Kavanaugh the good umpire the Supreme Court needs

Greg Nash

When President Donald Trump announced his nomination of Judge Brett Kavanaugh to the Supreme Court, he fulfilled— for the second time — his campaign promise to nominate judges to the high court who will interpret the Constitution according to its original meaning.

In his 12 years on a federal court of appeals, Judge Kavanaugh developed a clear, consistent record of textualism and originalism. This means that he can be relied upon to protect religious liberty and ensure that administrative agencies stay within their legal authority.

{mosads}Judge Kavanaugh’s respect for the Constitution and the proper role of a judge is evident from a speech last year at Notre Dame Law School in which he likened the role of a judge to that of an umpire, one who is mindful of a fair and independent process and the law as it is written, not bound by allegiance to a team.


In his work as a judge,Kavanaugh has a clear record of being that umpire in his cases, ruling on the letter of the law and the Constitution, not out of loyalty to a worldview or political party. This is great news for Americans concerned about protecting religious freedom and making sure administrative agencies stay within the realm of their legal authority.

While on the Court of Appeals for the D.C. Circuit, Judge Kavanaugh often defended religious liberty. In Priests for Life v. HHS, for example, he argued that the Health and Human Services contraception mandate, despite the “accommodation” offered by the Obama administration after it lost the Hobby Lobby case, imposed a “substantial burden” on religious organizations.

Kavanaugh voted to prevent the Obama administration from forcing religious organizations to violate their conscience by providing abortion-inducing drugs to their employees. His position was later upheld when the Supreme Court vacated the D.C. Circuit’s panel decision in Zubik v. Burwell.

Similarly, when atheist groups challenged the constitutionality of the presidential oath of office, in which the president swears “so help me God,” Judge Kavanaugh took a firm stand based on originalist principles.

He pointed to both text and tradition in concluding, “the words ‘so help me God’ in the Presidential oath are not proselytizing or otherwise exploitative,” and therefore did not constitute an establishment of a state religion; and that “like the practice of legislative prayer, use of ‘so help me God’ in oaths for government officials is deeply rooted in the Nation’s history and tradition.”

In addition to his efforts to protect the religious liberty, Judge Kavanaugh has a record of enforcing strict limits on the administrative state. His originalist and textualist principles are clear in these rulings scaling back overreach by administrative agencies.

He blocked overreaching orders from several federal agencies, including the Obama-era net neutrality rule imposed by the FCC. In two separate cases, Kavanaugh’s dissents in finding certain EPA regulations exceeded their statutory limits were upheld in 5-4 opinions written by Justice Scalia.

One case raising concern for some conservatives is Seven-Sky v. Holder, in which Judge Kavanaugh wrote that the courts didn’t yet have jurisdiction to hear the case.

But Kavanaugh strongly criticized the government’s arguments in defense of ObamaCare, arguing it lacked a “principled limit,” created an “expansion of congressional authority,” and “a potentially significant infringement of individual liberty.”

Kavanaugh has also proven himself to be a skeptic of so-called Chevron deference, which dictates that judges should defer to federal agencies’ interpretations of certain issues or questions. 

Kavanaugh has called Chevron deference “an atextual invention by courts…nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch” and has warned against excessive judicial deference to agency interpretation.

This should give conservatives confidence that if confirmed to the Supreme Court, Kavanaugh will ensure that executive agencies stop usurping power that properly belongs to elected representatives.

Just like Neil Gorsuch before him, it’s clear that Judge Kavanaugh will make another great justice, one who will protect the constitutional rights of all Americans. The Senate should act swiftly to confirm Kavanaugh so that he can begin protecting our constitutional rights and the separation of powers.

Ken Blackwell is a former domestic policy advisor to the Trump Transition team a former Ohio State Treasurer, Ohio Secretary of State and Mayor of Cincinnati.

Tags Antonin Scalia Brett Kavanaugh Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Conservatism in the United States Donald Trump Law Neil Gorsuch Originalism Supreme Court of the United States United States Court of Appeals for the District of Columbia Circuit United States courts of appeals

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