Potential nominee profile: Brett Kavanaugh
When then-candidate Donald Trump released his first two lists of potential Supreme Court nominees in May and September of 2016, the omission of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit drew comment. Kavanaugh had served for 10 years on a bench known as a springboard to the Supreme Court. With his impeccable academic credentials and sterling reputation in conservative political and legal circles, he seemed like an obvious choice. And his name was eventually added to the roster of possible nominees, on November 17, 2017.
No one else on the president’s current list can rival Kavanaugh for Washington credentials. He was even born in Washington, where his mother was a public-school teacher, on February 12, 1965. Martha Kavanaugh went on to become a prosecutor and later state judge in Maryland, where Kavanaugh was raised and where, like Justice Neil Gorsuch, he attended Georgetown Preparatory School. After graduating from Yale College in 1987 and Yale Law School in 1990, Kavanaugh spent two years as a law clerk, for Judge Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. He followed a one-year fellowship in the office of U.S. Solicitor General Kenneth Starr with a clerkship for Justice Anthony Kennedy during October Term 1993. Kavanaugh went on to join Starr at the Office of the Independent Counsel, where Kavanaugh led the investigation into the death of Vince Foster, an aide to President Bill Clinton, and helped write the 1998 Starr Report to Congress, which outlined 11 grounds for Clinton’s impeachment. Kavanaugh was later a partner at the law firm Kirkland & Ellis, where he specialized in appellate law. He moved to the White House after President George W. Bush was elected and worked in the West Wing for five years, first as a counsel to the president and then as staff secretary to the president.
Bush first nominated Kavanaugh to the D.C. Circuit on July 25, 2003, but the nomination was stalled in the Senate for nearly three years, with Democratic senators charging that Kavanaugh’s government track record revealed him to be overly partisan. During Kavanaugh’s second confirmation hearing, in May 2006, Sen. Chuck Schumer (D-N.Y.) observed, “From the notorious Starr report, to the Florida recount, to the President’s secrecy and privilege claims, to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.” Despite similar objections from other Democratic senators, Kavanaugh was eventually confirmed by the Senate on May 26, 2006, by a vote of 57-36.
Perhaps because of his years of executive-branch experience, Kavanaugh generally brings a pragmatic approach to judging, although his judicial philosophy is conservative, and he has applied principles of textualism and originalism espoused by the late Justice Antonin Scalia. Adam Feldman of Empirical SCOTUS has calculated that as of the end of 2017, Kavanaugh had written opinions in 286 cases. Because the D.C. Circuit’s caseload is weighted toward review of administrative agency decisions, Kavanaugh has written most often in administrative law cases – 122, by Feldman’s count. Notable among these are a string of cases involving rulings by the Environmental Protection Agency. Kavanaugh has largely, but not always, attempted to rein in Obama-era EPA regulations, on several occasions in dissents from panel rulings or denials of rehearing on banc in cases that were later reversed in full or in part by the Supreme Court. In Greenwire, Amanda Reilly quotes a law professor’s assertion that Kavanaugh “has a ‘pretty good track record’ of writing dissents that signaled to Scalia that the high court should hear a case.” For example, in 2014, in White Stallion Energy Center v EPA, Kavanaugh dissented in part from a ruling that upheld the EPA’s decision not to consider cost when determining whether it is “appropriate and necessary” to regulate power plants. He argued that “as a matter of common sense, common parlance, and common practice, determining whether it is ‘appropriate’ to regulate requires consideration of costs.” Reversing the D.C. Circuit’s decision, the Supreme Court, in a 5-4 opinion by Scalia that quoted from Kavanaugh’s dissent, held that the EPA’s refusal to consider costs was unreasonable.
Similarly, in Coalition for Responsible Regulation v. EPA, in 2012, Kavanaugh dissented from denial of rehearing en banc in a case involving regulation of greenhouse-gas emissions. Kavanaugh resisted the agency’s attempt to adapt the language of a 1970 statute, the Clean Air Act, to permit regulation of an environmental problem that Congress did not anticipate when it enacted the statute, concluding that the EPA had “exceeded its statutory authority” when it issued the greenhouse-gas regulations. He argued that accepting the EPA’s approach would allow agencies to “adopt absurd or otherwise unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness,” and warned that “undue deference or abdication to an agency carries its own systemic costs.” The Supreme Court, in another Scalia opinion, relied to some extent on Kavanaugh’s reasoning, and quoted from his dissent, in holding that the Clean Air Act did not authorize the EPA to require stationary sources to obtain permits solely based on greenhouse-gas emissions.
