Trump Hits Another Home Run With Supreme Court Pick Brett Kavanaugh

COMMENTARY Courts

Trump Hits Another Home Run With Supreme Court Pick Brett Kavanaugh

Jul 10th, 2018 14 min read

Commentary By

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Elizabeth Slattery @EHSlattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Photo: Willis Bretz for The Heritage Foundation

President Donald Trump announced on Monday his nomination of D.C. Circuit Judge Brett Kavanaugh to succeed Justice Anthony Kennedy on the Supreme Court. Kavanaugh, who was included in The Heritage Foundation’s original list of potential Supreme Court nominees, is a very promising choice.

The battle lines were already drawn before Trump made his announcement, with Senate Minority Leader Chuck Schumer, D-N.Y., declaring he would not vote for any of the individuals on Trump’s short list.

Meanwhile, Senate Majority Leader Mitch McConnell, R-Ky., promised the confirmation vote would happen this fall. Now, the Senate Judiciary Committee will begin the process of reviewing Kavanaugh’s judicial record and background, with a hearing coming later this summer.

Let’s take a closer look at Kavanaugh.

Born in Washington, D.C., and raised in Bethesda, Maryland, Kavanaugh is 53 years old, Catholic, and married with two young daughters (whose basketball teams he coaches). He obtained both his undergraduate and law degrees from Yale University. After law school, Kavanaugh clerked for 3rd Circuit Judge Walter Stapleton and 9th Circuit Judge Alex Kozinski.

Following a one-year fellowship in the office of Solicitor General Ken Starr, Kavanaugh clerked for Justice Anthony Kennedy on the Supreme Court (along with fellow law clerk, and current Supreme Court Justice Neil Gorsuch). Following his Supreme Court clerkship, Kavanaugh joined 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 was the principal author of the Starr Report to Congress on the Monica Lewinsky scandal.

He also served as a partner at Kirkland & Ellis, a prestigious law firm where his practice focused on appellate matters. Kavanaugh took on several pro bono matters while in private practice, including representing Adat Shalom Congregation in its fight against Montgomery County, Maryland, which sought to halt construction of a synagogue, and representing six-year-old Elian Gonzalez after immigration authorities decided to return him to Cuba.

Prior to his appointment to the bench, Kavanaugh served as associate counsel, senior associate counsel, and then staff secretary to President George W. Bush.

Kavanaugh is no stranger to a tough confirmation process. Although he was nominated to the D.C. Circuit (which is often regarded as a stepping stone to the Supreme Court) in 2003, the Senate did not confirm Kavanaugh until 2006, by a vote of 57-36. Four Democratic senators voted in favor of his confirmation, but none of them remain in the Senate today.
 

As Kavanaugh explained at a Heritage Foundation event in 2017:

I think Chief Justice John Roberts and Justice Elena Kagan, both of whom had substantial White House experience, would probably say that their White House experiences likewise have made them better jurists. But at the time of my confirmation in 2006, it is fair to say that certain Senators were not sold on that. They were not sold that the White House was the best launching pad for a position on the D.C. Circuit. Indeed, one Senator at my hearing noted that I had worked at the White House for more than five years and said in his remarks, this nomination “is not just a drop of salt in the partisan wounds, it is the whole shaker.” And this is true. After the hearing, my mom said to me, “I think he really respects you.” As only a mom can.

Approach to Judging and Notable Opinions

An outstanding writer, Kavanaugh has written approximately 300 opinions during his 12 years on the bench, many dealing with controversial topics that will likely come up during his confirmation hearing. Kavanagh has also written extensively on the separation of powers and statutory interpretation, and has co-authored a book on judicial precedent (along with Bryan Garner and 11 appeals court judges, including then-Judge Gorsuch).

Drawing from his experience working in the Bush White House, Kavanaugh argued in a 2009 article that Congress should consider enacting a law that would protect a sitting president from criminal investigation, indictment, or prosecution while in office. He explained:

The indictment and trial of a sitting president … would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Kavanaugh is a committed textualist. As Kavanaugh succinctly stated in a book review published in the Harvard Law Review, “The text of the law is the law.” He has reiterated this view in many of his opinions.

In Fourstar v. Garden City Group, Inc. (2017), he wrote, “It is not a judge’s job to add to or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.” And in District of Columbia v. Department of Labor (2016), he write, “As judges, we are not authorized to rewrite statutory text simply because we might think it should be updated.”

