Questions Supreme Court nominee regarding constitutional interpretation and religious liberty
WASHINGTON, D.C. – Today, the series of hearings for U.S. Supreme Court nominee Judge Brett Kavanaugh continued with a second round of questioning by Senate Judiciary Committee members. There, U.S. Sen. Ted Cruz (R-Texas) participated in a line of questioning with Judge Kavanaugh on his prior trial experience and qualifications to fulfill the crucial vacancy on the Supreme Court.
Sen. Cruz’s full line of questioning may be viewed here. Excerpts are below:
Sen. Cruz: Judge Kavanaugh, yesterday you had a discussion with Senator Lee about what it means to be a textualist. And, I want to go back and revisit that conversation and ask for someone at home who’s watching this, why should it matter to them if a judge is a textualist? What difference does that make to somebody not involved with the Supreme Court?
Judge Kavanaugh: Senator, it goes to the foundation of the Constitution and the system that the framers designed with a legislative branch, an executive branch, and a judicial branch that were all separate. As was said in Federalist 78, ‘the judiciary does not exercise will, but it exercises judgment.’ The policy decisions are made by the legislative branch with the president of course in terms of signing legislation. So, the House, the Senate, and the president. The president enforces federal law, comes to the judiciary. When we interpret a statute, we as judges must adhere to the text of the statue. Why is that? Two reasons, I think are paramount.
The first is, the statute as written is what was passed as a formal matter by the Congress, by both houses of the Congress, signed by the president into law. So, as a formal matter that is the law. So, if we are going to exercise judgment not will, we need to adhere to the law as passed, and the law as passed is reflected in the written words that were–went through both houses and signed by the president.
Secondly, in supporting that, as a practical matter legislation, is a compromise. And within the Senate, within the House, with the president as well, lots of compromises are inherent in any legislative product. Now, that’s what my experience shows. That’s what I know your experience shows as well Senator. So, when a case comes to court, a statute comes to court, we upset the compromise that you so carefully reached, and where people might have given up this for that, in terms of the legislative final language, and we then insert ourselves after the fact into the process and upset the compromise if we don’t stick to the actual words of the text of the statute as passed by Congress. So as both a formal matter of what the law is, and as a practical matter of not inserting ourselves into the legislative process and upsetting the legislative process, it is critical that judges stick to the law as written– the text of the statute as passed by Congress and signed by the president.
Sen. Cruz continued, asking Judge Kavanaugh to discuss his views on the significance of the Religious Freedom Restoration Act (RFRA).
Sen. Cruz: Let’s shift back to the topic you and I discussed yesterday, which is religious liberty, which is a topic of considerable interest and importance to a great many Americans. In private practice, you wrote an amicus brief in the Santa Fe case for Congressmen Steve Largent and J.C. Watts. Could you describe to this committee what that case was about and your representation there?
Judge Kavanaugh: I will. Of course Senator Cornyn argued the case as Attorney General for the State of Texas and did an outstanding job. I remember participating in the moot court as the Senator recalled. […] The case involved prayer before a football game. And the Supreme Court of course has had a number of cases on religious expression in schools. And these are always challenging cases and very fact specific. But there are two principles that the precedents have set forth. One is that school sponsored prayer at school events is often impermissible either at the school day, Engel v. Vitale, graduations, Lee v. Weisman. At the same time, when students want to express themselves in some way—t-shirt, clothing, or saying their own prayer, say before a football game or other event, the students want to say a prayer for themselves—or there’s an open forum where students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer, that’s generally on the free speech side of the house, freedom of religion side of the house of the Supreme Court precedent, which would protect the religious liberty of the individual in that circumstance. […] The Supreme Court thought that the school was too involved, I would say, in the prayer opportunity in that case, and thus attributed the prayer in that case to the school, and the Supreme Court therefore said that the prayer in that case was impermissible. It was a very fact specific decision, I think, based on how some of the actual prayers that had gone down in the school district there. So, it was really in the gray area on the facts between these two principles, freedom of speech and freedom of religion for individuals on the one hand, no school-sponsored prayer on the other. And those two principles are part of the Supreme Court precedent that I think the courts have applied for a long time now.
Sen. Cruz: What led you to want to take on that representation in the amicus brief?
Judge Kavanaugh: At that time, I worked on several — I was asked to work on several cases involving religious liberty and religious speech. I also did an amicus brief in the Good News Club case and that was a case where a school district allowed use of the gymnasium, auditorium area after school for whatever group from the community wanted to use the facility. And they would allow everyone to come in, Boy Scouts, any community group to come in, but they didn’t allow religious groups to come in and that seemed to be discrimination against religion, discrimination against religious people, religious speech. And I was asked to do an amicus brief which made the point that religious people, religious speakers, religious speech is entitled to its place on an equal basis in the public square including in this case in the school auditorium or gymnasium. The Supreme Court agreed with that principle in that case, stating that discrimination against religion in public facilities in the nature of what was going on in that case was impermissible and a violation of freedom of speech, freedom of religion and therefore unconstitutional. Those cases are important, I think, because it’s important to recognize the Constitution—the First Amendment of the Constitution—as well as many statutes of course, protect religious liberty in the United States and religious freedom in the United States. As I’ve said in some of my opinions, we’re all equally American no matter what religion we are or no religion at all. That means that religious speakers and religious people have a right to their place in the public square.