Is Brett Kavanaugh afraid to go on the record?
CNN has reported that the Supreme Court justice urged his colleagues to stay away from highly-charged disputes on abortion and the president’s financial records, as The Hill noted.
According to the report, in March, Kavanaugh pressed for the Supreme Court to avoid ruling on June Medical Services LLC v. Russo, the first major abortion matter the court has taken up during his tenure.
The case, which concerned a law requiring abortion clinics to have admitting privileges with nearby hospitals, was eventually decided in the liberals’ favor in a 5-4 result. Kavanaugh ended up dissenting, but he reportedly would have preferred to avoid the decision altogether.
In memos to his colleagues, Kavanaugh suggested returning the case to a trial court, which would have meant that the anti-abortion law would at least be temporarily suspended.
If true, the report suggests that Kavanaugh was reluctant to become the pro-life crusader that he was made out to be during his scorched-earth confirmation hearing, which turned into a historically ugly battle largely because of the left’s assumption that Kavanaugh would expeditiously try to overturn Roe V. Wade.
Kavanaugh was equally hesitant to get involved in the legal case over congressional efforts to subpoena President Donald Trump’s financial records, which the commander in chief has condemned as falling under the umbrella of “presidential harassment,” as The Hill noted separately.
Playing the moderate
House Democrats had been winning in the lower courts before the Supreme Court weighed in this July, with a 7-2 ruling that chastened the lawmakers’ broad attempt to use their subpoena power, and which virtually assured that Democrats will not get their hands on the desired documents before the November election.
Even so, Kavanaugh pressed colleagues to avoid making a ruling on the issue, citing the “political question” doctrine, which holds that the court should avoid overtly political cases. Had his route been followed, it might have been easier for Congress to exercise its subpoena powers unchecked and obtain President Trump’s records, the report notes.
Kavanaugh has also shown a much softer tone in his rhetoric of late, the report observes, than that exhibited by fellow Justices Clarence Thomas and Samuel Alito.
The report suggests the possibility that Kavanaugh is trying to play the moderate after having been sufficiently traumatized by his treatment during his confirmation hearing — a serious concern among some conservative court watchers.
Of the claims made by CNN, Sen. Josh Hawley (R-MO) said, “This report should terrify conservatives.”