Brett Kavanaugh Fails the Anselmian Test

Senate Holds Confirmation Hearing For Brett Kavanugh To Be Supreme Court Justice

Supreme Court Justice nominee Brett Kavanaugh fielded questions from the United States Senate in anticipation of his confirmation. (Photo by Chip Somodevilla/Getty Images)

Today, The Hilltopper issues its first official editorial. In an unusual step, we are not speaking with a unified voice about a campus issue of note. We are instead writing about a national issue of grave importance that will directly impact the lives of every person who works, teaches, or learns at Saint Anselm College.

After the retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump announced he would fill Kennedy’s important seat with Brett Kavanuagh, a jurist of the United State District Court of Appeals for the District of Columbia Circuit.

Rather than evaluate Kavanaugh’s nomination on solely his judicial experience, as some have done, or solely his judicial leanings, as some have done, The Hilltopper chose to evaluate Judge Kavanaugh’s record and the answers he gave during his confirmation hearings and decide whether or not he fulfills the ten Benedictine Hallmarks and Core Values that help to define what it means to be “Anselmian.” Those ten values are love, prayer, stability, conversatio, obedience, discipline, humility, stewardship, hospitality, and community. It is the opinion of The Hilltopper that in five of these ten values, Judge Kavanaugh falls dramatically short.

The first value is love, defined as the love of Christ and neighbor. Anthony Kennedy, whom Kavanaugh is nominated to replace, has a conservative-leaning judicial philosophy, but it is one rooted in love of Christ and neighbor. With only one notable exception – and it is certainly a large exception – Anthony Kennedy has voted to advance civil rights. On issues like affirmative action, Kennedy’s record is mixed but his important vote in Fisher v. United States (2016), shows it was not the principle of affirmative action that Kennedy objected to but rather the legal justification. In Obergefell v. Hodges (2015), Kennedy cast the deciding vote to guarantee protection for same-sex marriage under the Equal Protection Clause, showing a respect and love for queer neighbors.

In contrast, Kavanaugh’s record on these issues is cause for concern. Emails from Kavanaugh’s time in the Bush White House reveal a doubt over affirmative action programs aimed at helping racial minorities and others overcome longstanding and systematic oppression. In fielding questions from Senator Mazie Hirono (D-HI), Kavanaugh used the term “racial spoils system,” which is a term commonly used by white supremacists to oppose racial equality. When pressed by Senator Kamala Harris (D-CA), Kavanaugh was unable to clearly articulate why he used that specific term. Kavanaugh has also upheld a law that requires voters to present a photo ID before casting a ballot, a law that disproportionately affects people of color, older people, and working-class people.

When it comes to showing a love for all of his neighbors, Brett Kavanaugh falls short.

The Hilltopper does not pretend to have an intimate knowledge of Kavanaugh’s prayer life, nor do we find “stability” an applicable value in this context.

We do, however, believe that the Kavanaugh nomination falls short in other hallmarks and values of the Benedictine traditions.

A respect for judicial precedent is not only essential to a judicial philosophy of integrity, it is also similar to the Benedictine hallmark of obedience. Benedictine monks are asked to listen to their community, much as one might expect a good judge to listen to the legal community and his judicial forebears, who decided the right of a woman to make her own reproductive health care decisions is implicit in the Constitution.

Kavanaugh has purported to respect precedent. When grilled about his beliefs over Roe v. Wade (1973), Kavanaugh time and time again referred to the fact it is precedent. When Senator Susan Collins (R-ME) said that she was concerned over Kavanaugh’s philosophy on choice, he reaffirmed that he believed Roe was “settled law.” However, when pressed in his confirmation hearings, Kavanaugh refused to rule out overturning Roe. Supreme Court candidates of all political persuasions traditionally avoid hypotheticals, and that is to be understood. We don’t want potential justices locked into deciding a case before hearing all of the facts. However, Kavanugh’s commitment to Senator Collins appears to have been a lie.

In an email from Kavanaugh’s time in the Bush Administration, Kavanaugh objected to referring to Roe as “settled law.” Stating in full, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

Understanding precedent and its importance is essential to the judicial process. Of course, some Supreme Court cases are wrongly decided, like the infamous Dred Scott case that defined African-Americans as less than a human. However, cases in need of being overturned are rare. It’s why so many people were appalled when the Supreme Court’s decision in Janus v. AFSCME (2018) overturned the Court’s ruling in Abood v. Detroit Board of Education (1977).

