We Reviewed All of Judge Kavanaugh’s Record. Here's What We Found.

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July 9, 2018

After Donald Trump announced that he was considering nominating Brett Kavanaugh, Judge from the D.C. Circuit, to the U.S. Supreme Court, Lambda Legal's Fair Courts Project embarked on a comprehensive review of his judicial record.

We considered the hundreds of opinions authored or co-authored by Judge Kavanaugh in the D.C. Circuit and analyzed other decisions in which he participated involving LGBTQ-identified and LGBTQ-affiliated parties, employment discrimination, reproductive rights, voting rights, criminal justice, rights of detainees, fair courts, or constitutional rights of equal protection, liberty, free speech, or religious exercise.

Below are instances where Judge Kavanaugh's views on civil rights issues are antithetical to Lambda Legal's mission and are the basis for opposing his nomination.

We note that the Family Research Council (FRC) repeatedly advocated on behalf of Mr. Kavanaugh's nomination. FRC sent an email alert in 2005 urging supporters of the religious right to contact Congress and demand Kavanaugh be confirmed. FRC also criticized then-Senator Bill Frist (R-T.N.) for not advancing Kavanaugh's nomination. After Judge Kavanaugh was finally confirmed, FRC praised the vote and urged action on other nominees.

It is clear that they believed that Mr. Kavanaugh would represent their interests, are focused largely on working to undermine the rights of LGBTQ people.

In Judge Kavanaugh's words:

"Congress should give back to the President the full power to act when he believes that a particular independent counsel is 'out to get him.' Such a step not only would make the special counsel accountable, but it also would force the President and his surrogates to put up or shut up." (source)

"To be sure, the President has the duty to take care that the laws be faithfully executed. That certainly means that the Executive has to follow and comply with laws regulating the executive branch - at least unless the President deems the law unconstitutional in which event the President can decline to follow the statute until a final court order says otherwise." (source)

"In particular, Congress might consider a law exempting a President-while in office-from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel." (source)

It's important to note that questions about the limits of executive privilege and the proper amount of deference owed to the Chief Executive are issues related to matters far beyond the Special Counsel's purview - these questions are at the heart of every challenge to arbitrary presidential action ranging from the separation of children from their families at the border to the declaration of a ban on military service by transgender people.

  • Abortion: Judge Kavanaugh was part of a three judge panel that vacated a Temporary Restraining Order issued by a D.C. federal district court allowing an immigrant teenage girl to get an abortion. This order delayed the abortion by requiring the girl to be placed in a sponsor's custody. When the D.C. Circuit then reversed that decision on appeal, Judge Kavanaugh dissented, claiming that the government was creating a "new right" for immigrants in custody "to obtain immediate abortion on demand" for "unlawful immigrant minors." In Judge Kavanaugh's words:

"Today's majority decision…is 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, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision."

  • License to Discriminate: Judge Kavanaugh dissented from the denial of a petition for en banc review following a decision from a three judge panel holding that the ACA's requirement that employer insurance plans cover contraception did not violate the Religious Freedom Restoration Act (RFRA) by permitting religious non-profits to "opt out" (filling out a form) of the contraceptive requirement.
  • Health Care: Judge Kavanaugh wrote a lengthy dissent objecting to the denial of a petition to review a lower court holding rejecting a procedural challenge to the ACA (claiming that the legislation had originated in the "wrong" house of Congress). Supporters of this case had hoped that it would provide a vehicle for the Supreme Court to strike down the highly popular and life-saving health care legislation. In another challenge to the law, Judge Kavanaugh wrote a dissenting opinion that set forth a roadmap for Congress to repeal the ACA's individual mandate, which would essentially nullify the law's requirement of coverage for those with preexisting conditions.
  • Worker Protections: Judge Kavanaugh has a long history of opposing worker protections. He has consistently ruled against claims of worker discrimination and safety and has written many dissents in cases concerning discrimination claims by workers.
  • Consumer Protections: Judge Kavanaugh dissented from a ruling by the majority of the D.C. Circuit rejecting a challenge to have the Consumer Financial Protection Bureau ("CFPB") held unconstitutional. The decision reversed Judge Kavanaugh's panel decision holding that the CFPB was unconstitutional.

Judge Kavanaugh's record clearly demonstrates his hostility toward civil rights.

Judicial Independence and the Threat from Special Interests and the Executive Branch

Lambda Legal's Fair Courts Project fights to strengthen judicial independence and expand access to justice for LGBTQ people and everyone living with HIV.

Judge Kavanaugh's emergence as the nominee means that he has satisfied not only Donald Trump and Mike Pence, but also groups like the Heritage Foundation and the Federalist Society. These rightwing organizations have pushed extreme legal theories that threaten equality and liberty, and they promote a corporate agenda with funding from oil billionaires Charles and David Koch.

