Radio America Online News Bureau

Brett Kavanaugh may not have been the first choice of social conservatives for the Supreme Court, but a leading voice in the Christian legal community is applauding the choice and hopes Kavanaugh will help take the court out of the business of policymaking.

President Trump tapped Kavanaugh, a 12-year veteran of the U.S. Court of Appeals for the D.C. Circuit, for the Supreme Court seat held by the retiring Justice Anthony Kennedy.  Many social conservatives championed Judge Amy Coney Barrett for the nomination, but Liberty Counsel Chairman Mathew Staver is thrilled with the choice.

“It is exactly the kind of judge we need on the U.S. Supreme Court,” said Staver.  “His credentials are impeccable.  He is exceptionally qualified to sit on the U.S. Supreme Court as a justice.

“From a judicial philosophy standpoint, I think that is really what is of interest to most social conservatives or most people that are interested in the court and the rule of law,” said Staver.

Staver says he was very impressed with Kavanaugh’s 2017 speech in which he explained why the late Chief Justice William Rehnquist was his “first judicial hero.”

“He ultimately wanted to bring the court away from social policymaking, which it’s not supposed to do or be, to a rule of law entity, which is exactly what it’s supposed to do,” said Staver.

Kavanaugh has drawn concern from some social conservatives for stating in his confirmation hearings for the appellate court that he considers Roe v. Wade to be an established precedent.  Staver says it is a mistake to conflate the role of an appellate court judge with a Supreme Court justice.

“[Appellate judges] have to follow the law as it’s been established by the U.S. Supreme Court, but a Supreme Court justice can actually have the opportunity to overrule bad precedent,” said Staver.

Another concern on the right is Kavanaugh’s 2011 decision siding with the government on a technical issue related to challenge to Obamacare.  Again, Staver says the concern is unfounded.

Staver says the decision in question dealt only with whether it was appropriate for the court to take up the issue at that point, and that Kavanaugh was not addressing the merits of the law.

“Had he ruled on the merits, based on his judicial philosophy, he would not say that the commerce clause authorizes the government to force people to purchase a product or service.  He’s actually said that before and even after that particular decision,” said Staver.

Staver was not a fan of Donald Trump during the 2016 GOP primary season but supported him in the general election against Hillary Clinton due to the Supreme Court seat vacated upon the death of Justice Antonin Scalia.  Now that Trump has nominated Neil Gorsuch, who now sits on the court, as well as Kavanaugh, Staver says his trust in Trump’s nominations was well-founded.

“President Donald Trump has kept his promise.  A lot of people voted for him because of the U.S. Supreme Court,” said Staver.

Staver doesn’t want Kavanaugh to join the court and make policy favorable to conservatives.  He wants the court to get out of that business altogether.

“It needs to get out of politics.  It needs to get out of social policymaking and the right justices can extricate the Supreme Court from social policymaking and put it back to where it’s supposed to be , an institution that respects and follows the rule of law,” said Staver.

However, Staver expects a vicious political fight precisely because he believes liberals want the court to keep making social policy they can’t advance legislatively.  He also warns that George Soros and others will likely bankroll groups posing as conservatives opposed to Kavanaugh in order to create division on the right.

“I think there’s even going to be false, so-called conservative groups that are created by the left and make it look like there’s a division within conservatives and those that believe in the rule of law,” said Staver.

Every opinion rendered by Supreme Court nominee Brett Kavanaugh will be severely scrutinized as his confirmation process unfolds, but so far conservative advocates for criminal justice reform like what they see in Kavanugh’s record.

“He has a great record of really respecting the role of the judiciary and respecting the rule of law, defending the separation of powers, and resisting that temptation of judicial activism,” said Right on Crime attorney Haley Holik.

She says several cases show Kavanaugh’s reasoned approach and his balance between enforcing the law and having an instinct for protecting citizens from an encroaching government.

Holik specifically cited the case of U.S. v. Moore, a 2010 case ruled on by the Court of Appeals for the D.C. Circuit  and which included a concurring opinion by Kavanaugh.  The case centered on Marlin Moore and his conviction for writing a fictitious name while signing for a package delivered by the U.S. Postal Service.  The incident was part of a larger drug investigation.

Moore was appealing his conviction for signing the fake name, claiming he had no idea it was a federal offense and that no warning was printed on the form he signed.

Kavanaugh agreed with the court’s decision to uphold the conviction while stating there could well be circumstances where people might have grounds to challenge such a conviction for not knowing they committed a crime in what are known as § 1001 cases.  The legal term at issue is known as mens rea.

“As many others have noted, § 1001 prosecutions can pose a risk of abuse and injustice. In part, that’s because § 1001 applies to virtually any statement an individual makes to virtually any federal government official — even when the individual making the statement is not under oath (unlike in perjury cases) or otherwise aware that criminal punishment can result from a false statement,” wrote Kavanaugh.

“To be sure, in many false statements cases the Government will be able to easily prove that the defendant knew his conduct was unlawful. But in some cases, it will not be able to do so — and those of course are precisely the cases where it would seem inappropriate and contrary to § 1001’s statutory text to impose criminal punishment,” added Kavanaugh.

“He indicated that perhaps he could have looked at Supreme Court precedent and applied it differently and come to a different conclusion because mens rea is so important to the foundation of criminal law,” said Holik.

She says Kavanaugh’s concern for determining whether someone knowingly committed a crime is an important step in establishing an effective criminal justice system.

“He has really shown this jurisprudence that he values this traditional presumption of needing a mental culpability when you’re dealing with these cases,” said Holik, who also appreciates Kavanaugh for limiting his decisions to the issue at hand.

“At the same time, he’s always ruled only on the scope of the legal challenges that have been raised.  That’s important, again, because he has resisted judicial activism,” said Holik.

Holik says having a standard like that is good for all Americans as the federal government keeps piling on laws that most people know nothing about.

“Overcriminalization at the federal level is this phenomenon that maybe your listeners are familiar with.  It’s whenever the government criminalizes activities that aren’t typically what of you and I think of as being criminal in nature.

“There’s kind of this anecdote out there that we commit three to seven federal crimes a day.  That’s largely due to the fact that the federal government, these non-elected agency officials, keep creating laws that are redundant, meaning the state already has a law that criminalizes this or just doesn’t include a criminal intent element,” said Holik.