Kavanaugh's Legal Philosophy

Here are some resources that provide a picture of Brett Kavanagh's legal philsosophy

Kavanaugh Speech in 2017: Constitutional Statesmanship of Rehnquist

Excerpt related to Roe v. Wade:

"...it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.

From Judicial Crisis Network:


  • Judge Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit for twelve years. That court is widely considered the second-most important court in the nation; three current justices also served there.
  • Judge Kavanaugh has written opinions in nearly 300 cases dealing with some of the most complicated issues arising in the federal courts.  The Supreme Court has endorsed his positions in high-stakes issues at unparalleled rate; thirteen Supreme Court decisions have endorsed positions advocated in his opinions.
  • Edith Roberts of Scotusblog describes him as “bring[ing] a pragmatic approach to judging . . . his judicial philosophy is conservative, and he has applied principles of textualism and originalism espoused by the late Justice Antonin Scalia.”
  • Judge Kavanaugh has extensive experience in the executive branch, working in President George W. Bush’s administration as Associate Counsel and Senior Associate Counsel to the President, as well as Assistant to the President and Staff Secretary to the President.
  • Judge Kavanaugh served in Ken Starr’s Office of Independent Counsel during the Clinton Administration.
  • Judge Kavanaugh and Justice Gorsuch clerked together for Justice Kennedy.

Judge Kavanaugh's remarks upon being nominated:

"My judicial philosophy is straightforward.  A judge must be independent and must interpret the law, not make the law.  A judge must interpret statutes as written.  And a judge must interpret the Constitution as written, informed by history and tradition and precedent."

(complete remarks at end of post)

Breitbart.com on Kavanaugh's judicial philosophy:

Kavanaugh’s dissent in the first major Second Amendment case to follow the landmark District of Columbia v. Heller decision is a classic example of judicial originalism and a favorite of gun rights advocates. For more than 50 pages, he invokes a historically driven understanding of the meaning of the constitutional right to keep and bear arms to explain why he would have overturned Washington, D.C.’s government gun registry and near-complete ban on semi-automatic firearms. He voted to protect religious freedom of employers who did not comply with Obamacare’s contraception mandate, and he vigorously applied the Constitution to rein in the regulatory state, supplying the reasoning the Supreme Court eventually used in several landmark conservative administrative law decisions.

(On Immigration)

But it is Kavanaugh’s consistent rulings on immigration, the central issue of Donald Trump’s “America First” agenda, that set him apart from the other top candidates for the Supreme Court. Always referring to illegal immigrants as such, he explicitly sided with American workers in his major immigration opinions. “[A]n illegal immigrant worker is not a lawful ’employee’ in the United States,” Kavanaugh wrote in a dissent in which he would have excluded illegally employed aliens from American union elections.

Concerned Women For America on Kavanaugh & Abortion Issue

Kavanaugh also recognizes the Government’s interest in protecting the unborn. In a recent case (Garza v. Hargan ) we told you about, where an illegal immigrant minor in U.S. custody wanted to force the government to help her in getting an abortion, Judge Kavanaugh recognized the government’s legitimate interest in preferring life over abortion.

Although you may hear some concern from some of our friends in the pro-life community about this case, the reality is that judge Kavanaugh strongly rejected the ACLU’s argument, instead siding with the legal argument made by the Trump Administration that requiring the federal government to assist the minor in obtaining an abortion would ignore the government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He forcefully dissented from the en bancruling saying it was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”

Complete remarks from Judge Kavanaugh

JUDGE KAVANAUGH:  Mr. President, thank you.  Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary.

No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.

Mr. President, I am grateful to you and I am humbled by your confidence in me.  Thank you.

Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court.  The framers established that the Constitution is designed to secure the blessings of liberty.  Justice Kennedy devoted his career to securing liberty.  I am deeply honored to be nominated to fill his seat on the Supreme Court.  (Applause.)

My mom and dad are here.  I am their only child.  When people ask what it’s like to be an only child, I say, “It depends on who your parents are.”  (Laughter.)

I was lucky.  My mom was a teacher.  In the 1960s and 70s she taught history at two largely African American public high schools in Washington, D.C. — McKinley Tech and H.D. Woodson.  Her example taught me the importance of equality for all Americans.

My mom was a trailblazer.  When I was 10, she went to law school and became a prosecutor.  My introduction to law came at our dinner table when she practiced her closing arguments.  Her trademark line was: “Use you common sense.  What rings true?  What rings false?”  That’s good advice a juror, and for a son.

One of the few women prosecutors at that time, she overcame barriers and became a trial judge.  The President introduced me tonight as Judge Kavanaugh.  But to me that title will always belong to my mom.

My dad went to law school at night while working full time.  He has an unparalleled work ethic and has passed down to me his passion for playing and watching sports.  I love him dearly.

The motto of my Jesuit high school was “Men for others.”  I’ve tried to live that creed.  I’ve spent my career in public service, from the executive branch and the White House to the U.S. Court of Appeals for the D.C. Circuit.  I’ve served with 17 other judges, each of them a colleague and a friend.

My judicial philosophy is straightforward.  A judge must be independent and must interpret the law, not make the law.  A judge must interpret statutes as written.  And a judge must interpret the Constitution as written, informed by history and tradition and precedent.

For the past 11 years, I’ve taught hundreds of students, primarily at Harvard Law School.  I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan.

As a judge, I hire four law clerks each year.  I look for the best.  My law clerks come from diverse backgrounds and points of view.  I am proud that a majority of my law clerks have been women.

I am part of the vibrant Catholic community in the D.C. area.  The members of that community disagree about many things, but we are united by a commitment to serve.  Father John Enzler is here.  Forty years ago, I was an altar boy for Father John.  These days, I help him serve meals to the homeless at Catholic Charities.

I have two spirited daughters — (laughter) — Margaret and Liza.  Margaret loves sports, and she loves to read.  Liza loves sports, and she loves to talk.  (Laughter.)  I have tried to create bonds with my daughters like my dad created with me.  For the past seven years, I have coached my daughter’s basketball teams.  The girls on the team call me “Coach K.”  (Laughter.)  I am proud of our Blessed Sacrament team that just won the city championship.  (Applause.)

My daughters and I also go to lots of games.  Our favorite memory was going to the historic Notre Dame-Yukon women’s basketball game at this year’s Final Four.  Unforgettable.

My wife Ashley is a West Texan.  A graduate of Abilene Cooper Public High School and the University of Texas.  She is now the town manager of our community.  We met in 2001 when we both worked in the White House.  Our first date was on September 10, 2001.  The next morning, I was a few steps behind her as the Secret Service shouted at all of us to sprint out the front gates of the White House because there was an inbound plane.  In the difficult weeks that followed, Ashley was a source of strength for President Bush and for everyone in this building.  Through bad days and so many better days since then, she’s been a great wife and inspiring mom.  I thank God every day for my family.  (Applause.)

Tomorrow, I begin meeting with members of the Senate, which plays an essential role in this process.  I will tell each senator that I revere the Constitution.  I believe that an independent judiciary is the crown jewel of our constitutional republic.  If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American Rule of Law.

Thank you, Mr. President.  (Applause.)

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