On at least one occasion, a Kavanaugh decision invalidating EPA action did not fare as well in the Supreme Court. In EME Homer City Generation, LP v. Environmental Protection Agency (2012), Kavanaugh wrote for a panel that rejected an EPA rule intended to curb harmful emissions that cross state lines, concluding that the agency had “transgressed statutory boundaries” when it allocated emission reductions among upwind states. The Supreme Court later reversed, in a 6-2 decision by Justice Ruth Bader Ginsburg, with Justice Samuel Alito recused.
Kavanaugh has not always ruled against the EPA, however. In National Mining Association v. McCarthy, in 2014, he wrote a panel decision upholding an EPA program aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining. And in 2010, in American Trucking Associations v. EPA, he wrote an opinion upholding the EPA’s review of California’s limits on emissions from in-use non-road engines. On occasion, a Kavanaugh opinion siding with the EPA’s opponents has been a win for environmental interests, as in Natural Resources Defense Council v. EPA, in 2014, in which he wrote an opinion that vacated an EPA rule establishing an affirmative defense for cement-kiln operators sued for exceeding emission limits.
Kavanaugh is clearly inclined to resist the expansion of administrative-agency authority, but he has tended to approach administrative law issues on a case-by-case basis, rather than by mounting a frontal attack on the doctrine of deference to agency interpretations of ambiguous statutes famously set forth in Chevron v. Natural Resources Defense Council. Yet a recent case suggests that Kavanaugh is developing his own method of empowering courts to hold the line against the administrative state, through what Kavanaugh refers to as the “major rules doctrine.” Chief Justice John Roberts notably relied on a similar approach in 2015, in King v. Burwell, a challenge to the Affordable Care Act’s health-care-subsidy system. Roberts wrote for a 6-3 majority that whether the ACA covered subsidies bought on federal exchanges was “a question of deep ‘economic and political significance’ that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.” In the absence of an express indication that Congress had delegated such a major question to the implementing agency, Roberts went on, it was the role of the court, not the agency, to interpret the statute. In 2017, in United States Telecom Association v. Federal Communications Commission, Kavanaugh outlined his view of this doctrine in a dissent from denial of rehearing en banc. The panel in the case had upheld the Obama administration’s “net neutrality” rules against a challenge brought by telecommunications and other internet providers, deferring under Chevron to the FCC’s interpretation of the statute. Kavanaugh’s major-rules doctrine goes even further than the “major-questions doctrine” described by Roberts in King v. Burwell. To Kavanaugh, if Congress has not spoken on a matter of deep economic and political significance, which it had not in this instance, a regulation challenged under the relevant statute is presumed to be invalid.
In some high-profile cases, Kavanaugh has not always pleased ideological purists in conservative circles. For example, Kavanaugh rejected two constitutional challenges to the ACA. In 2011, in an 65-page dissent in Seven-Sky v. Holder, Kavanaugh would have found that “the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters,” deprived the panel of jurisdiction to decide the constitutional issues in the case. And in a dissent from denial of rehearing en banc in Sissel v. U.S. Department of Health and Human Services, in 2015, Kavanaugh would have held that the ACA complied with the clause of the Constitution that requires all bills for raising revenue to originate in the House of Representatives because the statute “did in fact originate in the House.”
Kavanaugh took a conservative position, but did not go as far as one of his colleagues, in a recent case combining the hot-button issues of abortion and immigration. In Garza v. Hargan, a pregnant undocumented teen in immigration custody wanted to obtain an abortion, but was prevented by her government custodians from doing so. Kavanaugh wrote a panel decision vacating a district-court order that required the government to allow the teen to leave the detention facility to obtain the abortion; the panel imposed an additional waiting period to give the government time to obtain a sponsor. The en banc court reversed. Kavanaugh dissented, arguing that the en banc ruling was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” In a separate dissent, Judge Karen LeCraft Henderson maintained that as a noncitizen, the teen had no due-process right to the abortion. Kavanaugh, in contrast, noted that the government had conceded the teen’s right to an abortion. He went on to assert that delaying the procedure while the government sought a sponsor was permissible under the Supreme Court’s precedent because it did not impose an undue burden on that right. At the government’s request, the Supreme Court vacated the D.C. Circuit’s decision this month in a per curiam decision in Azar v. Garza, ruling that the case became moot through no fault of the government’s when the teen obtained the abortion.
