What are Supreme Court Nominee Brett Kavanaugh’s Views on Cannabis?

Where does SCOTUS nominee Brett Kavanaugh stand on cannabis?
What are Supreme Court Nominee Brett Kavanaugh’s Views on Cannabis?
Eric Draper/ Wikimedia Commons

As the United States Senate conducts confirmation hearings for Supreme Court nominee Brett Kavanaugh, questions about his judicial philosophy and views on controversial subjects including cannabis remain. Senate hearings in front of the Senate Judiciary Committee on the nomination began Tuesday with senators from the Democratic Party calling for the proceedings to be postponed.

Democrats believe that the confirmation is being rushed by the Republican majority and want more time to receive and review documents from Kavanaugh’s time as a federal judge and on the White House staff during the presidency of George W. Bush. Kavanaugh is currently a circuit judge for the United States Court of Appeals for the District of Columbia Circuit.

The Trump administration is withholding more than 100,000 pages of Bush White House documents from senators, citing executive privilege. And just hours before the hearing on Labor Day evening, the attorney for former President Bush provided more than 42,000 pages of documents from Kavanaugh’s White House service.

“What are we trying to hide? Why are we rushing?” wondered Sen. Patrick J. Leahy (D-Vt.).

Dems Oppose Nomination

Democrats cite Kavanaugh’s views on the executive power of the president, abortion, and other issues as cause for opposition to Kavanaugh’s nomination. And some analysts believe that some Democratic senators may ask Kavanaugh his opinion on cannabis legalization.

As a federal judge, it does not appear that Kavanaugh ever ruled on cases directly related to cannabis or its legalization. But in cases heard by Kavanaugh that did touch on drug policy, the judge’s rulings have pointed right of center.

Upholds Workplace Drug Testing

In one case before the appellate court that pitted the rights of workers against the policies of employers, Kavanaugh wrote a dissenting opinion that upheld a requirement that employees of group homes for at-risk youth be drug tested. Kavanaugh ruled that the policy did not violate Supreme Court precedent or 14th Amendment protections from unreasonable search and seizure.

“Applying the fact-specific balancing test set forth by the relevant precedents, I would conclude that the government’s strong interest in ensuring a drug-free workforce at these schools outweighs the infringement of individual privacy associated with this drug testing program,” Kavanaugh wrote. “In residential schools for at-risk youth, many of whom have previously used drugs, it seems eminently sensible to implement a narrowly targeted drug testing program for the schools’ employees. In these limited circumstances, it is reasonable to test; indeed, it would seem negligent not to test.”

Sides With FDA Over Terminally Ill Patients

In a 2007 Court of Appeals case, Kavanaugh sided with the majority court ruling that held that terminally ill patients do not have a constitutional right to use experimental drugs not approved by the FDA. The court concluded that “there is no fundamental right ‘deeply rooted in this Nation’s history and tradition’ of access to experimental drugs for the terminally ill,” affirming a lower court’s ruling.

Nominee Vows To Keep Open Mind

At a July White House ceremony announcing the Supreme Court nomination by President Trump, Kavanaugh said that his “judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

The Supreme Court nominee also vowed to “keep an open mind in every case.”

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