Tuesday kicks off a several-day slog of confirmation hearings for Brett Kavanaugh, a longtime judge on the U.S. Court of Appeals for the D.C. Circuit and President Donald Trump’s second nominee to the U.S. Supreme Court. Kavanaugh hopes to replace former Justice Anthony Kennedy, long-hailed as the court’s swing vote. Kavanaugh, conservatives hope, would solidify a five-justice majority to tilt the court to the right on issues from voting rights to immigration to presidential power.
It’s a monumental day for President Trump, who has the chance to shape American jurisprudence for a generation; for Kavanaugh, who has the opportunity to succeed a well-known justice he clerked for more than two decades ago; and for Texas, which aims to land several high-profile lawsuits before the high court.
What would a Justice Kavanaugh versus a Justice Kennedy mean for Texas?
“Texas is one of the states where that difference is likely to matter the most,” said Steve Vladeck, a University of Texas at Austin law professor. “That’s for two reasons: an especially aggressive Legislature, not shy about passing laws that test the Constitution; and a more aggressive attorney general and solicitor general, who are not shy about leading these arguments.”
In the corridor outside the Brett Kavanaugh confirmation hearings, “The Handmaid’s Tale” pic.twitter.com/13qhg5rYDu— Laura Litvan (@LauraLitvan) September 4, 2018
Will he be confirmed?
Probably. Critical moderate votes, like U.S. Sen. Susan Collins, R-Maine, seem to have to fallen in line with Republicans’ push to confirm Kavanaugh this fall, and Republicans retain the Senate majority. Both of Texas’ U.S. Senators, Republicans Ted Cruz and John Cornyn, have already said they support him. Both serve on the Senate Judiciary Committee, meaning they’ll have the opportunity to ask Kavanaugh questions during the hearings.
Views on abortion
Even before Kennedy’s replacement was announced, advocates in Texas had begun to see the opening as an opportunity to further an anti-abortion agenda. Kavanaugh’s appointment has sparked concern among many Democrats about the fate of Roe v. Wade, the landmark 1973 Texas case in which the U.S. Supreme Court recognized a woman’s constitutional right to terminate her pregnancy. Kavanaugh critics launched a nationwide “Rise up for Roe” tour, headlined in Austin by former gubernatorial candidate Wendy Davis, arguing that the judge’s views would doom women’s reproductive freedoms.
As a judge, Kavanaugh hasn’t written much on the right to abortion. But his views did emerge, if in limited fashion, in his October 2017 dissent from a decision that cleared the way for “Jane Doe,” an undocumented teenager being held in a shelter in Brownsville, to quickly undergo an abortion. Kavanaugh said his colleagues on the D.C. Circuit erred in allowing the abortion to proceed immediately. Their decision, he wrote, was “ultimately 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.” That phrase — “abortion on demand” — appears several more times in the harshly-worded opinion, one many legal experts view as part of Kavanaugh’s “audition” for the Supreme Court spot.
Some legal experts caution against reading too much into that opinion, arguing that Kavanaugh was focused on a narrow question: Should Jane Doe have had to wait until she was in the hands of an immigration sponsor before making an important, and irreversible, decision? But Kavanaugh’s critics say the dissent shows how hostile he’ll be to abortion rights.
Kavanaugh sits on the D.C. Circuit — perhaps the circuit court with the “most boring docket,” joked Josh Blackman, a professor at South Texas College of Law Houston. That’s in part because the D.C. Circuit hears largely administrative law cases — lawsuits that concern the actions of government agencies. In his decade-plus on the D.C. Circuit, Kavanaugh has worked to rein in several federal agencies, demonstrating time and again that he is skeptical of, or even hostile to, their power to promulgate thousands of pages of rules that govern everyday life. That position puts him neatly in line with Justice Neil Gorsuch, Trump’s first appointee to the Supreme Court, as well as a slew of lower court judges Trump has appointed since taking office.
That’s a big deal for Texas, a notoriously litigious state whose frequent lawsuits against the federal government tend to concern regulations created by federal agencies like the Environmental Protection Agency. Texas Republicans like Gov. Greg Abbott often rail against the “alphabet soup of administrative agencies” that govern modern American life, arguing their regulations look and smell too much like laws — and only Congress should be making laws.
“Judge Kavanaugh has been one of the leading proponents of limiting the amount of deference given to administrative agencies … A lot of Texas litigation is against federal administrative agencies,” said Aaron Streett, who heads the Supreme Court practice at Baker Botts. “In the context of the EPA and some other powerful administrative agencies, I would think Judge Kavanaugh would lean more in favor of state flexibility in addressing environmental problems.”
Liberals argue that conservative judges often strike down such rules not because of genuine separation-of-powers concerns, but because they dislike the substance of the rules — limiting Ozone emissions, for example. These laws are, as University of Texas at Austin law professor Hugh Brady puts it, “how the federal government operates day to day — that implicates environmental law and consumer law and public benefits program, and all of those things.”
If Kavanaugh wants to vote to limit agency power, he’ll have many opportunities. One likely candidate this term is a recent Texas case ruling that the Federal Housing Finance Agency, which oversees mortgage giants Fannie Mae and Freddie Mac, is unconstitutionally structured. That legal reasoning, experts said, likely imperils other federal agencies, perhaps most notably the Consumer Financial Protection Bureau — which Kavanaugh has inveighed against as an appeals court judge.
Texas cases headed his way
A handful of significant Texas cases are in the pipeline, and several are likely to make their way to the U.S. Supreme Court. For the Texas Attorney General’s Office, experts said, Kavanaugh’s confirmation would be great news.
“I’m sure they popped a bottle of champagne the day the nomination was announced,” Brady said.
Topping that list is Texas’ challenge to the Deferred Action for Childhood Arrivals program. A federal judge last week declined to block the program for now, but said Texas is likely to win the case. Several other federal judges have ruled it must continue. DACA is almost certain to land before the high court.
Texas has also launched what many legal experts consider a longshot challenge to the Affordable Care Act, known as “Obamacare.” As an appeals court judge, Kavanaugh ruled against Obamacare more than once, though on relatively narrow legal grounds. Tim Jost, an emeritus law professor at Washington & Lee University who has extensively studied the legislation, has argued that Kavanaugh could shift the court toward striking down some of the law’s most significant and popular provisions.
“Kavanaugh might be willing to invalidate the ACA’s preexisting condition protections,” Jost wrote in an Aug. 15 op-ed.
On the other side of the coin are the cases filed by progressive litigators seeking to set new restrictions on gun ownership or eliminate barriers to abortion. Experts say many may die in the pipeline or never reach the Supreme Court as advocates take stock of a Trump-stacked judiciary. Earlier this month, for example, opponents of a restrictive Texas voter ID law said they won’t try their chances at the Supreme Court.
Without the fear of judicial override at the highest level, Texas legislators may push the envelope a little further on contentious issues like immigration, experts said. Meanwhile, liberal groups may be less likely to challenge them.
“At the end of the day,” Brady said, “you’re going to have a judge who is a little more conservative, and will likely tip the scales in favor of opinions that uphold more conservative actions by state government. And that’s really what would happen.”