Kavanaugh has been a leading defender of the government’s position when it comes to using military commissions to prosecute terrorism suspects
Washington, D.C.: Brett Kavanaugh, the federal judge nominated by President Donald Trump on Monday to the Supreme Court, has endorsed robust views of the powers of the president, consistently siding with arguments in favour of broad executive authority during his 12 years on the bench in Washington.
He has called for restructuring the government’s consumer watchdog agency so the president could remove the director, and has been a leading defender of the government’s position when it comes to using military commissions to prosecute terrorism suspects.
Kavanaugh is “an unrelenting, unapologetic defender of presidential power” who believes courts can and should actively seek to rein in “large swaths of the current administrative state,” said University of Texas law professor Stephen Vladeck, who closely follows the US Court of Appeals for the District of Columbia Circuit.
Kavanaugh’s record suggests that if he is confirmed, he would be more to the right than the man he would replace, Justice Anthony Kennedy, for whom he clerked. Kavanaugh has staked out conservative positions in cases involving gun rights, abortion and the separation of powers.
Still, in the run-up to his nomination on Monday, Kavanaugh fielded criticism from some social conservatives who objected to language he used in connection with the Affordable Care Act’s contraception mandate, and to his opinion in a case involving an immigrant teen seeking an abortion. Some of Trump’s core backers also expressed concerns about his ties to the Bush family and GOP establishment.
Washington lawyer Helgi Walker, who worked with Kavanaugh in the White House Counsel’s Office during the George W. Bush administration, said Monday that her former colleague would be “a fair and open-minded justice who values individual liberty and freedom.”
“All Americans should be pleased with this fabulous choice,” said Walker, who attended the reception at the White House. “He will respect the Constitution and follow the law wherever it goes instead of making it up himself as he goes along.”
Kavanaugh, 53, was born in Washington and was a standout student and athlete. He attended Georgetown Preparatory School, the same Jesuit high school in Maryland as Trump’s first Supreme Court pick, Neil Gorsuch, another former Kennedy clerk.
His mother, Martha, a public-school teacher in Washington, D.C., and his father, Edward, both graduated from law school in 1978 when Kavanaugh was a teenager. His mother went on to become a prosecutor and Montgomery County (Maryland) Circuit Court judge, and his father led a trade association.
After graduating from Yale Law School, Kavanaugh spent his early career steeped in Republican politics and partisan warfare in the nation’s capital. As a young lawyer for independent counsel Kenneth Starr, he investigated the death of President Bill Clinton’s deputy counsel, Vincent Foster, ultimately concluding there was no doubt Foster had killed himself. He laid out the grounds for impeaching Clinton after the president’s affair with a White House intern.
His views of presidential power were shaped in part by the years he worked as a close aide to Bush, including two years in the White House Counsel’s Office and three years as staff secretary.
After becoming a judge, Kavanaugh argued that presidents should not be distracted while in office by civil lawsuits or criminal investigations, which “would ill serve the public interest, especially in times of financial or national security crisis,” he wrote in a 2009 law review article.
That position could become a focus of his confirmation hearing. Special Counsel Robert Mueller is sparring with Trump’s lawyers over his request to interview the president for the investigation into Russian interference in the 2016 presidential election — a legal battle that could end up before the Supreme Court.
Kavanaugh’s confirmation to the appellate court was a divisive, drawn-out process. Bush nominated him to the D.C. Circuit in 2003, but Democrats held up the confirmation because of Kavanaugh’s work in the White House and on the Starr report. He was eventually confirmed by the Senate in 2006 by a vote of 57 to 36.
On the bench, Kavanaugh is a proponent of “originalist,” the practice of interpreting the Constitution and statutes by looking at the original meaning and text.
Shannen Coffin, a former deputy assistant attorney general in the Bush administration, called Kavanaugh an “extraordinary choice” and noted his deep understanding of the “proper role of the courts” and separation of powers.
“This is a judge and hopefully soon a justice who recognises that preserving the proper role of each branch of government is fundamental to protecting individual liberties,” Coffin said Monday.
Kavanaugh objected to a 2011 ruling that upheld Washington’s ban on semi-automatic rifles. In his lengthy dissent from two other judges nominated by Republican presidents, Kavanaugh pointed to the Supreme Court’s landmark decision declaring an individual right to gun ownership apart from military service.
“Gun bans and gun regulations that are not long-standing or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right,” Kavanaugh wrote.
In other instances, Kavanaugh’s approach has been less predictable. The judge upset environmentalists, for instance, with rulings against Obama-era regulations of toxic air pollution from power plants and efforts to cut emissions of heat-trapping gases. But in 2010, he upheld the Environmental Protection Agency’s oversight of a California rule limiting emissions from refrigeration units in trucks challenged by the trucking industry.
“He seems to look for the best tool in a situation, which is not necessarily the trademark of a devout originalist,” said legal scholar Adam Feldman, the founder of the Empirical SCOTUS blog. “While those are his primary tools, those aren’t always his go to.”
In a recent high-profile case involving abortion, Kavanaugh was again in the minority among his D.C. Circuit colleagues. He sided with the Trump administration in its refusal to “facilitate” abortion services for a pregnant teen in immigration custody. Kavanaugh said the majority “badly erred” and had created a new right for undocumented immigrant minors in custody to “immediate abortion on demand.”
Kavanaugh’s views on executive power are detailed at length in a 2016 opinion finding the organisation of the Consumer Financial Protection Bureau unconstitutional. The structure, he wrote, gives too much executive control to a “single, unaccountable, unchecked Director.”
“Other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power,” he wrote in a 101-page opinion. “That is not an overstatement.”
Kavanaugh’s decision for a three-judge panel of the court was overturned in January by the full D.C. Circuit.
Off the bench, Kavanaugh is known as affable and outgoing, with friendships that cross party lines. He watches baseball games at Nationals Park with US District Judge James Boasberg, an Obama nominee who was Kavanaugh’s housemate during law school.
Gary Feinerman, an Obama nominee on the federal bench in Chicago, got to know Kavanaugh when they were law clerks for Kennedy, the Supreme Court justice, in 1993.
“He’s not one to allow disagreements over legal issues to interfere with or impede personal friendships,” Feinerman said.
An observant Catholic, Kavanaugh serves meals to the homeless through a Catholic Charities program and regularly attends church at the Shrine of the Most Blessed Sacrament in Washington with his daughters and his wife, Ashley, who was Bush’s personal secretary.
In introducing Kavanaugh, Trump said the judge has served on the D.C. Circuit Court with “great distinction, authoring over 300 opinions which have been widely admired for their skill, insight, and rigorous adherence to the law.”
Joined by his wife and daughters, Margaret and Liza, Kavanaugh stressed his Catholic background and commitment to judicial independence, pledging to keep an open mind and preserve the Constitution. Judges, he said, “must interpret the law, not make the law.”
He recalled his first date with Ashley, which took place on Sept. 10, 2001, a day before the terrorist attacks on Washington and New York. “The next morning, I was a few steps behind her as the Secret Service shouted at all of us to sprint out the front gates of the White House because there was an inbound plane,” he recalled.
He talked about his passion for sports, including his role as basketball coach to his two daughters for the last seven years. His daughters’ teammates, Kavanaugh said, refer to him as “Coach K.”