Brett Kavanaugh

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Brett Kavanaugh
Judge Brett Kavanaugh.jpg
Judge of the United States Court of Appeals for the District of Columbia Circuit
Assumed office
May 30, 2006
Appointed by George W. Bush
Preceded by Laurence Silberman
White House Staff Secretary
In office
June 6, 2003 – May 30, 2006
President George W. Bush
Preceded by Harriet Miers
Succeeded by Raul F. Yanes
Personal details
Born Brett Michael Kavanaugh
(1965-02-12) February 12, 1965 (age 53)
Washington, D.C., U.S.
Political party Republican
Spouse(s) Ashley Estes (m. 2004)
Education Yale University (BA, JD)
*Pending Senate confirmation

Brett Michael Kavanaugh (born February 12, 1965) is a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He was Staff Secretary in the Executive Office of the President of the United States under President George W. Bush.

A protégé of Kenneth Starr, Kavanaugh played a lead role in drafting the Starr report, which urged the impeachment of President Bill Clinton.[1] Kavanaugh led the investigation into the suicide of Clinton aide Vincent Foster. After the 2000 U.S. Presidential election, in which Kavanaugh worked for the George W. Bush campaign in the Florida recount, Kavanaugh joined Bush's staff, where he led the Administration's effort to identify and confirm judicial nominees.[2]

Kavanaugh was nominated to the D.C. Appeals Court by Bush in 2003. His confirmation hearings were contentious and stalled for three years over charges of partisanship. Kavanaugh was ultimately confirmed in May 2006 after a series of negotiations between Democratic and Republican senators.[3][4][5]

On June 27, 2018, Associate Justice Anthony Kennedy announced his retirement, effective July 31, 2018. Kavanaugh was nominated by President Trump to fill the vacancy on July 9, 2018.[6]

Early life

Kavanaugh was born on February 12, 1965 in Washington, D.C., and raised in Bethesda, Maryland, the son of Martha Gamble (Murphy) and Everett Edward Kavanaugh, Jr.[7][8] His mother served as a Maryland state Circuit Court Judge from 1995 to 2001.[9] He is a Roman Catholic and graduated from the Georgetown Preparatory School.

After graduating from Georgetown Prep, Kavanaugh attended Yale University and graduated with a Bachelor of Arts, cum laude, in 1987. At Yale, he joined the Delta Kappa Epsilon fraternity. He then attended Yale Law School, and graduated with a Juris Doctor in 1990. At Yale Law, he served as Notes Editor of the Yale Law Journal. He is married to Ashley Estes, a native of Abilene, Texas, who formerly served as Personal Secretary to the President in the White House at the same time as her future husband. They have two daughters.

Kavanaugh first worked as a law clerk for Judge Walter King Stapleton of the United States Court of Appeals for the Third Circuit and Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.[10] Kavanaugh then earned a one-year fellowship with the Solicitor General of the United States, Ken Starr.[10] Kavanaugh next clerked for Supreme Court Justice Anthony Kennedy.[10]

Office of the Independent Counsel

After his Supreme Court clerkship, Kavanaugh worked for Starr again, now as an Associate Counsel in the Office of Independent Counsel, where he handled a number of the novel constitutional and legal issues presented during that investigation and was a principal author of the Starr Report to Congress on the Monica Lewinsky-Bill Clinton and Vincent Foster investigation.[11] There, Kavanaugh argued on broad grounds for the impeachment of Bill Clinton.[12] Kavanaugh was later a partner at the law firm of Kirkland & Ellis.[10] In Swidler & Berlin v. United States (1998), Kavanaugh argued his first and only case before the Supreme Court when he asked it to disregard attorney–client privilege in relation to the investigation of Foster's death.[13] The Supreme Court rejected Kavanaugh's arguments by a vote of 6–3.[14]

Bush White House

After George W. Bush became president in 2001, Kavanaugh served for two years as Senior Associate Counsel and Associate Counsel to the President.[10] In that capacity, he worked on the numerous constitutional, legal, and ethical issues handled by that office. Starting in 2003, he served as Assistant to the President and as the White House Staff Secretary.[10] In that capacity, he was responsible for coordinating all documents to and from the president.

