Judge Brett Kavanaugh poses for photographs before meeting with lawmakers at the Capitol on Wednesday. (photo: Chip Somodevilla/Getty Images)
This guy just looks creepy. Kind of like Ted Cruz-creepy. Maybe it's that evangelical smile.
15 July 18
udge
Brett M. Kavanaugh, President Trump’s Supreme Court nominee, gave a
revealing speech last fall in which he lauded former Chief Justice
William H. Rehnquist for having dissented in Roe vs. Wade and for
rejecting the notion of “a wall of separation between church and state.”
He also praised the late chief justice’s unsuccessful
effort to throw out the so-called “exclusionary rule,” which forbids
police from using illegally obtained evidence.
All three of areas of law — abortion, religion and
police searches — are likely to be in flux if Kavanaugh is confirmed and
joins the high court this fall.
Kavanaugh’s comments are significant because they were
in a speech, not a court opinion in which he was bound by precedent,
said David S. Cohen, a law professor at Drexel University in
Philadelphia.
“He is not writing as a judge. This is him telling us
his own views. And while he doesn’t come out and say ‘the dissent is
right,’ it is pretty clear he agrees with Rehnquist,” Cohen said.
Agreeing with the dissent, however, would not necessarily mean that
Kavanaugh would now vote to overturn a long-standing precedent.
In the speech, Kavanaugh said Rehnquist “was my first
judicial hero,” noting that he started law school at Yale in 1987, a
year after President Reagan had elevated Rehnquist to be chief justice.
Rehnquist had been the court’s lone true conservative for many years,
and Kavanaugh said he felt much the same at Yale.
“His opinions made a lot of sense to me. In class
after class, I stood with Rehnquist. That often meant in the Yale Law
School environment of the time that I stood alone.
Some things don’t
change,” he said at a Constitution Day address delivered at the American
Enterprise Institute in Washington in September 2017.
He cited five areas—“criminal procedure, religion,
federalism, unenumerated rights and administrative law” — where
Rehnquist stood fast against the liberals and moved the law to the
right.
He “would be the first to say that he did not achieve
full success on all the issues he cared about. But it is undeniable, I
think, that he brought about a massive change in constitutional law and
how we think about the Constitution,” Kavanaugh said.
Kavanaugh noted that Rehnquist joined the high court
in 1972, only a few months before the justices heard a challenge to a
Texas law that made all abortions a crime, except those done to save the
life of the mother. In Roe vs. Wade, along with Justice Byron R. White,
Rehnquist “ultimately dissented from the court’s 7-2 holding
recognizing a constitutional right to abortion,” Kavanaugh said.
The Bill of Rights did not include an explicit right
to abortion, and Rehnquist believed a new, “unenumerated” right should
gain constitutional status only if it was “rooted into the traditions
and conscience of our people. Given the prevalence of abortion
regulations both historically and at the time, Rehnquist said he could
not reach such a conclusion about abortion,” he said.
Rehnquist’s dissent in Roe vs. Wade said “the states had the power to legislate with regard to this matter,” he added.
Later, as chief justice, Rehnquist tried, but failed
by one vote, to overrule the abortion decision in the 1992 case of
Planned Parenthood vs. Casey. Kavanaugh did not mention it, but Justice
Anthony M. Kennedy cast a decisive vote to preserve the right to
abortion in that case.
“It is fair to say that Justice Rehnquist was not
successful in convincing a majority of justices in the context of
abortion, either in Roe itself or in later cases such as Casey,”
Kavanaugh said. “But he was successful in stemming the general tide of
free-wheeling judicial creation of unenumerated rights that were not
rooted in the nation’s history and tradition.”
As an example, he cited the 1997 decision in
Washington vs. Glucksberg, which rejected a right to assisted suicide
for those who are terminally ill.
Turning to religion, Kavanaugh said Rehnquist had
maintained that the “wall of separation between church and state” was a
misleading metaphor “based on bad history.”
Thomas Jefferson as president used this phrase in a
letter in 1802 to describe the 1st Amendment’s twin clauses — one
banning an “establishment of religion” and other protecting the “free
exercise” of religion. The Supreme Court adopted the metaphor in a 1947
opinion.
Scholars and judges have continued to disagree over
whether the Constitution should be interpreted to forbid religious
symbols on government property or religious invocations at government
meetings.
As chief justice, Rehnquist failed to win a majority
to uphold prayers and invocations at public school events, mostly
because of Justice Kennedy, who cast crucial votes with the court’s
liberals to reject prayers at school in 1992 and 1999.
“Rehnquist was central in changing the jurisprudence
and convincing the court that the wall metaphor was wrong as a matter of
law and history,” Kavanaugh said.
“Throughout his tenure and to this day,” he added, the
court has “sought to cordon off public schools from state-sponsored
religious prayers. But Rehnquist had much more success in ensuring that
religious schools and religious institutions could participate as equals
in society and in state benefit programs.”
In 2002, he noted, Rehnquist wrote the court’s opinion
upholding a state law that gave parents tax money to pay for sending
their children to religious schools. And just last year, the court
upheld a Missouri church’s claim that it had a right to receive state
funds to pay for a new school playground. “There again, the Rehnquist
legacy was at work,” Kavanaugh said.
As Kavanaugh said, Rehnquist was most interested in criminal cases.
He “fervently believed the Supreme Court had taken a
wrong turn in the 1960s and 1970s… in a number of sweeping rulings of
the Warren Court” that expanded rights for criminal defendants,
Kavanaugh said. He cited as examples the 1961 decision in Mapp vs. Ohio,
which called for excluding evidence that arose from an illegal search,
and the 1966 decision in Miranda vs. Arizona, which said police must
warn suspects of their right to remain silent and to consult with a
lawyer.
“Perhaps his most vehement objection… concerned the
exclusionary rule,” Kavanaugh said. “This judge-created rule, in
Rehnquist’s view, was beyond the four corners of the 4th Amendment’s
text and imposed tremendous costs on society.” He did not succeed in
overruling it, Kavanaugh noted, and not many are calling for a change
today, “given its firmly entrenched position in American law.”
Nonetheless, he said, “Rehnquist dramatically changed
the law of the exclusionary rule” in a 1984 ruling that said evidence
should not be excluded if the police relied in “good faith” on a flawed
search warrant.
In 2009, four years after Rehnquist died, the court
did not overturn the exclusionary rule but came close. By a 5-4 vote in
Herring vs. United States, the justices upheld evidence from an illegal
police stop in Alabama. Chief Justice John G. Roberts Jr., a former law
clerk for Rehnquist, said evidence from an illegal search should not be
excluded unless the police misconduct was “deliberate, reckless or
grossly negligent.” Justice Kennedy was in the majority after indicating
earlier that he was unwilling to overturn the entire exclusionary rule.
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