Introduction: A close look at Judge Brett Kavanaugh
on Jul 13, 2018 at 11:53 am
When President Donald Trump nominated him to succeed the retiring Justice Anthony Kennedy, Judge Brett Kavanaugh spoke movingly about the women in his life, beginning with his mother, a history teacher who became a prosecutor and later a state-court judge. He talked about his two school-aged daughters, whose basketball teams he coaches, and with whom he attended the NCAA women’s Final Four this year, and he praised his wife, Ashley, as not only a “great wife and inspiring mom” but also a “source of strength” for President George W. Bush, for whom she served as personal secretary, and others in the White House in the weeks after September 11 attacks. And he added that he was “proud that a majority of my law clerks have been women.”
The 53-year-old Kavanaugh also emphasized his ability to get along with others who do not necessarily share his views, noting that his “law clerks come from diverse backgrounds and points of view” and that he had been hired to teach at Harvard Law School by Elena Kagan, who was then the dean of the law school but was later appointed by President Barack Obama to serve on the Supreme Court. And he discussed the “vibrant Catholic community in the D.C. area,” stressing that even if the “members of that community disagree about many things,” they are “united by a commitment to serve.”
Almost immediately after Kavanaugh’s nomination, nearly three dozen of his former law clerks (all of those, the clerks wrote, who are “not prohibited by their current or pending employment from signing”) sent a letter to the Senate Judiciary Committee in which they praised his intellectual rigor but also described him as “unfailingly warm and gracious with his colleagues no matter how strongly they disagree about a case.” Kavanaugh, they concluded, is someone who “makes it to every wedding, answers every career question, and gives unflinching honest advice.”
At the same time, Kavanaugh’s nomination was met with resistance from Democrats and liberal interest groups, who characterized him as an “extreme” nominee. One example came from the National Women’s Law Center, which argued that, if confirmed, Kavanaugh would “launch relentless attacks” on women’s reproductive rights; the Human Rights Campaign alleged that Kavanaugh would undermine the Affordable Care Act, the environment and equality for the LGBTQ community. Senator Chuck Schumer, a Democrat from New York, also criticized Kavanaugh’s views on presidential power, calling them “off the deep end.”
Although Kavanaugh was not a household name before his nomination, he was already well known in the D.C. legal and political communities. Kavanaugh has lived almost all of his life in the Washington area. After graduating from Georgetown Preparatory School, a Catholic boys’ school just outside the Beltway whose alumni include a current justice, Neil Gorsuch, Kavanaugh left for college and law school at Yale, followed by clerkships on federal courts of appeals in Delaware and California. Kavanaugh then returned to the Washington area for good, first to take a fellowship in the office of the U.S. solicitor general and then to clerk at the Supreme Court for Kennedy.
After clerking at the Supreme Court, many young lawyers head for large corporate law firms (collecting lucrative bonuses along the way) or academia. But Kavanaugh did neither. Instead, he joined independent counsel Kenneth Starr’s investigation of the Clinton administration, including the suicide of White House counsel Vince Foster, the Clintons’ real estate investments and allegations of perjury in connection with President Bill Clinton’s statements about his relationship with Monica Lewinsky. Kavanaugh would spend three years working for Starr, eventually leaving to become a partner in the D.C. office of Kirkland & Ellis. In 1998, Kavanaugh published an article in The Georgetown Law Journal on the presidency and the independent counsel that has drawn renewed attention since his nomination for what it might mean if legal disputes arising from Robert Mueller’s investigation into potential Russian interference with the 2016 presidential election were to make their way to the Supreme Court. Among other things, Kavanaugh deemed it “debatable” whether the Constitution would allow the president to be indicted, but he urged Congress to make clear that a sitting president cannot be indicted; any indictment, Kavanaugh specified, should come only after the president “leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate.” Doing so, he suggested, would speed up any investigations into a sitting president and “would ensure that the ultimate judgment on the President’s conduct (inevitably wrapped up in its political effects) is made where all great national political judgments ultimately must be made”: Congress.
Eleven years later, Kavanaugh would publish another article with similar themes, this time in the Minnesota Law Review. Noting that he had “seen first-hand how complex and difficult” the job of president is, he argued that civil lawsuits against the president in his personal capacity should be postponed until he leaves office and urged Congress to “consider doing the same” for criminal investigations and prosecutions of the president. The best-case scenario for a criminal investigation of the president, he observed, would be that it would distract the president from more pressing duties. But if the president were indicted and stood trial, he continued, it could “cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.” Kavanaugh stressed that he “strongly” agreed with the idea that no one, including the president, should be above the law: “The point,” he explained, is “simply to defer litigation and investigations until the President is out of office.” Moreover, he added, “the Constitution establishes a clear mechanism to deter executive malfeasance” – the impeachment process.
Kavanaugh’s initial stint at Kirkland ended in 1998, when he returned to the office of the independent counsel. He made his first and only appearance as an advocate before the Supreme Court that year, arguing on behalf of the office in its unsuccessful efforts to obtain notes taken by James Hamilton, a lawyer at the firm of Swidler & Berlin, in a meeting with Foster a few days before Foster committed suicide. Later that year, Kavanaugh was one of the lead drafters of the Starr Report, which chronicled the details of Bill Clinton’s affair with Lewinsky; in particular, he was responsible for drafting the section outlining possible grounds for impeachment of the president.
In 1999, Kavanaugh returned to Kirkland, where he focused primarily on appeals. His portfolio included a variety of high-profile cases, including his representation of the Miami relatives of Elian Gonzalez, the then-five-year-old Cuban boy who was found floating on an inner tube off the Florida coast after his mother and 10 others died at sea. Gonzalez was eventually returned to his father in Cuba, over the relatives’ objection. Kavanaugh also served on the legal team for then-Governor George W. Bush in the battle over the Florida recount in the 2000 presidential election.
