When President Trump nominated Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy, it was widely assumed that he would not support LGBTQ rights the way Kennedy did. It’s a logical assumption. The religious right has embraced him (despite some initial misgivings), and the organization to whom Trump outsourced picking a nominee has also been responsible for some of Trump’s worst judicial nominees.
But complicating the narrative has been Kavanaugh’s lack of a record on LGBTQ issues, especially marriage equality. His record has been called “sparse” and “thin,” leaving opponents of his nomination to infer his position from unrelated rulings or comments about legal articles.
With hearings on Kavanaugh’s nomination on dock for this month, we can expect to hear a lot more speculation. The nominee will be well rehearsed in the non-answer to questions about it, promising to apply the law fairly to everyone.
But we already know what Kavanaugh thinks about marriage equality. He was in the White House when President George W. Bush decided to make opposition to marriage equality a major issue.
In fact, Bush not only came out against marriage equality; he proposed a constitutional amendment banning it.
Bush strategist Karl Rove later boasted that the issue guaranteed Bush a second term. “I saw up close how it benefited my candidate: Gay rights activists bent on defeating George W. Bush helped reelect him by overreaching on same-sex marriage.”
In the center of all of this: Brett Kavanaugh. Kavanaugh served as staff secretary in the Bush White House during this time. The title underplays the role the position has. By Rove’s admission, “literally every document that goes to the president on a policy issue has to pass through the hands of the staff secretary.”
Moreover, Kavanaugh wasn’t just shuffling papers. “And many a time I heard somebody say, you know what, Brett Kavanaugh, his edits made my arguments stronger and better, and they had no idea what his personal views were but he understood what theirs were and crystallized it,” Rove added.
His position “put Kavanaugh at the center of every political and policy decision at the Bush White House,” said Peter Irons, professor emeritus at the University of California at San Diego and author of several books about the Supreme Court.
That includes the fateful decision to use same-sex couples as fodder in the culture wars for electoral gain.
Kavanaugh’s supporters will, no doubt, argue that the nominee was just a neutral observer who wasn’t being paid to express his own opinion. But there is nothing in Kavanaugh’s background that says neutrality. His career has been marked by his involvement in some of the most partisan political issues of our time.
After all, this is the man who wanted to humiliate Bill Clinton by asking incredibly salacious questions about Clinton’s relationship with Monica Lewinsky. Kavanaugh was also involved in the Florida recount in the 2000 election. In fact, his nomination to the federal bench was held up for three years because Democrats viewed him as a creature of politics, not law.
As Kavanaugh’s hearings get underway, opponents have every right to demand details about his positions, including on marriage equality. That’s evidence the public should have to understand what kind of Supreme Court justice Kavanaugh would be.
But let’s not pretend that we don’t know how Kavanaugh stands on the issue. By virtue of his position in a Bush White House that relied upon marriage equality as a political weapon, we already know.