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As of Friday afternoon, Brett Kavanaugh, a judge on the DC Circuit Court of Appeals, has the votes in the US Senate to replace Anthony Kennedy on the Supreme Court.
The confirmation was supposed to be a straightforward affair. Kavanaugh, 53, is a candidate straight out of Supreme Court central casting: He went to Yale and Yale Law; he clerked for two federal appellate judges; worked in the solicitor general’s office in the George H.W. Bush administration; and then clerked for Kennedy on the Supreme Court.
But on September 14, the whole story changed. The New Yorker’s Jane Mayer and Ronan Farrow reported that Senate Democrats had received an anonymous allegation from a woman claiming that Kavanaugh, as a high school student, “held her down, and … attempted to force himself on her.” Two days later, the woman, Christine Blasey Ford, came forward and confirmed the allegation on the record. Days later, Deborah Ramirez, a Yale classmate of Kavanaugh’s, alleged that he exposed himself to her; shortly after, Julie Swetnick said she knew Kavanaugh when they were high school students and witnessed him sexually harass girls.
Kavanaugh strenuously denied all the allegations, and the confirmation battle immediately stopped being about his jurisprudential views and started to be about whether to believe him, or believe his accusers. The Senate Judiciary Committee, in an eerie echo of the 1991 hearings where Anita Hill accused now-Justice Clarence Thomas of sexual harassment, asked both Blasey Ford and Kavanaugh to testify. Several Republican senators, including Lisa Murkowski, Susan Collins, and Jeff Flake, were openly undecided in the wake of Blasey Ford and Kavanaugh’s testimony.
But ultimately, Kavanaugh won the support of Flake and Collins, all but ensuring he will be confirmed anyway.
With him set to be on the Court, it’s worth considering what Kavanaugh’s track record implies he will do as a justice. He will almost certainly fall to the right of Anthony Kennedy, and enable a rightward shift in the Court’s jurisprudence for years or decades to come. He will shift the court rightward on abortion, possibly setting up the overturning of Roe v. Wade. He could end affirmative action and halt the Court’s efforts, under Kennedy, to gradually rein in capital punishment.
Worse still for liberals, he has suggested enhancing the president’s power to block criminal and civil actions against him, a potentially worrisome position when the president who nominated him is under investigation and facing multiple lawsuits.
Kavanaugh’s career before the Supreme Court
Born and raised in suburban Maryland, the son of two lawyers (his mother a trial judge), Kavanaugh was educated at the tony all-boys Catholic high school Georgetown Prep, where he was two years ahead of Supreme Court Justice Neil Gorsuch; Blasey Ford’s accusations stem from his time at Prep.
Kavanaugh’s first legal writings came in a 1989 note for the Yale Law Review, where he also served as notes editor. The piece concerned the 1986 Supreme Court case Batson v. Kentucky, a landmark ruling that barred prosecutors from excluding jurors from cases based solely on their race.
In between his appellate clerkships and his time with Kennedy, Kavanaugh worked in the solicitor general’s office under George H.W. Bush. The solicitor general is a Justice Department official who represents the federal government before the Supreme Court; the office offers some of the most interesting and high-stakes legal work in Washington, and junior attorney positions there are highly coveted. The SG under George W. Bush was Kenneth Starr, who took a shine to Kavanaugh and hired him to join the independent counsel’s office in 1994.
Once on Starr’s team, Kavanaugh was tasked with investigating the death of deputy White House counsel Vince Foster in 1994, which many conservatives believed (absurdly) to be suspicious and a murder rather than a suicide. Kavanaugh and the rest of Starr’s investigators concluded that it was indeed a suicide, but only after an investigation that critics alleged was unduly credulous toward conspiracy theories that Foster was murdered and having an affair with Hillary Clinton (Kavanaugh and his investigators actively pursued the latter thread).
A year following his report’s release, Kavanaugh argued the only Supreme Court case of his career, claiming that he could compel Foster’s lawyer to turn over notes on their conversation shortly before Foster’s death. (The Court rejected that argument, 6-3, with conservative Chief Justice William Rehnquist writing that attorney-client privilege precluded the notes’ release, and Kavanaugh’s former boss Kennedy joining the majority.)