Kavanaugh joined Bush in the White House in 2001, first in the counsel’s office and then as staff secretary, a job that has been described as an “important gatekeeper to the Oval Office, ensuring that executive orders, decision memos, bills, nominations and other actions are fully vetted before they reach the president.” In 2003, Bush nominated Kavanaugh to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit, a court that has served as a frequent stepping stone for other Supreme Court justices. That nomination stalled, but Bush renominated Kavanaugh in 2006, and he was confirmed by a vote of 57-36. Kennedy swore Kavanaugh in during a ceremony in the Rose Garden in which Bush quipped that Kavanaugh’s position on the court of appeals was the second lifetime appointment that Bush had arranged for him – the first being Kavanaugh’s marriage to Ashley.
During his 12 years on the court of appeals, Kavanaugh has weighed in on a wide range of issues that are likely to surface during his upcoming confirmation hearings, the date for which has not yet been set. One case that has already received significant attention, and will continue to do so in light of Kennedy’s pivotal role in abortion-rights cases and Trump’s promise to appoint justices who will overrule Roe v. Wade, is Garza v. Hargan, the case of an undocumented teenager in immigration custody who wanted to obtain an abortion. A federal judge in Washington, D.C., ordered the government to allow the teenager to get an abortion, but the government appealed to the D.C. Circuit.
A three-judge panel, which included Kavanaugh, initially blocked the district court’s ruling: The appeals court gave the government 11 days to find a sponsor for the girl, agreeing with the government’s contention that requiring a minor to be released to a sponsor does not place an “undue burden” (the standard under which laws and regulations restricting abortion are reviewed) on the minor’s right to an abortion “as long as the process of securing a sponsor to whom the minor is released occurs expeditiously.”
The teenager appealed to the full D.C. Circuit, which reversed the panel and cleared the way for the teenager to obtain an abortion, which she did the next day. Kavanaugh dissented from that decision, writing that it “is 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.” Kavanaugh did not, however, join a dissent that indicated that the teenager did not have a right to an abortion because she was not a U.S. citizen – a right that the government had conceded in this case.
In 2008, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to have a handgun in the home for self-defense. Kennedy was in the majority in that decision, but since the Heller decision and a later one making clear that the Second Amendment also applies to the states, the Supreme Court has declined to wade into the thorny topic of gun rights. Kavanaugh’s vote in a 2011 follow-up to Heller suggests that he might be willing to go further than the Supreme Court has so far: Kavanaugh dissented from a decision that upheld a D.C. law, passed in the wake of Heller, banning assault weapons. Kavanaugh indicated that he would strike down the law. He acknowledged that machine guns could be banned, but he reasoned that most handguns are semi-automatic, which means that there is virtually no difference between those weapons and the semi-automatic rifles prohibited by the law.
Kavanaugh’s vote in a challenge to the Affordable Care Act’s individual mandate, which required almost all Americans to purchase health insurance or pay a fine, has drawn fire from both sides of the ideological spectrum – from the left for failing to support the ACA, and from the right for failing to strike it down. The D.C. Circuit rejected the challenge, but Kavanaugh dissented from that ruling. He would have ruled that the court did not have the power to review the case because a federal law – the Anti-Injunction Act – limits courts’ jurisdiction over tax challenges, generally barring such lawsuits until the IRS has actually enforced the tax against the challenger. The Supreme Court would later rule that the act did not apply to suits challenging the mandate, even though Chief Justice John Roberts joined the court’s four more liberal justices in holding that the mandate passed constitutional muster because it was a tax.
Kavanaugh’s views on the separation of powers have also been the subject of scrutiny. Earlier this year, the full D.C. Circuit rejected a challenge to the structure of the Consumer Financial Protection Bureau, an independent agency created in the wake of the 2008 financial crisis to combat fraud in loans, mortgages, personal credit card and banking. The law creating the CFPB gave the director of the bureau a five-year term of office and provided that she could be removed only by the president and only for cause. Kavanaugh dissented from the court’s decision, agreeing with the mortgage lender challenging the law that the structure violates Article II of the Constitution, which gives executive power to the president and charges him with ensuring that federal laws are “faithfully executed.” Kavanaugh emphasized that the CFPB’s “concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty” than an independent agency headed by a multi-member board.
Kavanaugh is also likely to face questions about the views he laid out in last year’s dissent from the denial of rehearing by the full court in a challenge to the Federal Communications Commission’s “net neutrality” rule, which was repealed earlier this year but would have required internet service providers to offer equal access to all content and websites. In Kavanaugh’s view, the rule was invalid because it would have a substantial economic and political effect, but Congress had not clearly authorized it. And in any event, Kavanaugh continued, the rule also violated the First Amendment because it restricted “the editorial discretion of Internet service providers.”
The First Amendment was at the heart of a 2010 case in which Kavanaugh wrote for a three-judge district court upholding federal limits on contributions to political parties, known as “soft-money bans.” The ruling relied heavily on a 2003 Supreme Court decision rejecting a First Amendment challenge to the soft-money bans, explaining that as “a lower court, we do not possess the authority to clarify or refine” the Supreme Court’s holding “in the manner suggested by” the challengers. As a Supreme Court justice, of course, Kavanaugh would have more latitude to revisit the justices’ earlier decisions.
Over the next few weeks, the blog will take a closer look at all of these cases, along with topics such as Kavanaugh’s broader approach to actions by administrative agencies, environmental law, religious liberty and the Fourth Amendment. By the time we are done, we hope to provide a better sense of how Kavanaugh might rule on these issues in the future and how, if confirmed to replace Kennedy, he might change the court.
This piece is cross-posted from Howe on the Court.
[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.]