D.C. Circuit nomination and confirmation

Kavanaugh sworn in by Justice Kennedy as President Bush and Kavanaugh's wife, Ashley, look on.

President George W. Bush first nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003, to a vacancy created by Judge Laurence Silberman, who took senior status in November 2000.[15] Kavanaugh's nomination was stalled in the Senate for nearly three years. Democratic Senators accused him of being too partisan, with Senator Dick Durbin calling him the "Forrest Gump of Republican politics."[16]

The United States Senate Committee on the Judiciary recommended confirmation on a 10–8 party-line vote on May 11, 2006, and Kavanaugh was thereafter confirmed to the court[17][18][19] by the U.S. Senate on May 26, 2006 by a vote of 57–36. On June 1, 2006, he was sworn in by Justice Anthony Kennedy, for whom he had previously clerked, during a special Rose Garden ceremony at the White House.[20] Kavanaugh was the fourth judge nominated to the D.C. Circuit by Bush and confirmed by the United States Senate. Kavanaugh began hearing cases on September 11, 2006 and had his formal investiture on September 27 at the Prettyman Courthouse. His first published opinion was released on November 17, 2006. He authored the opinion of the court for a unanimous three-judge panel in the case of National Fuel Gas Supply Corp. v. FERC.

Accusations of misleading Senate committee

In July 2007, Democratic Senators Patrick Leahy and Dick Durbin accused Kavanaugh of "misleading" the Senate committee during his nomination stemming from the Bush White House detention policy.[21]

Opinions

Judge Kavanaugh in 2016

Abortion

Kavanugh has stated that he considers Roe v. Wade binding under stare decisis and would seek to uphold it,[22] but has also ruled in favor of some restrictions for abortion.[23][24][25]

In May 2006, Kavanaugh stated he "would follow Roe v. Wade faithfully and fully" and that the issue of the legality of abortion has already "been decided by the Supreme Court."[22] During the hearing, he stated that a right to an abortion has been found "many times", citing Planned Parenthood v. Casey.[22]

In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion.[25] Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting.[23] The D.C. Circuit's opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).[24]

Affordable Care Act

In November 2011, Kavanaugh dissented when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case.[26][27] In 2014, Kavanaugh concurred in the judgment when the en banc D.C. Circuit found that the Free Speech Clause did not forbid the government from requiring meatpackers to include a country of origin label on their products.[28][29] After a unanimous panel found that the ACA did not violate the Constitution’s Origination Clause in Sissel v. United States Department of Health & Human Services (2014), Kavanaugh wrote a lengthy dissent from the denial of rehearing en banc.[30][31]

Economics and environmental regulation

After Kavanaugh wrote for a divided panel striking down a Clean Air Act regulation, the Supreme Court of the United States reversed 6–2 in EPA v. EME Homer City Generation, L.P. (2014).[32][33] Kavanaugh dissented from the denial of rehearing en banc of a unanimous panel opinion upholding the agency's regulation of greenhouse gas emissions and a fractured Supreme Court reversed 5 to 4 in Utility Air Regulatory Group v. Environmental Protection Agency (2014).[34][35] After Judge Kavanaugh dissented from a per curiam decision allowing the agency to disregard cost–benefit analysis, the Supreme Court reversed 5–4 in Michigan v. EPA (2015).[36][37]

In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design.[38][39] In October 2016, Kavanaugh wrote for a divided panel finding that the CFPB's design was unconstitutional, and made the CFPB Director removable by the President of the United States.[40][41] In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.[42][43]