Kavanaugh is a critic of Chevron deference, under which courts show considerable deference to executive branch agencies in interpreting arguably ambiguous statutes. In his view, “Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”

And in 2017, while delivering the Joseph Story Distinguished Lecture at The Heritage Foundation, Kavanaugh spoke eloquently about the judiciary’s essential role in maintaining the separation of powers and concluded:

Statutory interpretation is inherently complex, people say. It is all politics anyway, some contend. I have heard all the excuses. I have been doing this for 11 years. I am not buying it. In my view, it is a mistake to think that this current mess in statutory interpretation is somehow the natural and unalterable order of things. Put simply, we can do better in the realm of statutory interpretation. And for the sake of the neutral and impartial rule of law, we must do better.

His record as a judge reflects a skepticism toward Chevron deference. Indeed, Kavanaugh has written or joined dozens of opinions finding an agency’s actions unlawful as well as many dissenting opinions (some of which were ultimately vindicated by the Supreme Court) in which the court’s majority upheld agency actions.

For example, he dissented from his court’s ruling that the Environmental Protection Agency could disregard cost-benefit analysis when considering a proposed rule in Coalition for Responsible Regulation v. EPA (2012). The Supreme Court later reversed that decision, citing Kavanaugh’s dissenting opinion.

And in U.S. Telecom Ass’n v. FCC (2017), a case involving net neutrality, Kavanaugh dissented from the court’s refusal to hear the case en banc. He argued that the Federal Communications Commission was not entitled to Chevron deference because Congress had not explicitly delegated authority to the FCC to treat the internet like a public utility subject to regulation.

In terms of the separation of powers, Kavanaugh dissented in Free Enterprise Fund v. Public Company Accounting Oversight Board (2008), arguing that limitations on the president’s ability to remove members of the Public Company Accounting Oversight Board violated the Constitution. He stated that the “President’s power to remove is critical to the President’s power to control the Executive Branch and perform his Article II responsibilities.”

Similarly, in PHH Corporation v. Consumer Financial Protection Bureau (2016), Kavanaugh wrote the majority opinion holding that the structure of the Consumer Financial Protection Bureau—an independent agency headed by a single individual who can only be removed for cause—was unconstitutional.

When the D.C. Circuit sitting en banc reached the opposite conclusion, Kavanaugh wrote a powerful dissent suggesting that the Supreme Court might wish to reconsider its holding in Humphrey’s Executor v. U.S. (1935), which upheld the constitutionality of independent agencies.

Separation of powers was also at the heart of the 2016 per curiam (unsigned) opinion that Kavanaugh joined in al-Bahlul v. U.S., in which the court upheld the conviction before a military commission of Osama bin Laden’s driver for conspiracy to commit war crimes. While the majority declined to reach the issue of whether Congress had the authority to make conspiracy a triable offense before a military tribunal (because it is not an offense under the international laws of war), Kavanaugh wrote a concurring opinion stating that “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.”

This opinion echoed Kavanaugh’s earlier concurrence in al-Bihani v. Obama(2010), in which he argued that international law should not present a judicially enforceable limit on the president’s statutory authority to detain enemy combatants unless Congress expressly incorporates international law norms into U.S. law.

In terms of the Second Amendment, Kavanaugh wrote a dissenting opinion in Heller v. District of Columbia (2011)—a follow-on case to the Supreme Court’s landmark ruling acknowledging the Second Amendment’s protection of an individual right to keep and bear arms. Kavanaugh would have held D.C.’s ban on the possession of semi-automatic rifles unconstitutional, stating that “Heller and McDonald leave 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.”

Anticipating the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission, Kavanaugh ruled in Emily’s List v. FEC (2009) that the commission’s regulations limiting independent political expenditures by non-profit organizations violated the First Amendment. Kavanaugh also wrote the majority opinion in South Carolina v. Holder (2012), upholding South Carolina’s voter ID law.

Kavanaugh has been criticized by some on the right for not going far enough in opinions he wrote involving religious liberty (Newdow v. Roberts and Priests for Life v. HHS), abortion (Garza v. Hargan), and Obamacare (Seven-Sky v. Holder).

In 2010 in Newdow, the D.C. Circuit rejected an establishment clause challenge to prayers offered at the presidential inauguration and to the inclusion of “so help me God” in the presidential oath. While the majority held that the plaintiffs lacked standing and therefore did not reach the merits of the case, Kavanaugh concurred, stating that he would have reached the merits (which is why he has been criticized by some conservatives) and squarely ruled against the challengers, finding that “both ‘so help me God’ in the Presidential oath and the prayers at the Presidential Inauguration do not violate the Establishment Clause.”

