Battle Supreme Shaping Up Over Trump Choice

In 2000, before he became a judge, Brett Kavanaugh represented, pro bono, a Reconstructionist synagogue in suburban Maryland over its right to build a temple in an area zoned for single-family lots. A group of homeowners in the area took the synagogue to court, asserting that the law allowing “churches …and other places of worship” to be built in the area was illegal because it endorsed religion.

The judge in the U.S. District Court dismissed the motion and upheld the congregation’s right to build.

Cases like this one, which touched on religious liberty, are being reviewed carefully by Jewish groups and others this week in the wake of President Donald Trump’s nomination of Judge Kavanaugh, who has spent more than a decade on the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C., to succeed Justice Anthony Kennedy on the Supreme Court.

Not surprisingly, liberal Jewish groups expressed deep concern over Judge Kavanaugh’s record, particularly on issues of women’s reproductive rights,  LGBTQ rights, the right of workers to organize, and health care, while conservative groups praised his rulings as consistent with the Founding Fathers’ interpretation of the Constitution.

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In its statement, the National Council of Jewish Women (NCJW) CEO Nancy K. Kaufman said Trump’s nomination will “threaten women’s reproductive rights generally and Roe v. Wade in particular.”

Kaufman criticized Kavanaugh’s judicial decisions where he “dissented from rulings upholding the Affordable Care Act and claims that the Consumer Financial Protection Bureau is unconstitutional. He routinely decides for the powerful against the powerless when safety, equality, consumer rights, the environment, and workers’ protections are at stake.”

The Orthodox Union, the major Orthodox membership group in the U.S., has a policy not to endorse or oppose Supreme Court nominees before the Senate for confirmation. “What we have done in recent years, and will do now,” according to Nathan Diament, executive director of the OU’s Advocacy Center in Washington, D.C., “is review” Judge Kavanaugh’s record on cases dealing with religious liberty — “a constitutional right fundamental to the Orthodox Jewish community’s being able to thrive in the U.S. as a minority faith in which we, therefore, have a unique stake.”

Supreme Court pick Judge Brett Kavanaugh after a meeting Tuesday with Senate Judiciary Chairman Charles Grassley (R-Iowa.) The fight over his nomination is expected to be fierce. (Getty Images)

Rabbi Avi Shafran, director of public affairs at the charedi Agudath Israel of America, wrote in the Forward that he feels “hope” about Trump’s pick, citing a greater “protection of religious Americans’ rights to adhere to their faiths” with a conservative-leaning Supreme Court. 

On the progressive side, The Workmen’s Circle  called Kavanaugh’s nomination a “war against the working people of this country.”

“While the President’s selection of a conservative candidate is not a surprise, it exemplifies the direction of this administration to further divide, rather than unite, our county,” said Ann Toback, its executive director.

Kavanaugh is a graduate of Yale Law School who among his professional accomplishments clerked for Justice Kennedy and served in the administration of George W. Bush.

He helped write the Starr Report, which called for President Bill Clinton’s impeachment, and was part of the legal team that fought a recount in Florida in the 2000 presidential election that led to Bush assuming his first term as president of the U.S.

Although credited with extensive experience on the bench, some mainstream Jewish organizations expressed concern with the nominee’s right-leaning viewpoints.   

The American Jewish Committee, in an uncharacteristically strong statement, noted that “while there is little doubt that Judge Kavanaugh has the technical qualification to serve on the Supreme Court … that by no means alone qualifies the nominee. No less important is the nominee’s openness to arguments that challenge his own views and previously expressed beliefs, a robust commitment to protecting the liberties the Constitution guarantees, and assuring all citizens the equal protection of the laws.”

“Moreover,” the statement by AJC general counsel Marc Stern said, “the Senate should not confirm a nominee who comes to the bench with the intention of radically and systematically rewriting American constitutional law.”

The Anti-Defamation League expressed concern that Judge Kavanaugh’s judicial record “does not reflect the demonstrated independence and commitment to fair treatment for all that is necessary to merit a seat on our nation’s highest court.” Jonathan Greenblatt, the group’s CEO and national director, said the nomination is particularly important because “hard-fought progress in LGBT rights, voting rights, and women’s rights are threatened, and immigrants and vulnerable communities in our country are under attack.”

The battle over the nomination is expected to be unprecedented in its intensity, though it appears the Republicans have the votes for Judge Kavanaugh, 53, to win and to serve for decades.