Capitol Connection

Trump Supreme Court pick divides Attorney General race

Candidates differ over judge's qualifications, background

ILLINOIS (WCIA) -- President Donald Trump's pick to fill Justice Anthony Kennedy's vacancy at the U.S. Supreme Court created a new rift in the upcoming race for the state's top lawyer, prompting Democrat Kwame Raoul to go on the offensive and leaving Republican Erika Harold to offer more reserved praise. 

On Monday night, Trump announced federal appeals court judge Brett Kavanaugh would be his second nominee to the Supreme Court in as many years, inviting celebration from Republicans and condemnation from Democrats around the nation.

Raoul, a Chicago Democrat, and Harold, a Champaign Republican, expressed contrasting views on a number of pressing issues that could be argued before the high court, ranging from limitations on gun regulations, abortion access and presidential powers. 

"Donald Trump promised to appoint a justice who would overturn Roe v Wade, and so this nomination clearly threatens safe and legal access to abortion, which I will always support," Raoul said through a campaign spokesperson. 

In a recent interview on Capitol Connection, Harold deferred to the Supreme Court's "latest precedent," signaling that she may take a more neutral stance should the nation's newly reshaped high court someday move to restrict abortion rights.

"My focus is enforcing the law -- whatever it is -- when I am Attorney General," she said. "I think it’s important in a position like this that you’re not bringing your own personal views into it in terms of enforcing the law. On issues of constitutional interpretation, as Attorney General, I will take what is the Supreme Court’s latest precedent and make sure to uphold that, because that is what I am sworn to do."

However, that answer omits the obvious fact that in their roles as elected officials, state Attorneys General set the priorities of their office, select when and where to pick legal battles and how aggressively to argue, defend or challenge interpretations of the law and Constitution before a judge, perhaps even before the Supreme Court. In fact, the current Illinois Attorney General is right now, by default, engaged in defending a legal challenge pro-life conservatives brought against the controversial abortion law Governor Rauner signed into place last year. 

While she suggested she may not bring her personal views into the job, during the same interview, Harold appeared to contradict that posture when she said, “I am someone who makes my decision based on what I think is in the best interest of the people of all Illinoisans, my interpretation of the Constitution and the job that I’m seeking.”

Her rival Raoul also used the high stakes judicial appointment to stake out a position on other issues that have not yet been openly debated in this race. 

"But we must also look at Judge Kavanaugh's own words," Raoul said. "He has opposed access to affordable healthcare, workers rights, and a ban on assault weapons."

During his term in the Illinois Senate, Raoul was a chief sponsor of a measure that would allow local cities and towns to ban semi-automatic rifles and high-capacity magazines. The town of Highland Park enacted such a ban in 2013, inviting a legal challenge from the National Rifle Association. In 2015, the U.S. Supreme Court declined to hear the case, leaving open the possibility that or another similar legal fight could return. The city of Deerfield also banned residents from possessing assault weapons in April of this year, including a fine of up to $1,000 per day.

Days later, Raoul said, "I do believe as to issues of public safety that the uniqueness of a municipality and its population should be considered in regards to what type of weapons they would like to permit being possessed within that municipality."

In a 2010 dissenting opinion written for the District of Columbia's Circuit Court of Appeals, Judge Kavanaugh strongly opposed the power of a city to enact a ban on any semi-automatic weapon, echoing a sentiment often expressed by members of the NRA. 

"There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifle," Kavanaugh wrote, adding, "semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are." He also said, "semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional."

Though she praised Kavanaugh's "impeccable legal credentials and an impressive resume of public service" in a written statement on Monday night, Harold was unprepared to answer specific questions about Kavanaugh's views or what they might mean for cities and states in Illinois when a reporter asked her about them on Tuesday. 

"I have not read Judge Kavanaugh's opinion," Harold told a WMBD reporter during a campaign stop in Bloomington. "I would have to look at the specific law and the specific locality because the answer to the question depends on what the Supreme Court has already said in that arena."

Kavanaugh's opinion was his interpretation of the Supreme Court's landmark Heller decision that struck down the District of Columbia's ban on handguns. His view clearly stated that ruling should extend to shield all semi-automatic weapons from regulations. Harold's campaign declined to clarify her views at this time, but said that she will "spend many hours" reading Kavanaugh's opinions and will carefully watch the confirmation hearings. 

"I think the confirmation process will give us a chance to see the different judicial philosophies at stake and then to see how communities want to respond and react," she said. 

Raoul raised another point of contention with Kavanaugh views related to the separation of powers between the Executive and Judicial branches of government. 

"He even said the President is above criminal investigation, as if he's a king," Raoul added in his emailed statement, apparently referring to a 2009 law review article Kavanaugh wrote where he cautioned against civil or criminal investigations into a sitting president, calling them "time consuming and distracting" and something that "would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas."

"That should give everyone serious pause," Raoul said, although the campaign left out Kavanaugh's caveat from the same article that said any investigations, whether criminal or civil, should be free to ensue after the presidency, and that the rightful avenue for expelling a "bad-behaving or law-breaking President" is through impeachment. 

The Raoul campaign also highlighted Kavanaugh's opinion in Seven Sky v Holder, a case involving the Affordable Care Act. According to Raoul's campaign, "Kavanaugh claimed that presidents can disregard laws they deem unconstitutional, even if courts have held such law to be constitutional."

Kavanaugh's remark is buried in a footnote and reiterates a prior decision written by former Justice Antonin Scalia. 

"Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional," Kavanaugh wrote. However, he also added that rule was not a two-way street. 

"This power does not work in reverse, either for the President or Congress," he explained in 2011. "In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution."

"I have not read that decision," Harold said in response. "In general, everybody is governed by the Constitution. The way our separation of powers is enacted within our system of governance, it's the Supreme Court that is the final arbiter of interpreting the Constitution. So without reading Judge Kavanaugh's opinion, I couldn't speak to that directly, but I can speak to the fact that the Constitution is something that governs each and every one of us and it's the Supreme Court that is the final arbiter of it."


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