Trump Hits Another Home Run With Supreme Court Pick Brett Kavanaugh

Supreme court Justice Anthony Kennedy retires reshape courtPresident Donald Trump announced on Monday night 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).

Kavanaugh next joined Starr at the Office of the Independent Counsel, where he 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, including representing Adat Shalom Congregation in its fight against Montgomery County, Maryland, which sought to halt construction of a synagogue, and representing 6-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 remains 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 

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.

Other Notable Opinions

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.

As for 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.

A Key Abortion Case

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, as far as 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.

Approach to the Law

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.

From - The Daily Signal - by John G. Malcolm and Elizabeth Slattery

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4 years ago

Regardless of what else Trump might accomplish in his presidency, I already consider him a great president for the judges he as given us.

joseph Kiesznoski
4 years ago

He is the best choice for America, More like him are badly needed.

4 years ago

Good choice by Trump, Kavanaugh has a real good, and clean record.

4 years ago

I am less than pleased with Brett Kavanaugh. Please note that he grew up and still lives in Bethesda, MD; I too grew up in Bethesda, MD, born in DC same as Mr. Kavanaugh. Mr. Kavanaugh attended Georgetown Prep School (’83)–a very distinguished, elite and expensive Jesuit prep school (current tuition: $60K annual resident; $37K annual day student) and lives in Chevy Chase Village, one of several local communities of Maryland that allow illegal aliens to vote in their local elections. Bethesda and CCVillage are in Montgomery County, MD, a very progressive leftist stronghold in MD, with many hard-left progressive radicals in politics; among those who live in my neighborhood are Congressman Jamie Raskin, a very vocal radical loud mouth and hater of Trump who had the baton passed to him when Chris Van Hollen became Senator; Richard Madeleno, a MD Senator in the MD Legislature, same birth year as Kavanaugh, grew up in Silver Spring, MD and went to Georgetown Prep (’83) with Kavanaugh. Madeleno made an unsuccessful run for Governor in the primary in June 2018; he is the first openly gay Senator to serve in MD legislature. Neil Gorsuch also attended Georgetown Prep (’85). Many more notable alumni from politics–Congressmen/Senators/Kennedy’s, sports, entertainment, business world. Watching how Montgomery County has turned progressive leftist over the years has been difficult for this conservative and needless to say I do not hide my conservatism. This is the environment in which Mr. Kavanaugh grew up and still resides with his family…not an easy or friendly environment for conservatives. There are friendly democrats who live around me, but the radial progressives are arrogant, rude and holier-than-though with attitude! I have my concerns with Brett Kavanaugh simply because I know this area well, I know that Catholic charities and churches have harbored and helped illegal aliens; although the advertised supporter (with grants provided by Mo Co Exec Council out of my taxes), is Casa de MD. Please also note that Tom Perez, the madman who is running the DNC and former Labor Sec for Obama, was a volunteer for CASA de Maryland, a George Soros-funded advocacy group representing the interests of illegal aliens.

4 years ago
Reply to  ScarletDove

So virtually NO INFORMATION of note on Kavanaugh himself from what I can read from your post. Merely that the area he grew up in, which you also live in by the way and seem to be conservative, has become more and more progressive over the years. So therefore, by your own logic, not only is Kavanaugh not a conservative, but neither are you if you apply the same standard. See the flaw in your thinking? You are assuming that since some well known progressives come from the area, therefore everyone from that area must be progressive. If no one can be a conservative that comes from the same area that you yourself live in, because a number of noted progressives also come from the same area, how could you be a conservative? Yet you are a conservative.

4 years ago
Reply to  PaulE

PaulE — indeed I could understand why you conclude neither Kavanaugh nor I can survive as conservatives due to political environment, sorry my words gave you that interpretation and I painted a picture for you of “flawed thinking”. I am providing the background of this area and what we as conservatives (and there are many here) are up against and have seen evolve over the years under our County Council policies. When you are in the minority, you take the results of elections. I have lived in MoCo 72 years, a strong conservative since it is my core value/standard and nothing will change who I am, since conservatism is a way of life. If Kavanaugh has the same strong and tough reserve and holds his strong conservative standards, he will be fine; he is young, has been and will continue to be up against much resistance. This man lives in an entirely different professional world in which I was never exposed–I worked at the NIH 35 years in a clinical/scientific research environment in which I took an oath and was loyal to that oath. I never paid much attention or noticed politics at NIH until Clinton, then Bush administrations, when it became obvious. Thanks PaulE…

4 years ago
Reply to  ScarletDove

Let me clarify ScarletDove, as you have clearly mis-read my post. I consider Kavanaugh a conservative based on his judicial record. That is the only metric of any importance in someone being nominated to the SC. How he rules and how he formulated each decision and whether it was based on sound principles grounded in the Constitution. That is it. Where someone grew up or is currently from is of no consequence in either their beliefs or how they will execute the job they are being nominated for. The fact that several noted Progressives are from the same area means nothing, as virtually every town, city, and state today is composed of a mixture of various political parties and personalities.

I believe you are a conservative, because you say you are and I have no reason to question that. So I was not doubting that you are a conservative, because of where you live.

