During his Supreme Court confirmation hearings, Brett Kavanaugh has said repeatedly that he cannot reveal his views on legal cases that might come before him as a justice.
Yet on religious liberty – the issue at the center of conservative Christian support for President Trump – Kavanaugh this week sent several signals that he is on the same page as the president’s most loyal base.
Kavanaugh’s alleged emphasis on religious liberty is a political embrace for Trump. It shows Trump’s base that they were right in voting for him, even as the White House is embroiled in multiple unfolding scandals without precedent in American history.
Sen. Ted Cruz, R-Texas, tied it all together with his opening statement at Kavanaugh’s confirmation hearings Tuesday, saying what’s at stake in the 2016 election was Republicans’ desire for “justices who will uphold fundamental liberties like free speech, like religious liberty, like the Second Amendment,” while Democrats “want justices that will further that assault on religious liberty.”
Standing for religious liberty means standing for Trump and now for Kavanaugh.
At some points in the hearings this week, Republican senators seemed to ask questions or in some cases, just make statements, that opened the door for Kavanaugh either to indicate his agreement or to engage in platitudes about the role of religion in American public life.
Sen. John Cornyn, R-Texas, brought up a 2000 Supreme Court case, Santa Fe Independent School District v. Doe, which he had litigated as Texas attorney general, and in which Kavanaugh, then in private practice, had filed an amicus brief.
At issue was whether student-led prayers at public high school football games were an unconstitutional government establishment of religion. In his brief, Kavanaugh had argued the prayers did not violate the establishment clause; the court ruled that they did.
“I’m not asking for your opinion since likely you’ll be called upon to decide cases involving the establishment clause in the future,” Cornyn said to Kavanaugh, even though he was nonetheless giving the nominee the chance to make his opinion perfectly clear. The 18-year-old case, the senator complained, “still sticks in my craw.”
He expressed agreement with then-Chief Justice William Rehnquist’s dissent, which argued that the majority opinion “bristles with hostility to all things religious in public life.”
Kavanaugh, acknowledging that cases he’s lost “still stick in my craw, too,” went on to soothe Cornyn’s concerns about the high court’s hostility to religion.
He cited more recent cases, involving the use of public school facilities for an after-school Bible club, legislative prayer and public financing of religious facilities, as evidence that the court had become, perhaps, less hostile to religion – a trend that he implied he would continue should he be confirmed.
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