judge Kavanaugh.

He, of course, had worked for independent counsel Ken Starr on the Lewinsky-Clinton matter back in the ’90s, and also the investigation of the death of [Clinton White House aide] Vince Foster. Kavanaugh was the principal drafter of the Starr report to Congress.

Then during the Bush administration, he went on to serve as the staff secretary to President Bush. Drawing from these personal experiences,  he decided to write a law review article in 2009, which I would point out was during President Obama’s administration.

I think Kavanaugh should get some credit for this, saying that in his view, he thought that Congress needed to pass a law saying that a sitting president should be protected from indictment, prosecution, investigation, and those things, because it was disruptive to our country and to the president’s being able to discharge the duties of his office.

His view is that, right now, a president isn’t immune, and he was suggesting to Congress that they should consider passing the law.

Trinko: You’re saying essentially he was saying something that he wouldn’t be ruling on, because he doesn’t make the laws; he would be explaining the laws as a judge?

Slattery: Exactly.

Trinko: Enforcing—that’s the word I was looking for.

Sen. Elizabeth Warren, Democrat from Massachusetts, was also on MSNBC last night and … she tweeted, “Brett Kavanaugh’s record as a judge and lawyer is clear: hostile to health care for millions, opposed to [the Consumer Financial Protection Bureau and] corporate accountability, thinks presidents like Trump are above the law—and conservatives are confident that he would overturn Roe v. Wade. I’ll be voting no.”

I mean, this sort of comes as expected, but what do you think? How should Kavanaugh be dealing with liberal senators like Warren?

Slattery: This shows that the left views the results of cases. They don’t seem to care about the method in which Kavanaugh got to any decision dealing with any of those issues that you mentioned.

But really, that’s what we, at Heritage, care about, is the approach that a judge takes and their judicial philosophy. Kavanaugh has written extensively: law review articles, he’s done speeches, he’s written a book all about judicial precedent along with then-Judge Neil Gorsuch, who he went to high school with, which I think is just really great. And they clerked for Kennedy together.

He’s tackled a lot of these big legal issues, and he’s talked about his view of how he approaches the law. We have a decade—well, 12 years—of his service on the D.C. Circuit to see how he approaches the law. He goes by the text.

He says the text of the law is the law. Judges should not try to update statutes that don’t work, or read our preferences into them, and the same with the Constitution. You try to look at the history and the text, and figure out what it meant when it was ratified.

Davis: There’s also been some criticism from the right that Kavanaugh isn’t sufficiently strong on religious liberty.

David French from National Review wrote a piece in The Washington Post saying, “In Priests for Life versus Department of Health and Human Services, Kavanaugh wrongly held that the government had a compelling interest in facilitating access to contraceptives for employees of the specific religious plaintiffs in the case.”

Your thoughts on Kavanaugh on religious liberty?

Slattery: Again, I think this is an unfair characterization of Judge Kavanaugh’s dissenting opinion in the Priests for Life case, which went on to the Supreme Court, and the Supreme Court reversed, siding with Kavanaugh.

What he said was: I’m going to assume, for the purposes of this opinion, that the government has a compelling interest. I’m not going to get into it, because five justices—the dissenters from the Hobby Lobby decision, along with Justice Kennedy, writing in a concurrence—already said that they think the government has a compelling interest to ensure access to contraceptive services. But even with that “compelling interest,” the Obama administration still loses.

He didn’t need to go there. I think the criticism is a little hollow.

Trinko: Along those lines, you made an argument in your piece with John Malcolm that we published on The Daily Signal about how Kavanaugh was a “home run.”

But you said, in his time in the D.C. Circuit, he was often playing a long game, that he was looking to see if certain things, I believe, could reach the Supreme Court or appeal to specific justices, perhaps his former mentor—Justice Anthony Kennedy. Could you maybe expound on that?

Slattery: Sure. He once said, “When Justice Kennedy says something, I listen.” He said that in a speech. I think that’s a good thing. It was good advice at the time for lawyers and for judges, that now that Justice Kennedy is retiring, [is] less so.

But a lot of Judge Kavanaugh’s time on the D.C. Circuit, he’s been in the minority. He’s on a court that’s dominated by [Democrat-appointed] judges, and so, he’s oftentimes dissenting.

There have been a number of cases where his dissents sort of lay the groundwork for what the Supreme Court ultimately holds when they’re reversing the liberal decisions that they disagree with.

I think he’s going to be a great addition to the Supreme Court. Anyway, I think you can check out more about his record in The Daily Signal article that John and I wrote.

Trinko: Others on the right had said that Kavanaugh made a bad call in an Obamacare case—essentially, that he called the penalty a tax before [Chief] Justice John Roberts’ famous ruling. What are your thoughts on how Kavanaugh handled this particular Obamacare case?

Slattery: Judge Kavanaugh’s dissent, and this was the [Seven-Sky v. Holder] case, one of the precursors to the NFIB decision from the Supreme Court. … He said that the individual mandate was unprecedented on the federal level in American history. He was very concerned about the expansion of congressional authority.

But in this view, he thought this federal law, the Anti-Injunction Act [inaudible] the court from hearing the case at that time, because the mandate provision had not gone into effect. And so he thought that this Anti-Injunction Act prevented them from having jurisdiction at that time.

Now, the Supreme Court disagreed when they ultimately heard the case, but I would point out that Judge Kavanaugh, whatever you think about his analysis on the Anti-Injunction Act, he had heard other cases involving this same federal law, and his approach had been consistent.

Even though he thought that this was an important constitutional issue, and I think, in his heart of hearts, he wanted to reach the issue, but he thought, “I have to be true to the way I read the law, and the principles that I follow.”

He wasn’t willing to put those aside to reach a constitutional issue that he wanted to. I think that, at the end of the day, that’s a good thing.

Davis: It’s going to be an exciting few weeks coming up, especially for you, Elizabeth, as you follow this. But thanks for writing that piece yesterday and for joining us in studio.

Slattery: Thanks for having me.

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