The Supreme Court must have open-minded, fair, and impartial justices who will stand up for our Constitutional values and protections for ALL. Justices must be independent and ensure that legislative majorities don't run roughshod over the rights of vulnerable populations.

Our nation's highest court cannot become a rubberstamp for executive branch actors, including President Trump, when they violate the law or the Constitution.

How Lambda Legal Evaluates a Supreme Court Nominee

Lambda Legal's mission is to achieve full recognition of the civil rights of LGBTQ people and everyone living with HIV. We are entitled to equal protection, liberty, and dignity under the law. And we will continue to challenge all barriers in our path to equality - including in courts.

If confirmed, Judge Kavanaugh is likely to be a decisive vote on many critical issues important to all of us - including the fundamental rights of LGBTQ people and everyone living with HIV.

Our guiding principle as we examine nominees to the Supreme Court is that our clients, and all civil rights plaintiffs, must have a level playing field when they appear before the Court.

Does Judge Kavanaugh's judicial philosophy reflect a commitment to equality and fairness for all? That is the central question for us.

A Supreme Court nominee should be able to:

  • Rule fairly and impartially in cases involving LGBTQ and HIV affected litigants.
  • Comply with the legal precedent established in Obergefell v. Hodges that the right of same-sex couples to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and that same-sex couples shall not be deprived of that right.
  • Adhere to the legal precedent recognized in Obergefell v. Hodges that the fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
  • Follow the legal precedent established in Obergefell v. Hodges that the tradition or history of excluding certain people from exercising a particular right cannot serve as a continued justification for denying that right to a class of people.
  • Abide by the legal precedent in U.S. v. Windsor that where a law is enacted for the purpose of imposing a disadvantage, inequality, or a separate status on a class of people, there is no legitimate state interest to warrant the law's enactment.
  • Comply with legal precedent established in Lawrence v. Texas that the right to liberty under the due process clause gives individuals the right to engage in private, adult, consensual, noncommercial sex without interference by the government, and that this right belongs as much to LGBTQ people as it does to heterosexuals.
  • Adhere to legal precedent established in Lawrence v. Texas that under the U.S. Constitution, religious and moral disapproval cannot be the basis for the enactment and enforcement of criminal laws.
  • Adhere to Lawrence's holding that same-sex couples are entitled under the U.S. Constitution's protection of liberty to the same autonomy as heterosexuals in making personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
  • Follow the legal precedent established in Romer v. Evans, 517 U.S. 620 (1996), that when a law can be explained only by antigay bias, it violates the equal protection clause.
  • Adhere to legal precedent established in Roe v. Wade, 410 U.S. 113 (1973), that the constitutional right to privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
  • Follow legal precedent established in Tennessee v. Lane, 541 U.S. 509 (2004), that state Congress acted within its power in providing disabled individuals the right to sue in courts under the Americans with Disabilities Act, which was subsequently codified by the ADA Amendments Act of 2008.
  • Comply with legal precedent established in Bragdon v. Abbott, 524 U.S. 624 (1998), that HIV infection is a disability that limits one or more major life activities, and therefore HIV discrimination is covered by the Americans with Disabilities Act.
  • Carry out legal precedent established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that treating employees differently in the workplace based on whether they conform to sexual stereotypes is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964.

What Issues the U.S. Supreme Court Is Likely to Consider

Lambda Legal is fighting to defend LGBTQ people and everyone living with HIV from discrimination, including our challenge to the ban on military service by transgender men and women and the ban on service by individuals living with HIV.

We are fighting attempts to undermine marriage equality by those who refuse to recognize our marriages as equal, and by the lawmakers who would give those people a license to discrimination.

We are using federal laws prohibiting sex discrimination to protect LGBTQ people at work and in school; and to combat discrimination in health care and in housing. All of these important issues are making their way to the Supreme Court, and some are already teed up for this coming term. 

Other issues impacting LGBTQ and HIV affected communities the Court may consider in the next several years are:

  • The constitutionality of attempts to prohibit the passage or enforcement of laws protecting LGBTQ people against discrimination;
  • The right of incarcerated transgender individuals to receive medically necessary transition-related health care;
  • The free speech rights of LGBTQ students; and,
  • The appropriate level of constitutional scrutiny to apply to government action discriminating against LGBTQ people and individuals living with HIV. 

Ensuring that justices are fair-minded and approach the decisions they make without prejudice is of utmost importance both for our legal system and for the rights of those who our legal system has the highest obligation to protect.

Lambda Legal's Fair Courts Project works to advance an independent, diverse, and well-respected judiciary that upholds the constitutional and other legal rights of LGBTQ people and everybody living with HIV.