Terrorism

In 2014, Kavanaugh concurred in the judgment when the en banc circuit found that Ali al-Bahlul could be retroactively convicted of war crimes, provided existing statute already made it a crime "because it does not alter the definition of the crime, the defenses or the punishment”.[44][45] In October 2016, Kavanaugh wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if his offenses are not internationally recognized as war crimes under the law of war.[46][47]

In Meshal v. Higgenbotham (2016), Kavanaugh concurred when the divided panel threw out a claim by an American that he had been disappeared by the FBI in a Kenyan black site.[48][49]

Scholarship

In 2009, Kavanaugh wrote an article for the Minnesota Law Review where he argued that U.S. Presidents should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”[50] This article garnered attention in 2018 when Kavanaugh was considered among leading candidates to be nominated to the Supreme Court by President Donald Trump, whose 2016 presidential campaign is the subject of an ongoing federal probe by Special Counsel Robert Mueller.[50]

When reviewing a book on statutory interpretation by Second Circuit Chief Judge Robert Katzmann, Kavanaugh observed that judges often cannot agree on a statute if its text is ambiguous.[51] To remedy this, Kavanaugh encouraged judges to first seek the “best reading” of the statute, through "interpreting the words of the statute" as well as the context of the statute as a whole, and only then apply other interpretive techniques that may justify an interpretation that differs from the "best meaning" such as constitutional avoidance, legislative history, and Chevron deference.[51]

Statistical projections

Several academic studies that have attempted to measure judges based on their ideology or "Scalia-ness" have included Kavanaugh.

One study "derived ideology scores for the D.C. Circuit judges based on lawyers' (who practiced before these judges) perceptions of the judges' political preferences," with Kavanaugh ranked as the fifth most conservative judge on the court.[52] The same study praised Kavanaugh's "ability to toe a moderate line while ruling predominantly conservatively," as well as "his moderately conservative behavior and his high level of agreement with the other judges on the circuit."[52] The study further observed that "[c]ompared to the recent addition of Justice Gorsuch to the Supreme Court . . . Judge Kavanaugh uses less originalist and textualist language in his opinions although he is well-versed in statutory interpretation."[52]

FiveThirtyEight used Judicial Common Space scores, which are based not off of a judge's behavior, but rather the ideology scores of either home state senators or the appointing president, to find that Kavanaugh would likely be more conservative than Justices Alito and Gorsuch, but less conservative than Justice Thomas, if placed on the Supreme Court.[53] The Washington Post's statistical projections predicted that all of Trump's announced candidates were "largely statistically indistinguishable" and estimating that Kavanaugh would place ideologically between Justices Gorsuch and Alito.[54]

Possible Supreme Court appointment

According to the New York Times, on July 2, 2018, Kavanaugh was one of four circuit judges to receive a personal 45 minute interview by President Donald Trump to replace Justice Kennedy. The White House refused to confirm or deny this.[55] On July 9, President Trump nominated Kavanaugh for a seat on the Supreme Court.

