Brett Kavanaugh - What We Know

I have been scolded by a commenter for (paraphrasing) presuming that I know how Judge Kavanaugh will rule on issues that come before him. This scold is no more than a repeat of a partisan talking point. "We can't possibly know how Judge Kavanaugh will rule because every case that comes before him will be different, and he will reach his own conclusions, i.e. he's just calling balls and strikes."

Spare me.

when SeaWorld trainer Dawn Brancheau was killed by a whale that mauled her and then pulled her underwater until she drowned — the third time this particular whale killed someone while in captivity — Chief Judge Garland joined an opinion rejecting SeaWorld’s argument that “working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk.” Again, their argument was that working with killer whales was not a recognized risk. And this particular killer whale was a repeat offender.

Judge Kavanaugh, meanwhile, wrote a dissenting opinion claiming that the Department of Labor cannot protect whale trainers from dangerous workplaces, because that would be like regulating “tackling in the NFL or speeding in NASCAR.”

I guess we can kind of presume where his sympathies lie in cases that involve employment hazards.

Also, in Garza v. Hargan, Garland voted in favor of a woman that the Trump administration literally held prisoner to prevent her from obtaining an abortion. Kavanaugh dissented in that case too.

Of course, this case makes me think that I can presume where Judge Kavanaugh's heart is on reproductive rights vs. power of the government cases.

Oh, and Kavanaugh frequently attacks the EPA’s efforts to protect the environment, while Garland takes a much lighter hand with federal agencies.

Once again, Judge Kavanaugh has literally written, for himself (through his clerks) what I know about him. 

I also know this:

Q: Judge Kavanaugh, thank you for coming today. My name is Chris Johnswick (ph). I just had a question for you. You spoke about the chief justice’s role in both Roe and Casey. I wonder if you could elaborate as what would you say his biggest legacy is for us. You agreed with his dissent in those opinions.

JUDGE KAVANAUGH: As I said, he was not successful in convincing the other members of the Court to his position there. But, more broadly, in subsequent due process, or unenumerated rights cases more generally, he did write the Glucksberg opinion that prevents a general role for the Court in creating new social rights. So I don’t know if I can improve upon just that bare description of what he did. He clearly wanted to overrule Roe and Casey and did not have the votes. That’s where it was left. So it did not deter him or prevent the Court from reaching the result it reached in the later Glucksberg cases, as I mentioned, and that adopts a general framework for creation of new social rights that still applies today.  

For the record, the Glucksberg opinion, as Judge Kavanaugh states, "prevents a general role for the Court in creating new (unenumerated, specifically, in the Constitution) social rights." So, I for one will not be taking the bait to merely judge Judge Kavanaugh on his sterling resume; his substantive opinions about the law, which he has held for years and will continue to hole, are important and worth considering.