The current Court has shown an interest in overturning precedent, even though many of the justices, like Kavanaugh, claimed to respect it.

There is even reason to believe that Kavanaugh is willing to go against precedent. In the DC Circuit, he has not restrained from attempting to unravel judicial precedent, even though he has claimed to have the utmost respect for it. In Coalition for Responsible Regulation v. EPA (2012), Kavanaugh sought to undo not one but two Supreme Court rulings.

Kavanaugh’s wholistic record on the environment is problematic beyond the aforementioned ruling.

Another Benedictine hallmark is that of stewardship. Deeply rooted in the Benedictine, and therefore, the Anselmian, tradition is a respect for creation and a concern for that creation. Some prominent figures have lived this out, like Saint Francis of Assisi. Brett Kavanaugh, however, has shown anything but a respect for creation. Interestingly enough, few nominees have ever had a history of dealing with cases pertaining so directly to God’s signature creation, the planet, as Kavanaugh does.

The League of Conservative Voters has done an extensive account of Brett Kavanaugh’s approach to creation. The League points to not one or two but 17 cases in which Brett Kavanaugh sided against the environment. Some might say that a legitimate interpretation of the law led Kavanaugh to the conclusion he made, but Kavanaugh was almost always in the minority in these opinions. Usually, the Supreme Court disagreed with Kavanaugh’s interpretation.

In addition to Kavanaugh’s disregard for stewardship is his disregard for hospitality or, openness to the other. Frequently, students of Saint Anselm College are told of the importance of “Benedictine hospitality” that makes our campus so unique. Tour guides tout our emphasis on openness and inclusivity, using their words and actions to demonstrate that we are a college that is more than congenial or polite but truly welcoming.

Brett Kavanaugh’s judicial philosophy lacks any semblance of hospitality. One may say that this is perfectly acceptable, that the law should be cold and void of an individual’s own passions. The Hilltopper does not claim that the personal emotions and feelings of a justice should enter their judicial decisions, but we do see a stunning disregard for “the other,” in Kavanaugh’s approach to issues like reproductive rights, voting rights, and affirmative action. We further believe that a concern for “the other” is essential to a fair judicial system. If the law will not stand with “the other,” who will?

It is hard to imagine that a nominee who excludes love of neighbor, obedience, stewardship of creation, and hospitality to the other can truly fulfill another core tenet of Benedictine communities, the word so familiar to Saint Anselm students: conversatio. How can a good life be so lacking in these critical hallmarks?

We recognize that in terms of discipline and community, Brett Kavanaugh has proven himself to be Anselmian. He has dedicated his life to the careful consideration and study of the law, and he has chosen to do so not to enrich himself but to serve the common good. We admire the nominee in these respects.

However, of the eight values on which we attempted to evaluate Mr. Kavanaugh’s nomination – again, excluding prayer and stability – we found his nomination to be thoroughly wanting in five essential areas: love, obedience, stewardship, hospitality, and conversatio.

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When the father of someone who died in the Parkland shooting introduced himself to Brett Kavanaugh, the nominee refused to shake his hand. (Photo by Fred Guttenberg of Getty Images)

And in a community where something as small as holding the door for the person behind you is valued, how can we truly call a man “Anselmian” when he refuses to shake the hand of a parent who lost his child to gun violence?

Some will challenge The Hilltopper’s decision to issue its first editorial on the Kavanaugh nomination instead of on a pressing campus matter. We recognize this concern, but we cannot emphasize enough how much the Kavanaugh nomination will impact those in the Saint Anselm community. Whether it is the nursing student who may see changes in how they can interact with their patients, or a future student of color who may have obstructions created in the college admission process, or the Benedictine monks who will be forced to preach about love and hospitality in a nation that no longer seems to value these tenets of our shared Anselmian nature, the people of Saint Anselm College will be deeply affected by this judicial confirmation. Not only that, we will be worse for it.

The Hilltopper encourages all students to make themselves aware of the Kavanaugh nomination and its consequences. We further urge all those in our community who share our concerns to contact their legislators.

The above piece is written on behalf of The Hilltoper editorial board. It expresses the opinion of that board, not necessarily the opinion of individual writers for the paper. When writing the piece, the board consulted documents published by Benedictine University and Saint Anselm College.


Featured image by Doug Mills of The New York Times.

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