Kavanaugh Empowers Pro-Choice Democratic Women

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Supreme Court nominee Brett Kavanaugh empowered numerous pro-choice Democratic women political candidates, helping them raise hundreds of millions of dollars in campaign contributions.  Now, he is being denounced by those same women as unfit to be a public servant.

In 2005, Emily’s List, an advocacy group that claims to have raised over $500 million exclusively to support female Democratic politicians who favor abortion rights, sued the Federal Election Commission challenging new regulations limiting how non-profit groups raise money and spend it to advance the causes and candidates they believe in.  The regulations at issue in Emily’s List v. Federal Election Commission had the effect of “substantially restricting the ability of non-profits to spend money for election-related activities such as advertisements, get-out-the-vote efforts and voter registration drives.”  Emily’s List argued that these regulations violated the First Amendment of the Constitution.

The case reached the United States Court of Appeals for the District of Columbia in 2009.  In a sweeping opinion whose significance is often obscured by the fame accorded other campaign finance cases like Citizens United (decided by the Supreme Court the following year), Judge Kavanaugh wrote for the court that non-profit groups, like individuals, have the right to spend unlimited amounts of money promoting issues or candidates of their choice.

In his opinion, Judge Kavanaugh summarized some of the ironclad principles of the First Amendment as it has been applied to political spending.  One such principle is that campaign expenditures constitute protected speech as defined by the First Amendment.  Another is that the government is not permitted to restrict the spending of some individuals in the interest of greater “equality.”  Judge Kavanaugh deemed this statement from the Supreme Court’s seminal 1970s ruling in the case of Buckley v. Valeo, to be “perhaps the most important sentence in the Court’s entire campaign finance jurisprudence:”

                “[T]he concept that government may restrict the speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

The Supreme Court had long made itself clear, according to Judge Kavanaugh: Individuals have the right to spend whatever amounts they desire to advance their views on issues and political candidates.  To place any limit on a group of individuals who choose to work together in common cause with like-minded citizens by forming a non-profit group such as Emily’s List is “clearly a restraint on the right of association” and Constitutionally impermissible.

Judge Kavanaugh’s concern was the principle of free expression, not the identity, agenda or relative voice of the speaker, which his opinion scarcely mentions.  One wonders if it crossed his mind that the liberty to spend which he so strongly affirmed and championed in this case would, nine years later, be used directly and personally against him by the very plaintiff for whom he had favorably ruled?

Shortly after Judge Kavanaugh’s nomination last month, Emily’s List issued a statement declaring that because he was “approved by right-wing groups like the Federalist Society,” and because of what Emily’s List presumes to be his views on “abortion rights, among other issues,” he is “unfit to serve the American people; full stop.”  Unfit to serve.  Talk about ingratitude!  In its statement, Emily’s List was not moved even to acknowledge Judge Kavanaugh’s pivotal role in enabling its own activities and expenditures against him, let alone that he did so despite his alleged hostility to abortion rights.  That an organization could believe that the fitness of a judge should be determined solely by a speculative presumption about how he might rule on a single issue, even as its own efficacy was vastly expanded by that same judge’s evident impartiality, lays bare two conflicting visions of the proper role of the courts.  One believes that political outcomes are all that matter.  The other defers to the law, regardless of a plaintiff’s identity or political consequences.

It is a great irony that Judge Kavanaugh played an indirect role in the election of numerous Democratic women Senators who will almost certainly vote against his confirmation.  Such unpredictable irony is the nature of the free political process ensured by the Constitution, even if some citizens won’t recognize how they’ve been blessed by it.  Thankfully, there are judges who do.

Mr. Shuchman is a New York investor and free speech activist. He has written for The Wall Street Journal, Reason, Forbes and other publications.

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