Another controversial issue provoked a similar response from Kavanaugh. In 2015, in Priests for Life v. HHS, Kavanaugh dissented from denial of rehearing en banc in a Religious Freedom Restoration Act challenge to the process for accommodating religious objections to the ACA’s contraceptive mandate, which permitted religious nonprofits to self-certify their eligibility for an exemption from the birth-control benefit by notifying either their insurance company or the federal government of their faith-based objection to contraceptive coverage. The panel decision had upheld the accommodation, stating that a court is not required “simply to accept whatever beliefs a RFRA plaintiff avows—even erroneous beliefs about what a challenged regulation actually requires.” Unlike other dissenters, who maintained that there is no compelling government interest in facilitating access to contraception, Kavanaugh would have ruled that a compelling interest does exist, but the government can achieve it in other ways. In a group of cases consolidated as Zubik v. Burwell, the Supreme Court in 2016, when it was short-handed after the death of Scalia, remanded the case for the parties to work towards a compromise accommodation.
Kavanaugh has written several notable rulings involving separation-of-powers concerns, many directed at reining in the authority of independent agencies. Most recently, in PHH Corp. v. Consumer Financial Protection Bureau in 2018, Kavanaugh dissented from an en banc ruling upholding the constitutionality of the CFPB’s structure. The bureau is headed by a single director who can be removed only for cause. The challengers had argued that this structure violates Article II of the Constitution because it infringes on the executive power of the president. Kavanaugh agreed. “Because of their massive power and the absence of Presidential supervision and direction,” Kavanaugh wrote, “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” He would have struck the for-cause provision from the statute that created the CFPB, giving the president the power to remove the director at will. Notably, in a footnote, Kavanaugh questioned Humphrey’s Executor v. United States, the case that originally upheld the constitutionality of independent agencies, hinting that he would be open to overruling it. Ten years earlier, in Free Enterprise Fund v. Public Company Accounting and Oversight Board (2008), Kavanaugh dissented on similar grounds, citing “plain text and original understanding,” from a panel opinion holding that the structure of that board, whose members were removable only for cause by the Securities and Exchange Commission, whose members are in turn removable by the president only for cause, did not violate Article II’s appointments clause or the separation of powers. The Supreme Court later reversed the panel’s ruling on the separation-of-powers issue and excised the for-cause provision.
Separation-of-powers concerns also underlie Kavanaugh’s opinions in several cases involving the prosecution of suspected terrorists. Most recently, in Al Bahlul v. United States, in 2016, the defendant, who was Osama Bin Laden’s driver, appealed his conviction by a military commission of conspiracy to commit war crimes, arguing that Articles I and III of the Constitution bar Congress from making conspiracy an offense triable by military commission, because conspiracy is not an offense under the international law of war. A divided en banc D.C. Circuit upheld the conviction. Several of the judges in the majority voted to affirm without reaching the question of Congress’ authority. In a lengthy concurrence, Kavanaugh went further and addressed that question directly, finding no constitutional barrier. In his view, “the federal courts are not empowered to smuggle international law into the U.S. Constitution and then wield it as a club against Congress and the President in wartime.”
Kavanaugh also expressed an expansive view of the government’s power to detain enemy combatants – and a limited view of the court’s authority to curtail that power — in a series of cases that followed the Supreme Court’s 2008 decision in Boumediene v. Bush, which held that enemy combatants detained at Guantanamo Bay are entitled to habeas corpus protections and can challenge their detention in federal court. After Boumediene, according to a 2011 article by Stephen Vladeck, commentators “have accused the D.C. Circuit in general—and some of its judges in particular – of actively subverting Boumediene by adopting holdings and reaching results that have both the intent and the effect of vitiating the … decision.” Prominent among those judges is Kavanaugh. For example, in al-Bihani v. Obama, in 2010, Kavanaugh voted with a panel that held that “preponderance of the evidence” is the appropriate burden of proof for the government to meet in Guantanamo detention cases, and that hearsay evidence can properly be admissible in these cases. The panel also held in al-Bihani that the Authorization for the Use of Military Force under which the defendant was detained as an enemy combatant should not be interpreted in light of the laws of war; Kavanaugh reiterated this position in a concurrence to the denial of rehearing en banc, stating that [“i]nternational-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the AUMF.” Other cases in which Kavanaugh voted to reject the claims of detainees include Uthman v. Obama (2011), Omar v. McHugh (2011), and Kyemba v. Obama (2009).
In recent years, Kavanaugh has begun to spell out an approach to statutory interpretation, in what he explains as an effort to limit judicial activism. In a 2017 speech at Notre Dame Law School, Kavanaugh, like Roberts during his confirmation hearing, endorsed a “vision of the rule of law as a law of rules, and of the judge as umpire,” cautioning against allowing judges to import their policy preferences into their rulings. He argued that “[s]everal substantive canons of statutory interpretation, such as constitutional avoidance, legislative history, and Chevron, depend on an initial determination of whether the text is clear or ambiguous,” and that there are no clear guidelines for making that determination. He went on to assert that rather than trying to decide whether a statute is ambiguous, “judges should strive to find the best reading of the statute, based on the words, context, and appropriate semantic canons of construction.” In a 2016 review of “Judging Statutes,” by Robert Katzmann, Kavanaugh took issue with Katzmann’s endorsement of the use of legislative history to interpret statutes, arguing that “the decision whether to resort to legislative history is often indeterminate,” and that the use of legislative history should “be largely limited to helping answer the question of whether the literal reading of the statute produces an absurdity.”