I live in socialist NJ, yet I have always been a life-long fiscal and constitutional conservative. Many others like me also still live in this Democrat-controlled progressive Utopia of high taxes, massive over-regulations and an ever-growing welfare state. The state many decades ago used to actually be a Republican stronghold, but too many bleeding hearts and empty headed idiots thought it would be “safe” to regularly “compromise” (surrender to the Democrat position for the sake of keeping the so-called peace) with Democrats on issue after issue. Well we know how that turns out and NJ became a solid blue progressive Utopia over 45 years ago. Yet many conservatives like myself still live here along side foaming at the mouth, rabid progressives. So the fact that your state is also a progressive **ll hole, like my state, doesn’t mean real conservatives are not still living there. They are obviously. They just no longer have much say in how the state runs anymore.

R & V Galloway
4 years ago

I so agree with your comment Sam. If you love Obamacare, you will love Kavanaugh. He is not conservative enough, or devoted to the Constitution, or he would never have embraced Obamacare as a “tax.” What “tax” forces Americans to pay for abortifacients as well as birth control if they are conscientiously against it; as well as purchase Insurance from the Government (ourselves) when we did not want it?! Then to carry those who are unable to pay for Insurance (including illegal immigrants) on the backs of hard working Americans! We are becoming a “welfare state”, and that is completely UN-constitutional! It is sad that we would see President Trump compromise like this. He had some wonderful choices, this was NOT one of them. For one, my family is grievously disappointed!! AFA has joined in the opposition to Kavanaugh as a good Supreme Court Choice. We agree with them wholeheartedly!

4 years ago

f You Love Kavanagh …You Love Obamacare

4 years ago

It is vitally important that everyone vote in November (& in their primaries) so the Republicans maintain control. Democrats want to be the ones to replace Justice Kennedy on the Supreme Court so they can continue to legislate from the bench. If they succeed they WILL be the ones to choose Kennedy’s replacement unless Trump’s pick can be confirmed before the elections. Indications are they are going to turn out in record numbers in November to try & take both house but especially the Senate. Republicans hold a VERY narrow majority there. Mid term elections are notorious for favoring the party not in power mainly because people get complacent after their party wins. DO NOT let this happen‼️ Urge everyone to get out & vote. We need a large turnout❗️

4 years ago

Anyone who looks at his record (i.e. RESEARCHES!) will see that Judge Kavanaugh tries his best to “get it right” without personal bias. That doesn’t mean I’ll always agree with him. So what?! We have another SC seat in excellent hands. This legislating from the bench business is for the birds!!!

Glenn Lego
4 years ago

There’s a video in YouTube showing Chuck Schumer spending over 10 minutes railing against President Trumps nominee. It was so sickening that I couldn’t even finish watching it. I don’t see how anyone with an ounce of decency could continually vote for people like Schumer.

4 years ago
Reply to  Glenn Lego

Because they are so brainwashed and this is why they are acting like this.

4 years ago
Reply to  Glenn Lego

Schumer and his pals should be thinking of AMERICA not their own pitiful party. Limited terms!

Wayne Peterkin
4 years ago

While I had a slight preference for a non-Ivy Leaguer, I can support Kavanaugh easily and do so. He needs confirmed very quickly. The Democrats will smear and “bork” this man hoping to block him until after the mid-terms expecting (hoping) to take control of the Senate and block all future nominees as well as all administration policy. We must not allow the Democrats to take that control. Remember, a vote for any Democrats is also a vote for Schumer, Pelosi, Waters, and all the other radical leftists determined to undermine and “fundamentally transform” our nation. The GOP and its candidates may not be perfect by a long shot, but they are light years better than the alternative.

Charles Plumery
4 years ago

As a citizen with many years under my belt, I find it appalling to hear Schumer say he will block any nominee, admitting that I grew up in the age of McCarthy so my hero were Roy Cohn, joe McCarthy etc. but in my view Schumer is obstructing the lawful pursuit of government and should be brought before the bar in chain if need be.

4 years ago

Must be a home run for Trump
Judging by how Schumer, Warren and the rest of the Dems are reacting.
Maybe court activism will be tamped down a bit.

Glenn Lego
4 years ago
Reply to  Hen3ry

Or tamped down a whole lot!

4 years ago

Great! Now McConnell has to focus, and I mean FOCUS, on getting the handful of so-called “moderate Republicans” (read liberal Democrats with an (R) after their name or simply RINO if you prefer) to actually support the nomination and vote for his confirmation. Mitch “Mr. Process above all” McConnell can’t just say he will hold hearings in the early fall and leave it at that. He has to do what the leadership position in the Senate requires to ensure the President gets this SC nominee approved BEFORE the mid-terms. Yes, that means doing actual work, but a little work, once in a while, never really hurt anyone. McConnell can’t just sit back and hope his fellow Republicans in the Senate vote the right way.

Wayne Peterkin
4 years ago
Reply to  PaulE

I would favor cancelling the summer recess and keeping the Senate in session just to get the confirmation hearings started right now! Let our Senate earn their pay!

4 years ago
Reply to  Wayne Peterkin

McConnell already scaled back the Senate summer recess a number of weeks ago. He cut it by about half, so Senators could still spend a few weeks back home campaigning for the mid terms. There is NO REASON, with the revised Senate summer schedule, that the confirmation hearings and vote couldn’t be done by early September.

Yes, Congress in general needs to really step-up their time in session and actual, real hours devoted to doing the People’s business. That means ending the current four day work weeks and multiple multi-week recesses every year. That means doing actual work to clean up the Washington mess and passing the Trump agenda. That is OUR agenda. This is the 21st century, not the 18th century. Members of Congress commute by trains or planes to go back and forth to home. None of these politicians is a real, working farmer needing weeks and weeks off to personally tend to their crops. So there is no reason why they shouldn’t have to live by the same productivity standards the rest of us do.

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