Supreme Court nominee Brett Kavanaugh votes one way but sees both sides

WASHINGTON – Supreme Court nominee Brett Kavanaugh sought to strike down the District of Columbia's gun registration requirement and ban on semi-automatic rifles in 2011. But he said, "I greatly respect the motivation" behind the laws.

The following year, he opposed a ruling that allowed the Environmental Protection Agency to regulate greenhouse gases, though he acknowledged that "EPA issued these regulations to help address global warming, a policy issue of major long-term significance to the United States."

Later that year, Kavanaugh upheld South Carolina's photo identification law because it allowed for exceptions. "In some states ... minorities disproportionately lack photo IDs," he wrote for a three-judge panel. "That racial gap has exacerbated concerns about voter ID laws."

And in 2015, he sided in part with a religious non-profit seeking to avoid a federal mandate that it provide insurance coverage for birth control. At the same time, he said, "the government has a compelling interest in facilitating access to contraception."

"It is commonly accepted that reducing the number of unintended pregnancies would further women's health, advance women's personal and professional opportunities, reduce the number of abortions, and help break a cycle of poverty," Kavanaugh wrote.

From gun control to birth control, environmental protection to voting rights, President Trump's nominee for the Supreme Court has been a reliable conservative vote on its stepping-stone, the U.S. Court of Appeals for the District of Columbia Circuit.

At the same time, Kavanaugh has displayed a degree of understanding that often borders on empathy for the policy goals of those he rules against.

"As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us," he wrote in the Washington, D.C., gun control case. "My view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy."

That ability to see issues from other points of view has given some liberals hope that if he wins confirmation, Kavanaugh could be an honest broker on the court and not a knee-jerk addition to the conservative majority.

Akhil Reed Amar, a liberal constitutional scholar who taught Kavanaugh at Yale Law School, says the 53-year-old judge's “combination of smarts, constitutional knowledge and openness make him clearly superior.”

"He goes out of his way to make sure he’s hearing both sides,” Amar says

Abortion and health care

To be sure, most of Kavanaugh's roughly 300 opinions, concurrences and dissents came out as conservatives hoped. That's why he was nominated to succeed retiring Justice Anthony Kennedy, whose own brand of conservatism veered left on key social issues such as abortion and gay rights.

But unlike the late Justice Antonin Scalia, he often seeks to appease rather than aggravate the other side.

Kavanaugh's dissent last year in a case involving an undocumented teenager in federal custody who wanted an abortion is a case in point. He could have joined Judge Karen Henderson, who argued that the 17-year-old lacked any right to an abortion because of the "fundamental difference between citizenship and illegal presence in our country."

Instead, he merely argued that more time should have been allowed for a sponsor to come forward, so that the girl could get an abortion without government involvement.

"If transfer does not work, given existing Supreme Court precedent and the position the government has so far advanced in this litigation, it could turn out that the government will be required by existing Supreme Court precedent to allow the abortion," he said.

Neal Devins, a professor at William & Mary Law School and author of a book on the abortion debate, says Kavanaugh's reasoning shows he does not want to "rock the boat."

"He doesn’t want to be seen as someone who is an advocate for the cause," Devins says. "He’s not going to push the court further than necessary, particularly on socially divisive issues."

Similarly, Kavanaugh dissented in 2011 from an appeals court ruling upholding the Affordable Care Act, but only on procedural grounds. He said the law's mandate that individuals purchase health insurance or pay a tax penalty to the Internal Revenue Service could not be challenged before payment was made.

"History and precedent counsel caution before reaching out to decide difficult  constitutional questions too quickly, especially when the underlying issues are of lasting significance," he wrote. "After all, what appears to be obviously correct now can look quite different just a few years down the road."

Timothy Jost, a health care expert and professor at Washington and Lee University School of Law, wrote that Kavanaugh saw "both sides of the argument" and "concluded that the court should avoid a constitutional ruling until the case was properly before it."

'The earth is warming'

On the controversial issue of voting rights, which comes before the Supreme Court almost every year in one or more cases, Kavanaugh weighed his words carefully in the South Carolina case.

"Many states have enacted voter ID laws for the stated purposes of deterring voter fraud and enhancing citizens’ confidence in elections," he wrote. But he expressed concerns "about the burden of obtaining a photo ID and, correspondingly, about denying voters without photo IDs the ability to vote."

And while he has ruled consistently against what he sees as federal regulatory agencies run amok, Kavanaugh does so based on his reading of the separation of powers rather than for policy reasons.

During oral argument in 2016 on President Barack Obama's clean power plan, which was intended to slash carbon dioxide emissions from coal-burning power plants, he accused the EPA of "setting unachievable limits." But he called the policy "laudable," adding, "The earth is warming, and humans are contributing."

Richard Lazarus, who teaches environmental and natural resources law at Harvard Law School, says Kavanaugh's rhetorical style is more muted than Scalia's, who often railed against environmental activism in the courts.

"That’s not Brett Kavanaugh," Lazarus says. "You don’t see it in his opinions. You don’t see it in his attitude. He doesn’t come to the cases with that type of antipathy."

KIRO