See also

References

  1. Chen, David; Lewis, Neil A. (September 12, 1998). "TESTING OF A PRESIDENT: THE AUTHORS; A Young Protege of Starr, and an Established Nonfiction Writer". New York Times. Retrieved November 8, 2011. 
  2. Lewis, Neil (April 28, 2004). "Bush Aide on Court Nominees Faces Fire as Nominee Himself". The New York Times. New York City: The New York Times Company. Retrieved November 8, 2011. 
  3. Lewis, Neil (May 10, 2006). "Senators Renew Jousting Over Court Pick". The New York Times. New York City: New York Times Company. Retrieved November 8, 2011. 
  4. Lewis, Neil (July 26, 2003). "Bush Selects Two for Bench, Adding Fuel to Senate Fire". The New York Times. New York City: New York Times Company. Retrieved November 8, 2011. 
  5. Kellman, Laurie (May 23, 2006). "Kavanaugh Confirmed U.S. Appellate Judge". Washington Post. Washington DC: Nash Holdings LLC. Retrieved November 8, 2011. 
  6. Wilson, Chris (June 27, 2018). "Appellate judge on D.C. Circuit seen as early favorite on Trump's Supreme Court shortlist". Yahoo! News. Retrieved June 28, 2018. 
  7. "George W. Bush: Remarks at a Swearing-In Ceremony for Brett Kavanaugh as a United States Circuit Judge for the District of Columbia". www.presidency.ucsb.edu. 
  8. "The Social List of Washington, D.C. and Social Precedence in Washington". J.S. Murray. July 10, 1990 – via Google Books. 
  9. Martha G. Kavanaugh, Maryland Circuit Court Judge, maryland.gov. Retrieved July 2, 2018.
  10. 10.0 10.1 10.2 10.3 10.4 10.5 Roberts, Edith (June 28, 2018). "Potential nominee profile: Brett Kavanaugh". SCOTUSblog. Retrieved July 6, 2018. 
  11. "Judicial Nominations – Judge Brett M. Kavanaugh". 
  12. Landler, Mark; Apuzzo, Matt (July 6, 2018). "Brett Kavanaugh, Supreme Court Front-Runner, Once Argued Broad Grounds for Impeachment". The New York Times. p. A1. Retrieved July 6, 2018. 
  13. Kranish, Michael; Marimow, Michael (July 6, 2018). "Kavanaugh’s unorthodox path to Trump’s Supreme Court shortlist". The Washington Post. Retrieved July 9, 2018. 
  14. "Swidler & Berlin v. United States". Oyez Project. Retrieved July 9, 2018. 
  15. {{cite web |title=Presidential Nomination 840, 108th United States Congress |date=July 25, 2013 |url=https://www.congress.gov/nomination/108th-congress/840 |publisher=[[United States Congress |accessdate=July 6, 2018}}
  16. "CONFORMATION HEARING ON THE NOMINATION OF BRETT M. KAVANAUGH TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT". Washington DC: U.S. Government Publishing Office. April 27, 2004. 
  17. "Presidential Nomination 1179, 109th United States Congress". United States Congress. January 25, 2006. Retrieved July 6, 2018. 
  18. "U.S. Senate: U.S. Senate Roll Call Votes 109th Congress – 2nd Session". Washington DC: U.S. Senate. May 26, 2006. 
  19. "Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit: Hearing before the Committee on the Judiciary, United States Senate, One Hundred Ninth Congress, Second Session". Washington, DC: United States Government Publishing Office. May 9, 2006. Retrieved July 5, 2018. 
  20. Associated Press, June 1, 2006, "President Celebrates Judge's Swearing-In" by Deb Riechmann
  21. Lewis, Neil A. (July 4, 2007). "2 Senators Accuse Judge of Misleading Committee". The New York Times. New York City: New York Times Company. Retrieved July 5, 2018. 
  22. 22.0 22.1 22.2 "5/9/2006 Schumer: "Do you consider Roe v. Wade to be an abomination?"". CSPAN. July 5, 2018. Retrieved July 8, 2018. 
  23. 23.0 23.1 Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam).
  24. 24.0 24.1 "Azar v. Garza". SCOTUSblog. Retrieved July 6, 2018. 
  25. 25.0 25.1 Note, Recent Case: En Banc D.C. Circuit Upholds Order Requiring HHS to Allow an Undocumented Minor to Have an Abortion, 131 Harv. L. Rev. 1812 (2018).
  26. Toobin, Jeffrey. "Holding Court". The New Yorker (March 26, 2012). Retrieved July 6, 2018. 
  27. Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  28. Note, Recent Case: D.C. Circuit Applies Less Stringent Test to Compelled Disclosures, 128 Harv. L. Rev. 1526 (2015).
