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Kavanaugh Kennedy & Abortion Liberty
July 10, 2018

I have long had concerns about Judge Brett Kavanaugh’s judicial philosophy, and have written about those concerns. However, last night while watching his acceptance speech my concerns increased.  Portions of the speech were agreeable, entertaining, informative, and personable. However, one portion of his speech turned my stomach. After walking to the podium and thanking the President, Judge Kavanaugh praised Justice Anthony Kennedy for his legacy of "securing liberty."

Now, let me first say that I understand the diplomacy of being kind to Kennedy in the season of his retirement. After all, Kavanaugh clerked for Kennedy and it is appropriate to be gracious in that moment. There is certainly a role for protocol. However, in my judgment, Kavanaugh crossed a line by commending Kennedy in the area of Kennedy’s greatest judicial weakness: his abortion-enabling twisted view of liberty.

Here is what Kavanaugh said in front of President Trump last night:
“Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court. The framers established that the Constitution is designed to secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I’m deeply honored to be nominated to fill his seat on the Supreme Court.”

The truth is that Justice Kennedy did not “devote his career to securing liberty.” In fact, Kennedy devoted his career to the opposite: perverting liberty and it cost a generation of unborn children their lives!
Yet, Kavanaugh praised Kennedy for “devot[ing] his career to securing liberty.”

Why not just say: “Justice Kennedy, thank you for the privilege of clerking for you at the U.S. Supreme Court. It is a great honor to succeed you.” Kavanaugh knows that Kennedy and his views on liberty are a lightning rod for pro-lifers, so why bring it up? Was he appealing to pro-abortion Senators?

Kavanaugh could have said many things, and he could have been silent on Kennedy’s sick view of “liberty.” After all, no one forced Kavanaugh to talk about it. He was not asked a question by a reporter or a Senator.
Kavanaugh affirmatively chose to praise Kennedy for just one particular attribute – the one attribute in Kennedy’s record that is most destructive to our constitution, our Nation, and our children: Kennedy’s activist creation of liberty.

So, where do we find Justice Kennedy’s view of liberty? Is it praise-worthy? Is it honorable? Is it even constitutional? Is it a legacy we want to continue?
Kennedy’s pro-abortion anti-constitutional view of liberty comes from his infamous opinion in Planned Parenthood v. Casey. In that case, he imagined that the so-called “right to abortion” should be written into the Constitution because the word “liberty” is in the Constitution and:
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Say what?

If you think that makes no sense – join the crowd. Since 1992, lawyers, law students, and people who can read have been laughing riotously at this activist, perverse, unworkable, anti-constitutional “definition” of liberty.
With this statement in 1992, Justice Kennedy was the swing vote and the author of the decision that upheld Roe v. Wade and sanctioned the continued abortion of tens of millions of children for another generation.

Kavanaugh's supporters will almost certainly claim that he was not praising Justice Kennedy's "career of securing liberty" in the abortion context - but some other context. However, the abortion context is by far the most well known context. Google "Justice Kennedy Liberty" or some other form of those words and you'll see what I mean.

But regardless of what Google says, Kavanaugh is informed. He knows about Kennedy's infamous view of liberty and Kavanaugh should have stayed away from it. It is not something Kavanaugh should be promoting in the face of President Trump who promised to nominate pro-life Justices. President Trump should be concerned and so should pro-life voters!

Kennedy’s "liberty" is something to renounce - something to toss on the ash heap of history. This is our chance to repair the breach – not perpetuate it!

I wish I could endorse Kavanaugh. I wish I believed in him. Every nominee has risks, but Kavanaugh’s record leads me to conclude that he is far riskier than the other finalists. His decision last night to praise Kennedy for his legacy of “liberty” deepens my concerns.

When it comes to the opportunity of a lifetime to take back the Supreme Court, we should minimize risk – not increase it. The last time we had the opportunity to take back the U.S. Supreme Court we nominated a risky guy named Anthony Kennedy. Now, thirty-one years later, do we really want to roll the dice again on a risky nominee who commends Kennedy’s greatest weakness?

Is this truly the best we can do? Kennedy 2.0 for another thirty years? Is that a risk you want to take?

Some are afraid that if we don’t confirm Kavanaugh now we may lose the Senate in November and be unable to confirm anyone. I understand and respect that concern. But, I’m far more concerned with the very real prospect of putting the wrong person on Court and then having my children and future grand-children live under their deranged Kennedy-like view of liberty for the next generation.

Here is a risk I prefer: what if we get a nominee worth fighting for and fight to confirm them? Or, if liberals block that nominee, what if the November elections were all about electing a Senate to confirm a true constitutionalist? That worked pretty well in 2016. I like that risk a whole lot better.

I respect my friends who disagree. As for me, give me a nominee who promotes constitutional liberty! If we can’t confirm them now, then give me a Senate in November that will!

In a Senate with just 50 active Republicans, will you join me in asking conservative Senators to oppose Kavanaugh as too risky for this once in a lifetime opportunity? If we find just one such Senator, perhaps our President will nominate a Justice worth fighting for. Some may think that will never happen.

Justice Harriet Miers disagrees.


Phillip L. Jauregui
Judicial Action Group