One of the leading contenders for the Supreme Court, D.C. Circuit Judge Brett Kavanaugh, could see his chance at the nomination hinge on his handling of a legal battle last year over a 17-year-old immigrant's request for an abortion.

To Kavanaugh's backers, his role in the legal showdown that played out over a couple of weeks last October exhibits the kind of judicial restraint conservatives have long called for from members of the bench.


However, for Kavanaugh's critics, his actions in the teen-immigrant abortion case exude a tendency toward caution and compromise that could signal an unwillingness to make waves on the Supreme Court — and they worry that hesitancy could extend to reversing longstanding precedents, such as Roe v. Wade.

"This case exemplifies why Kavanaugh is not the best available Supreme Court prospect," Philip Jauregui of the Judicial Action Group wrote in a memo to conservative leaders last week. The memo called Kavanaugh "certainly not the worst judge" in the case, but said his opinion dissenting from the court's ultimate decision to permit the abortion was not "as constitutionally principled" as another conservative judge who considered the issue.

Few conservatives have been willing to broadcast their view that Kavanaugh is likely to be less strident on some polarizing issues than other potential nominees. One who has made that view public is former Virginia Attorney General Ken Cuccinelli, who said in an interview Friday that he is troubled by Kavanaugh's ultimate opinion in the teen-immigration abortion case, known as Garza v. Hargan.

"He made a statement that really gives one some pause about what he'd do when he's on the Supreme Court as opposed to an appellate court," Cuccinelli said. "His view there was just quite troubling."

Cuccinelli — who has expressed a preference for either Judge Amy Coney Barrett or Republican Sen. Mike Lee — said Kavanaugh's actions in the Garza case contribute to a view that he, like Chief Justice John Roberts, is not reliably conservative.

"I really feel like Kavanaugh's just another Roberts," the former Virginia AG said. "He came straight out of the Ivy League to Washington, was never outside the beltway and went to the Bush White House. To paraphrase, Sen. Feinstein, the Bush speaks loudly in him."

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Kavanaugh's defenders say his effort in the case involving the teen known in court filings as "Jane Doe" show a judge trying to craft a compassionate result for a pregnant teen, while seeking to avoid a sweeping constitutional ruling in a case that may not have required it.

"One notion of judicial restraint, especially in a constitutional case, is not to decide unnecessary constitutional issues," said Shannen Coffin, who was a legal counsel to Vice President Dick Cheney and served alongside Kavanaugh in the George W. Bush White House. "That was really an exercise in judicial restraint."

Kavanaugh declined to comment.

Much of the discussion on Kavanaugh's role in the case has focused on his opinion dissenting from a decision from the D.C. Circuit's full bench to permit the teen to receive the abortion she sought. The Bush appointee, joined by his two GOP-appointed colleagues, said the majority gave short shrift to the Trump administration's claims about why she should not have access to an abortion while in federal immigration custody.

“The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh wrote, calling the majority's approach "a radical extension of the Supreme Court’s abortion jurisprudence."

Kavanaugh said it was "assumed" by the Trump administration that a teen illegal immigrant in federal custody has a right to an abortion, but critics have quibbled with that claim, noting that the administration refused to take a position on that issue.

Indeed, some Kavanaugh critics have noted that Judge Karen Henderson, an appointee of President George H.W. Bush, went further, castigating the Trump administration for refusing to take a position on that point.

In her opinion, Henderson also expressly denied any constitutional right to an abortion under the circumstances, saying that Doe "cannot successfully assert a due process right to an elective abortion." Her decision went even further, venturing into contentious issues of immigration law about what rights are owed to a foreign national who has just crossed the border and has few, if any, other ties to the U.S.

Kavanaugh did not join Henderson's opinion. "You wouldn't be hearing about this really and it certainly would not be causing people to have concern if Kavanaugh joined Henderson's opinion," Cuccinelli said.

Kavanaugh's backers say there was good reason for him to decline to go along with Henderson's rationale. Denying constitutional rights to immigrants can have widespread implications for criminal and immigration law, potentially creating a kind of legal limbo that could open immigrants to abuse or mistreatment with little recourse.

"Her decision is much broader than just an abortion ruling. It would have major ramifications in other contexts in a case where neither side had really briefed it," said Coffin.

Also causing some grief for Kavanaugh in some quarters are his remarks at oral argument in the case, where he appeared to be seeking a compromise in the case by pressing the federal government to release the pregnant teen to an adult sponsor.

"We're being pushed in a span of 24 hours to make a sweeping constitutional ruling in one direction or another. And when that happens the Supreme Court and this Court often look are there other avenues to resolving a dispute short of that, initially," Kavanaugh said. "And it seems to me...if she were released to a sponsor, that would solve the Government's objection. That would allow J.D. to be released from custody, which presumably would be a good thing, and it would allow her to obtain the abortion if she so chooses."

One lawyer advising Trump on the Supreme Court search said he would not hold Kavanaugh's position on that point against him. "What he's saying is in the first case the kid should be given the chance to have the kind of conversation she should be having with family and friends about a major life decision....I don't view that as a cop out at all," said the adviser, who spoke on condition of anonymity.

While Kavanaugh spoke of resolving the case "in a way satisfactory to everyone — and quickly," he also pressed the teen's lawyer about some concerns shared by anti-abortion advocates. For instance, the judge asked whether a court-appointed guardian who approved the girl's abortion decision "is someone who knew her before?"

Kavanaugh appears to have orchestrated a brief ruling the appeals court issued later that same day giving federal officials 11 days to find a suitable sponsor for the teen. The Democratic appointee on the three-judge panel, Patricia Millett, dissented.

"What is forcing J.D. to carry on this pregnancy is not J.D.’s choice. It is not Texas law. It is the federal government’s refusal to allow an abortion to go forward," Millett wrote. "The sponsorship remand, in short, stands as an immovable barrier to J.D.’s exercise of her constitutional right that inflicts irreparable injury without any justification offered for why the government can force her to continue the pregnancy until near the cusp of viability."

The girl's attorneys, from the American Civil Liberties Union, appealed the panel's decision to the D.C. Circuit's full bench which sided with Millett. Early the next morning, the girl had the abortion.

Kavanaugh's dissent not only disagreed with the majority's legal conclusions, but lamented the decision to upend the order he seemed to fashion that might have resolved the case. The judge's tone suggested he viewed the actions as not only unwise, but a breach of the court's practices.

"The Court never should have reheard this case en banc in the first place," Kavanaugh opined, expressing a sentiment he may feel even more strongly today. "This case, as handled by the three-judge panel, therefore was on a path to a prompt resolution that would respect the interests of all parties – until the en banc Court unwisely intervened,"