In 2015 in Priests for Life v. Burwell, the court held that the Religious Freedom Restoration Act did not prohibit the Obama administration from requiring religious non-profit groups who objected to the so-called contraceptive mandate to file forms with their insurers that would have facilitated contraceptive coverage, including abortifacients, for their employees.

In a dissenting opinion, Kavanaugh stated that he would have invalidated the mandate as a violation of the deeply-held religious convictions of those organizations, arguing that even if the government could, for the sake of argument, establish a compelling interest in ensuring that women have access to contraceptive services, the Obama administration should still lose because there were less restrictive means available to accomplish that objective.

Somewhat unfairly, even entertaining this possibility triggered the objections of some conservatives, who sought to cast Kavanaugh as a weak champion of religious liberty. Kavanaugh’s position was ultimately vindicated by the Supreme Court in Zubik v. Burwell (2016).

Moreover, in terms of Kavanaugh’s commitment to religious liberty, it is worth noting that during the recent oral arguments in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, a case challenging D.C. Metro’s ban on religious advertising, including Christmas ads, Kavanaugh asked some tough questions of Metro’s lawyer, stating his view that the ban was “pure discrimination” and “odious” to the First Amendment.

In 2017, in Garza, Kavanaugh voted twice in favor of the Trump administration’s legal argument that an illegal immigrant minor in U.S. custody does not have a right to an immediate government-facilitated abortion on demand.

In the initial panel decision, Kavanaugh wrote for the majority, reversing the district court ruling in favor of the illegal immigrant minor. When the full D.C. Circuit reviewed the case and ruled in favor of the illegal immigrant, Kavanaugh dissented, stating that the court had “badly erred” in adopting a “radical extension of the Supreme Court’s abortion jurisprudence” and inventing “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”

His dissent fully endorsed the government’s “permissible interests in favoring fetal life” and “refraining from facilitating abortion.” In a separate dissent, Judge Karen Henderson concluded that as a noncitizen, the young woman had no right to an abortion.

Some conservatives have criticized Kavanaugh for not joining Henderson’s opinion. However, Kavanaugh not only didn’t need to go as far as Henderson did to rule in the government’s favor, the government’s attorneys had conceded that an unlawful immigrant minor is assumed to have a right to an abortion.

Finally, in 2011 in Seven-Sky, the D.C. Circuit upheld the constitutionality of Obamacare’s individual mandate under the Commerce Clause in a surprising opinion by Laurence Silberman, a Reagan appointee and a highly-respected conservative jurist. Kavanaugh dissented, writing that the mandate was “unprecedented on the federal level in American history” and predicting that it would “usher in a significant expansion of congressional authority with no obvious principled limit” (forecasting the dissenting views of Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy in National Federation of Independent Business v. Sebelius (2012).

Rather than taking the majority’s commerce clause argument head-on (which is what Kavanaugh’s critics would have preferred), he explained that it was premature to rule on the individual mandate’s constitutionality and that the case was not ripe for adjudication under the Anti-Injunction Act because the mandate had not yet taken effect, a defect which Kavanaugh believed deprived the court of jurisdiction to consider the case.

In evaluating each of these decisions, it is worth remembering that Kavanaugh sits on a court in which a majority of the judges were appointed by Democratic presidents and would certainly not be considered conservative jurists.

Moreover, a good conservative judge might well decide to fashion an opinion in a way designed to maximize the likelihood that a closely-divided Supreme Court would ultimately agree to hear the case and adopt his position, a strategy that Kavanaugh has effectively utilized on several occasions over the years. As Kavanaugh stated during his Story Lecture at Heritage, “[W]hen Justice Kennedy says something, I listen.”

In short, Kavanaugh has been playing the long game to advance an understanding of the laws and Constitution that is faithful to the text and original meaning.

In a 2017 speech at Notre Dame Law School, Kavanaugh spoke about Scalia’s impact on the law and the late justice’s view that federal judges “should not be making policy-laden judgments.” Kavanaugh remarked, “I believe very deeply in [the] visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.”

He elaborated on what Scalia stood for as a judge:

[R]ead the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. The Constitution is a document of majestic specificity defining governmental structure, individual rights, and the role of a judge. Remember that the structural provisions of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. … Remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits.

Though Kavanaugh was speaking about Scalia, his words could very well describe his own approach to the law and his commitment to the Constitution.

Americans undoubtedly will learn more about Brett Kavanaugh, the Supreme Court, and the important, but limited, role judges should play in our government as the confirmation process unfolds in the Senate.

While Schumer and other Senate Democrats have already announced their intention to block any nominee, they will have a hard case to make given Kavanaugh’s impressive record, fidelity to the Constitution, and respect for the rule of law.