Eventually, Kavanaugh, and the rest of Starr’s team, moved on from the substance of the Whitewater real estate deal to the matter of Clinton’s affair with Monica Lewinsky. In his history of the investigation, The Death of American Virtue: Clinton vs. Starr, Duquesne University’s Ken Gormley notes that Kavanaugh, “considered one of Starr’s intellectual heavy-lifters, pushed hardest to confront Clinton with some of the dirtiest facts linked to his sexual indiscretions with Lewinsky.” Gormley continues:
In a memo to “Judge Starr” (with a copy to “All Attorneys”), dated just two days before the grand jury showdown, Kavanaugh disclosed a stark division within [the Office of the Independent Counsel] over how to handle this slippery president. He wrote:
After reflecting this evening, I am strongly opposed to giving the President any “break” … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you. I have tried hard to bend over backwards and to be fair to him. … In the end, I am convinced that there really are [no reasonable defenses]. The idea of going easy on him at the questioning is thus abhorrent to me…
[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.
Kavanaugh listed ten sample questions, however explicit and unsavory, that he believed Starr and his questioners should ask. They included the following:
…If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?
If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?
If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?
Starr’s team didn’t ask those precise questions, but did ask similar ones (such as “If Monica Lewinsky says that you used a cigar as a sexual aid with her in the Oval Office area, would she be lying?”). Gormley writes that after Clinton’s testimony, “Brett Kavanaugh patted [Solomon] Wisenberg” — one of the Starr attorneys who questioned the president — “on the back and quietly congratulated him for asking the ‘sex questions.’” (That said, according to Bob Woodward’s book Shadow, Kavanaugh objected to the prurient tone of the Starr report, arguing that the level of sexual detail was not needed.)
After working with Starr, Kavanaugh continued to compile a legal record that would lead to Senator Dick Durbin’s description of him as “the Zelig or Forrest Gump of Republican politics. You show up at every scene of the crime … whether it is Elián González or the Starr Report, you are there.”
And indeed, Kavanaugh would represent the 6-year-old González pro bono in an attempt to keep him from being deported to Cuba in 2000. (González was eventually returned to his father in Cuba, where he still lives today.) Kavanaugh also worked on Bush’s legal team during the 2000 Florida recount, which resulted in Bush winning a party-line Supreme Court vote to install him in office.
Once Bush was president, Kavanaugh worked in his White House counsel’s office from 2001 to 2003, and then from 2003 to 2006 as his staff secretary, the person charged with providing briefing materials and other documents to the president. His time in the White House would complicate his confirmation process, both because Democrats demanded thousands of documents from his tenure there that the Republican Senate majority did not want to spend time producing, and because he came across stolen emails by Democratic staffers on judicial nominations, emails that Senate Republican aides then used to plan their own strategy. Kavanaugh’s testimony on the latter matter would lead some Democrats to accuse him of perjury.
In 2003, Bush appointed Kavanaugh to his post on the DC Circuit, but he languished in the Senate until 2006, in the aftermath of the Gang of 14 deal, to clear Bush appellate court appointments.
In an excellent profile of Kavanaugh for Ozy, Daniel Malloy explains that Kavanaugh’s history of partisan legal service delayed his confirmation:
Given Kavanaugh’s GOP track record and lack of judicial experience, Sen. Chuck Schumer, D-N.Y., called the nomination “not just a drop of salt in the partisan wounds; it is the whole shaker.” Kavanaugh, calm and poised during his hearings, dodged questions about White House debates on judges and torture. He said he would follow Supreme Court precedent on abortion rights but wouldn’t give a personal view on the Roe v. Wade decision.
While he waited for his own confirmation, Kavanaugh advised the president on replacing retiring Associate Justice Sandra Day O’Connor and deceased Chief Justice William Rehnquist in 2005. In his memoir Decision Points, Bush credits Kavanaugh with helping him decide to nominate John Roberts to replace Rehnquist: “Brett told me that [appellate judge J. Michael] Luttig, [Samuel] Alito, and Roberts would all be solid justices. The tiebreaker question, he suggested, was which man would be the most effective leader on the Court — the most capable of convincing his colleagues through persuasion and strategic thinking. I believed Roberts would be a natural leader.”