  29. American Meat Institute v. USDA, 760 F.3d 18 (D.C. Cir. 2017) (en banc).
  30. "Recent Cases: D.C. Circuit Reaffirms that Affordable Care Act Falls Outside Scope of the Origination Clause by Denying Petition for En Banc Review" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129. 2016. 
  31. Sissel v. United States Department of Health & Human Services, 799 F.3d 1035 (D.C. Cir. 2015).
  32. "The Supreme Court, 2013 Term — Leading Cases" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 128: 351–360. 2014. 
  33. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
  34. "The Supreme Court, 2013 Term — Leading Cases" (PDF). Harvard Law Review. Harvard University. 128: 361–370. 2014. 
  35. Coal. for Responsible Regulation, Inc. v. EPA, 696 No. 09-1322, 2012 WL 6621785 (D.C. Cir. Dec 20, 2012).
  36. "The Supreme Court, 2014 Term — Leading Cases" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 311–320. 2015. 
  37. 748 F.3d 1222 (D.C. Cir. 2014) (per curiam).
  38. "Recent Cases: D.C. Circuit Limits Prospects for Challenging Dodd-Frank's Orderly Liquidation Authority" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 835. 2016. 
  39. State National Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015).
  40. Cowley, Stacy (October 12, 2016). "Court Upholds Consumer Agency, Minus Its Leader’s Job Security". The New York Times. New York City: New York Times Company. p. B2. Retrieved October 18, 2016. 
  41. PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2017)).
  42. PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc).
  43. Weiss, Debra Cassens (January 31, 2018). "Full DC Circuit upholds structure of Consumer Financial Protection Bureau". ABA Journal. Retrieved July 6, 2018. 
  44. "Recent Cases: D.C. Circuit Reinterprets Military Commissions Act of 2006 to Allow Retroactive Prosecution of Conspiracy to Commit War Crimes" (PDF). Harvard Law Review. 128: 2040. 2015. 
  45. Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).
  46. Marimow, Ann (October 20, 2016). "Appeals court upholds conspiracy conviction of Guantanamo Bay detainee". The Washington Post. Washingtn DC: Nash Holdings LLC. Retrieved October 24, 2016. 
  47. Al Bahlul v. United States, 804 F.3d 757 (D.C. Cir. 2016).
  48. "Recent Cases: D.C. Circuit Holds that U.S. Citizen Detained and Interrogated Abroad Cannot Hold FBI Agents Individually Liable for Violations of His Constitutional Rights" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 1795. 2016. 
  49. Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015).
  50. 50.0 50.1 Kranish, Michael; Marimow, Ann E. (June 29, 2018). "Top Supreme Court prospect has argued presidents should not be distracted by investigations and lawsuits". Washington Post. Washington, DC: Nash Holdings LLC. ISSN 0190-8286. Retrieved June 30, 2018. 
  51. 51.0 51.1 Kavanaugh, Brett M. (2016). "Fixing Statutory Interpretation" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 2118. 
  52. 52.0 52.1 52.2 "The Next Nominee to the Supreme Court". Empirical SCOTUS. December 7, 2017. Retrieved July 7, 2018. 
  53. Roeder, Oliver (July 6, 2018). "How Four Potential Nominees Would Change The Supreme Court". FiveThirtyEight. Retrieved July 7, 2018. 
  54. Cope, Kevin (July 7, 2018). "Exactly how conservative are the judges on Trump’s short list for the Supreme Court? Take a look at this one chart.". The Washington Post. Retrieved July 9, 2018. 
  55. Shear, Michael D.; Haberman, Maggie (July 3, 2018). "Trump Interviews 4 Supreme Court Prospects in Rush to Name Replacement". The New York Times. Retrieved July 6, 2018. 

External links

Political offices
Preceded by
Harriet Miers
White House Staff Secretary
2003–2006
Succeeded by
Raul F. Yanes
Legal offices
Preceded by
Laurence Silberman
Judge of the United States Court of Appeals for the District of Columbia Circuit
2006–present
Incumbent
Preceded by
Anthony Kennedy
Associate Justice of the Supreme Court of the United States
Taking office TBD
Nominee