Although not a dyed-in-the-wool originalist like Scalia, who maintained that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written, Kavanaugh has relied on originalist principles in controversial cases. In Heller v. District of Columbia, a 2011 challenge to a city law, enacted after an earlier law regulating handguns was invalidated by the Supreme Court, that banned possession of semi-automatic rifles and required registration of all guns, Kavanaugh dissented from the panel opinion that applied intermediate scrutiny to largely uphold the statute. In Kavanaugh’s words, the Supreme Court left “little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”
Kavanaugh has not taken a consistent position in civil-rights cases. He has joined several rulings against employees in discrimination cases, but he has also ruled in favor of employees. For example, in an en banc concurrence in 2017 in Ortiz-Diaz v. HUD, Kavanaugh urged the court to go beyond its limited ruling for the employee and “definitively establish the following clear principle: All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.” And in Ayissi-Etoh v. Fannie Mae, in 2013, he wrote a concurrence in a ruling for employee reversing a grant of summary judgment: “But, in my view, being called the n-word by a supervisor – as Ayissi-Etoh alleges happened to him – suffices by itself to establish a racially hostile work environment.”
In labor and employment law cases more generally, Kavanaugh’s rulings have tended to favor employers. In 2016, in Verizon New England v. NLRB, Kavanaugh held that the NLRB had improperly overturned an arbitration decision when it found that a “union’s waiver of its members’ right to picket did not waive their right to visibly display pro-union signs in cars on Verizon property.” In National Association of Federal Employees v. Vilsack, in 2012, he dissented from an opinion holding that a random drug-testing program for government employees who work in residential Job Corps centers required a showing of individualized suspicion under the Fourth Amendment. Partial dissents from panel rulings upholding NLRB findings of unfair labor practices or discriminatory hiring include Midwest Division MMC v. NLRB (2017) and NLRB v. CNN America (2017).
Kavanaugh has not staked out a particularly strong position in First Amendment cases. In Mahoney v. Doe, in 2011, in a concurrence to ruling rejecting a First Amendment challenge to a law prohibiting defacement of public property enforced against an activist who chalked an anti-abortion message on the street outside the White House, he stated: “I add these few words simply because I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property. No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.” And in Newdow v. Roberts (2010), he concurred in a judgment against atheist plaintiffs who objected to religious components of the presidential inauguration ceremonies as an establishment clause violation. The other judges on the panel had held that the plaintiffs lacked standing to sue; Kavanaugh would have rejected their claims on the merits “because those longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.”
In criminal cases outside the detainee context, Kavanaugh has tended to rule against defendants, although in doing so, he has largely agreed with his colleagues. In 2008, United States v. Askew, however, Kavanaugh dissented from an en banc ruling that found a Fourth Amendment violation when police officers unzipped a defendant’s jacket without his permission and without probable cause or a warrant. And Kavanaugh has supported police officers’ claims of qualified immunity from civil-rights lawsuits. For example, in Wesby v. District of Columbia, which was reversed this term by the Supreme Court, Kavanaugh dissented from denial of rehearing en banc, stating that because “[t]he officers were not “plainly incompetent” and did not “knowingly violate” clearly established law when they made these arrests,” they were entitled to qualified immunity. But, dissenting from a 2012 en banc opinion upholding the application of a mandatory-minimum sentence in United States v. Burwell, Kavanaugh would have ruled for the defendant. In his words, “The majority opinion holds that a person who committed a robbery while carrying an automatic gun – but who genuinely thought the gun was semi-automatic – is still subject to the 30-year mandatory minimum sentence. The majority opinion thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know. In my view, that extraordinary result contravenes the traditional presumption of mens rea long applied by the Supreme Court.”
Kavanaugh participates in various volunteer activities, including serving meals at Catholic Charities and tutoring at a local elementary school, and he has run the Boston Marathon twice. He is a parishioner at Blessed Sacrament Catholic Church. Kavanaugh and his wife Ashley – who served as the personal secretary to George W. Bush while he was governor of Texas and then president – have two daughters.
Andrew Hamm contributed to this post, identifying, reviewing and analyzing the cases summarized above.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel for the intervenors in United States Telecom Association and on an amicus brief in support of the respondents in PHH Corp. The author of this post is not affiliated with the firm.]