Why liberals fear Kavanaugh on the Court
Before the sexual assault controversy led most conservatives to rally to his defense, Kavanaugh actually provoked considerable skepticism in some right-wing corners. Some interpreted a 2011 dissent of his as expressing a belief that Obamacare’s individual mandate is constitutional; others called him soft on religious liberty.
But the main opponents of Kavanaugh have, understandably, been on the left.
With Kennedy gone and Kavanaugh in his place, the Court’s decisions on issues where Kennedy has been a down-the-line conservative — like campaign finance and corruption, most business regulation and voting cases, gun rights, religious liberty, etc. — likely won’t change. There’s already a 5-4 conservative majority on those, so conservative rulings like the ones Kennedy wrote or joined in DC v. Heller, Citizens United, or Hobby Lobby will continue apace.
What will change are rulings on issues where Kennedy has helped maintain a shaky 5-4 center-left consensus and where Kavanaugh absolutely will not. Because of the Court’s longstanding principle of stare decisis, or obeying past precedent barring a compelling reason not to do so, some liberal Court achievements are likely to stay. But a Court without Kennedy and with Kavanaugh is substantially more likely to:
- Overturn Roe v. Wade and allow states (and maybe the federal government too) to ban most or all abortions.
- Reject challenges to capital punishment and solitary confinement.
- Rule in favor of religious challenges to anti-discrimination law, and perhaps, in an extreme case, reverse some past Supreme Court rulings on gay rights.
- Bar government actors from engaging in explicit race-based affirmative action.
And there are likely to be more aftershocks that are hard to anticipate this far in advance.
Beyond changes that any conservative replacement to Kennedy would make, Kavanaugh’s specific record raises a number of points of concern for liberals. There is, for one thing, his suggestion in the Obamacare case Seven-Sky v. Holder that a future president could choose to nullify Obamacare by just not enforcing it, writing, “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
His record on economic issues is similarly hostile to regulation. In October 2016, he dealt a blow to the Consumer Financial Protection Bureau, writing an opinion arguing that its structure, with a single director, is unconstitutional, and more broadly deemed independent regulatory agencies like the CFPB a “threat to individual liberty.” In a 2015 dissent, he argued that net neutrality regulations are an unconstitutional impingement on the free speech rights of cable companies.
Kavanaugh has also ruled in favor of the National Security Agency’s expansive call record surveillance operation, arguing that collecting these records did not constitute a “search,” and that even if it did, the government can take such records if it has a “special need” to prevent terrorism, even if this burdens the constitutional rights of those searched. That’s a truly expansive rationale that makes even many conservatives uneasy. He also worked to limit challenges to detention for terror suspects.
His views on executive power may continue to worry liberals as the Robert Mueller investigation unfolds. In a 1998 Georgetown Law Journal article titled, “The President and the Independent Counsel,” written shortly after his service to Starr, Kavanaugh wrote that the independent counsel should be appointed by the president and approved by Congress, not by a panel of judges, to shore up the position’s constitutionality. This would have somewhat weakened the position’s independence relative to the executive; the independent counsel statute has since lapsed and the position no longer exists.
Further, he wrote that, “Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate” and that Congress should bar the President from claiming executive privilege and refusing to divulge information in criminal cases, except as a matter of national security.
“The proposals would enhance the public credibility of special counsel investigations, reduce the inherent tension between the President and the special counsel, and better enable a special counsel to conduct a thorough and effective law enforcement investigation of executive branch wrongdoing,” Kavanaugh concluded.
In 2009, he went further and argued that the president should be exempted from both criminal prosecution and civil suits while in office, arguing that the latter should be delayed until he leaves the presidency:
A … possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. … The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.
If Trump winds up in criminal hot water due to the Mueller investigation, and the matter reaches the Supreme Court, remember: Kavanaugh is not under any obligation to recuse himself.
