The Supreme Court will likely be welcoming a new judge this fall, one of several new placements in recent years. President Donald Trump nominated Brett Kavanaugh, a former District of Columbia Circuit Court of Appeals judge, on July 9th, after the announcement of Justice Anthony Kennedy’s retirement.
Trump said of Kavanaugh that he is “one of the finest and sharpest legal minds of our time.” Raj Shah, a White House spokesman added that “Judge Kavanaugh has impeccable credentials and interprets the law as it was written and intended.”
If confirmed, Kavanaugh would be one of six replacements in about a dozen years to the nine-judge court, joining new appointees Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Samuel Alito, and John Roberts.
Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer have been serving since the early 1990s. (As an aside, with Ginsburg, Breyer, and Kagan on the bench, this is the first time that three sitting judges of the Supreme Court are Jewish). Supreme Court justices may serve until they decide to resign, or until their death.
Though the Supreme Court’s decisions almost never directly address matters of Jewish concern, on a broader level some judgments may have ramifications for our community.
Supreme Court Rulings
in Alignment and Against Our Community Values
Back in 1962, for example, Engel v. Vitaledealt with prayer in the New York public school system. Each morning schools began with a nondenominational prayer acknowledging Gd’s reign over the universe. However, the court ruled that students’ saying this prayer in school violates the First Amendment, in terms of “state establishment of religion” whereby the government is prohibited from being a sponsor of religious activity. Many faith groups have since expressed strong concern that the idea that something so comparatively benign could be outlawed. They have often made the case that the less schoolchildren are exposed to Gd, the more likely they are to be lacking in moral clarity.
“Since the court outlawed prayer, the nation has been in steady moral decline,” former Secretary of Education William Bennett said, when presenting his study of schools from 1960 to 1990. “During this period divorce doubled, teen suicide increased 300%, child abuse reached an all-time high, and violent crime went up 500%. There is a strong correlation between the expulsion of prayer from our schools and the decline in morality.”
Seventeen years later, in 1990, Cruzan v.Missouri Dept. of Health made a profound judgment on health matters. It confirmed that the constitution allows anyone to refuse life-preserving medical treatment, though it does not permit someone other than the patient to make that determination, unless there is clear proof that the patient would have wanted it that way. This paved the way for the state to continue life support so long as was deemed reasonable. This ruling – making it legally difficult to remove life support – aligns with the halachic attitude regarding the sanctity of human life.
In a 2002 Supreme Court ruling that has implications in the
recent “fair funding” debate for Jewish institutions, the Zelma v.
Simmons-Harrisdecision held that in some circumstances school voucher programs are constitutional. The Supreme Court rejected the notion that this had anything to do with a church/state argument (the “establishment clause”) and permitted some Ohio families to receive tuition aid from The Ohio Pilot Scholarship Program. This paved the way for parents to use these vouchers for private or parochial schools.
And finally, the recent ruling making same sex marriage
legal across the nation is a blow to those who deeply believe in the importance of maintaining the standard definition of traditional marriage.
It is widely believed that Judge Kavanaugh, if confirmed, will be a fifth right-leaning justice on the court, ensuring that for decades to come many of our community’s values will be represented in the high court.
Kavanaugh holds graduate and law degrees from Yale. He has been at the center of various landmark legal decision-making. He worked under Kenneth Starr while President Bill Clinton was being investigated, and three years later in 2000 he joined George W. Bush’s legal team during the Florida vote recount. President Bush hired Kavanaugh as staff secretary, where he served for three years. Then President Bush nominated him to the U.S. Court of Appeals for the D.C. Circuit.
Over the course of twelve years, Kavanaugh made 300 court decisions, and his 100 most-cited legal opinions have been referenced by more than 200 other judges.
Well respected across political lines, even liberal Supreme Court judge Elena Kagan, when she was dean of Harvard Law School, hired Kavanaugh to teach there. 39 of 48 former Kavanaugh law clerks have worked in some capacity for every Supreme Court justice, save Justice Ginsburg.
Judge Kavanaugh has made his opinions known on a variety of controversial issues. On the Affordable Care Act (Obamacare), Kavanaugh has said that he believes parts of the coverage violated the religious freedom of faith-based nonprofits. And even though the Supreme Court ruled that Obamacare was constitutionally valid as a “tax,” Kavanaugh maintains that the president could void Obamacare by not enforcing it.
Kavanaugh is a proponent of anti-terror strategy, and has stated that he supports the National Security Agency’s wide-ranging surveillance operation.
Jewish Community Support for Kavanaugh
Jewish Republican Alliance Co-Founder Bruce Karasik stated that Kavanaugh was “an outstanding selection… with credentials that are beyond reproach. Judge Kavanaugh has always been committed to equal justice under the law, and to applying the Constitution as written in all of his decisions.”
Simon Wiesenthal Center’s founder and dean, Rabbi Marvin Hier added his praise, “Judge Kavanaugh is respectful to the Constitution and understands the special responsibility that a Supreme Court judge has. He seems to be a wonderful family man and committed to community services, especially for those in need. He came across as a mainstream person and he did not strike me as an ideologue. He was impressive.”
Kavanaugh, 53, was the oldest candidate Trump interviewed
for the position. However, if confirmed, hewould still be the second-youngest justice on the Supreme Court, only three years older than Trump’s first pick, Neil Gorsuch. At 85, Ruth Bader Ginsburg is the oldest of all the justices.