Trump Supreme Court nominee could help upend abortion laws

7/10/2018

Supreme Court nominee Brett Kavanaugh, is shown during a visit to the office of Senate Majority Leader Mitch McConnell of Ky., on Capitol Hill in Washington, Tuesday, July 10, 2018.

ASSOCIATED PRESS

The President’s Supreme Court nominee is a legal conservative who interprets the Constitution as it was originally written, an ideology expected to impact wide-ranging issues of significance to Ohioans, especially abortion laws.

More will be revealed about Judge Brett Kavanaugh, who is nominated to replace Justice Anthony Kennedy, during his Senate confirmation hearing in the coming weeks, but on Tuesday experts said the jurist for the U.S. Court of Appeals for the D.C. Circuit is what President Trump pledged to deliver in a nominee.

“He promised someone who was in the mold of Justice Scalia, and Judge Kavanaugh is certainly someone in that mold,” said Lee Strang, a constitutional law scholar at the University of Toledo College of Law, referring to the conservative justice who died in 2016 and was replaced by President Trump’s first Supreme Court pick, Justice Neil Gorsuch.

“[Justice Gorsuch and Judge Kavanaugh] both have lived in the hothouse of political fighting. [Conservatives] want somebody who has been tested by fire, and if they stay conservative that shows they’re not going to devolve to the left while they’re on the court,” Mr. Strang added.

Also on Tuesday, politicians on both sides of the aisle opined about the nomination and joined experts in taking stock of how the move could shift the high court.

Sen. Rob Portman (R., Ohio), who was at the White House Monday night for the nomination announcement, said he’s known Judge Kavanaugh for more than 15 years. Both served as associate counsel for former President George W. Bush.

“He’s everything you’d want in a judge, in my view,” Senator Portman told reporters Tuesday. “He’s a very impressive candidate in terms of his quality and experience, but also in terms of his compassion and humility.”

Sen. Sherrod Brown (D., Ohio) released a statement raising concerns that others on the left share about Judge Kavanaugh.

“I’m already very troubled by the Supreme Court’s recent decisions stripping rights from Ohioans, and I have serious concerns about some of Judge Kavanaugh’s rulings against women’s rights and consumer rights,” he said. “I plan to review Judge Kavanaugh’s record thoroughly and ask him tough questions face-to-face before I make my decision. I will not support any justice who would take rights away from Ohioans.”

Mr. Brown’s challenger in the upcoming election, U.S. Rep. Jim Renacci (R., Wadsworth), echoed other Republicans in his support of the President’s nominee.

“Brett Kavanaugh is a thoughtful jurist with a proven respect for the Constitution and with extensive experience as a federal appeals judge,” Mr. Renacci said in a statement.

In a statement on Twitter, Mike DeWine, the GOP candidate for governor and Ohio’s attorney general, applauded Mr. Trump’s nomination of Judge Kavanaugh and urged the Senate to act quickly to confirm him.

Richard Cordray, the democratic nominee who clerked for Justice Kennedy at the same time as Judge Kavanaugh, released a less direct statement, never mentioning Judge Kavanaugh by name. Mr. Cordray received campaign contributions from the D.C. judge in his unsuccessful bids for Ohio attorney general and U.S. Senate.

“President Trump's decision today underscores the critical need for Ohioans to have a key backstop in place for them  — a governor who will stand on their side and fight back against attempts to undermine our rights,” Mr. Cordray said.

Judge Kavanaugh has been a federal judge on the prestigious D.C. Circuit for more than a decade. He was nominated by President George W. Bush in 2003, but his Senate hearings stalled and he wasn’t confirmed until 2006.

Before then, the Yale-educated attorney played a key role is drafting the Starr report, in which he established grounds to impeach former President Bill Clinton working for the independent counsel Kenneth Starr.

Not much of what Judge Kavanaugh has done before indicates how he would side on cases related to abortion, one of the most divisive issues sure to come before the court, possibly from Ohio, experts said. Judge Kavanaugh, for example, dissented from the full D.C. Circuit’s decision in 2017 that cleared the way for a pregnant illegal immigrant teenager to obtain an abortion.

Ohio has two anti-abortion laws pending in federal court, a law banning abortions if a baby has Down syndrome and another attempting to divert public funds from clinics that perform or make referrals for abortions, said Mike Gonidakis, president of Ohio Right to Life. Both were deemed unconstitutional by state courts because they contradicted precedent set by Roe vs. Wade.

Mr. Gonidakis said if those cases eventually make their way to the Supreme Court, a 5-4 conservative majority could potentially uphold those laws and undermine precedent set by Roe vs. Wade.

“Elections have consequences. The voters of America said we’d rather have Trump appoint our next justice than Hillary Clinton,” Mr. Gonidakis said. “It’s democracy at its finest.”

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, said the legislature and the governor’s office have tried to outlaw abortion incrementally in the past to avoid sending any disputed anti-abortion laws to the Supreme Court. When a 5-4 abortion rights majority still ruled, legislators expected the law to be struck down and the precedent set by Roe vs. Wade further solidified.

With Judge Kavanaugh in the court, nothing would be hypothetical anymore in terms of anti-abortion laws, Ms. Copeland said. Though she said the lame duck legislature can start implementing new laws in November, Ms. Copeland said the future state of abortion law in Ohio depends largely on the November elections, which includes the Ohio governor race.

“People have viewed the Supreme Court as a firewall on abortion issues, marriage, equality civil rights, right to collectively bargain,” Ms. Copeland said. “I don’t think that can continue to be a strategy. We have to build a firewall in Columbus that will safeguard all the rights that will be in jeopardy with Kavanaugh on the court.”