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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 byGeorge W. Bush
Preceded byLaurence Silberman
White House Staff Secretary
In office
June 6, 2003 – May 30, 2006
PresidentGeorge W. Bush
Preceded byHarriet Miers
Succeeded byRaul F. Yanes
Personal details
BornBrett Michael Kavanaugh
February 12, 1965 (age 53)
Washington, D.C., U.S.
Political partyRepublican
Spouse(s)Ashley Estes (m. 2004)
EducationYale University (BA, JD)
Brett Michael Kavanaugh (born February 12, 1965) is a nominee to become an Associate Justice for the United States Supreme Court. He currently serves as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He was White House Staff Secretary during the Presidency of George W. Bush.
A protégé of Ken 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 Vince 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]
Kavanaugh was nominated by President Donald Trump on July 9, 2018, to become an Associate Justice of the Supreme Court of the United States, following the vacancy created by the pending retirement of Associate Justice Anthony Kennedy.[6][7]

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.[8][9] His mother served as a Maryland state Circuit Court Judge from 1995 to 2001.[10] 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, Margaret and Liza.
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.[11] Kavanaugh then earned a one-year fellowship with the Solicitor General of the United States, Ken Starr.[11] Kavanaugh next clerked for Supreme Court Justice Anthony Kennedy.[11]

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 Clintonand Vincent Foster investigation.[12] There, Kavanaugh argued on broad grounds for the impeachment of Bill Clinton.[13] Kavanaugh was later a partner at the law firm of Kirkland & Ellis.[11] 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.[14] The Supreme Court rejected Kavanaugh's arguments by a vote of 6–3.[15]

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.[11] Starting in 2003, he served as Assistant to the President and White House Staff Secretary.[11] 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.[16] 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."[17]
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[18][19][20] 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.[21] 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. Durbin and Leahy accused Kavanaugh of lying to them in his confirmation hearing when he denied being involved in formulating the Bush administration's detention and interrogation policies in the aftermath of the September 11, 2001, terrorist attacks. Durbin said, "It appears that you misled me, the Senate Judiciary Committee and the nation." A spokesperson for Kavanaugh denied the accusations.[22]

Opinions

Judge Kavanaugh in 2016

Abortion

Kavanugh has stated that he considers Roe v. Wade binding under the principle of stare decisis and would seek to uphold it,[23]but has also ruled in favor of some restrictions for abortion.[24][25][26]
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."[23] During the hearing, he stated that a right to an abortion has been found "many times", citing Planned Parenthood v. Casey.[23]
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.[26] Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting.[24] The D.C. Circuit's opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).[25]

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.[27][28] 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.[29][30]

Economics and environmental regulation

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.[31][32]
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).[33][34] 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).[35][36] 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).[37][38]
In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design.[39][40] 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.[41][42] In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.[43][44]

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”.[45][46] 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.[47][48]
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.[49][50]

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.”[51] This article garnered attention in 2018 when Kavanaugh was 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.[51]
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.[52] 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.[52]

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 (out of 11) most conservative judge on the court.[53] 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."[53] 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."[53]
FiveThirtyEight used Judicial Common Space scores, which are not based on 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.[54] 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.[55]

Supreme Court nomination

Main article: Brett Kavanaugh Supreme Court nomination
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. On July 9, President Trump nominated Kavanaugh for a seat on the Supreme Court.[56]

See also

References

  1. Jump up^ 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. Jump up^ 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. Jump up^ 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. Jump up^ 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. Jump up^ Kellman, Laurie (May 23, 2006). "Kavanaugh Confirmed U.S. Appellate Judge". Washington Post. Washington DC: Nash Holdings LLC. Retrieved November 8, 2011.
  6. Jump up^ 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. Jump up^ Landler, Mark; Haberman, Maggie (July 9, 2018). "Brett Kavanaugh Is Trump's Pick for Supreme Court". The New York Times. Retrieved July 9, 2018.
  8. Jump up^ "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.
  9. Jump up^ "The Social List of Washington, D.C. and Social Precedence in Washington". J.S. Murray. July 10, 1990 – via Google Books.
  10. Jump up^ Martha G. Kavanaugh, Maryland Circuit Court Judge, maryland.gov. Retrieved July 2, 2018.
  11. ^ Jump up to:a b c d e f Roberts, Edith (June 28, 2018). "Potential nominee profile: Brett Kavanaugh". SCOTUSblog. Retrieved July 6, 2018.
  12. Jump up^ "Judicial Nominations – Judge Brett M. Kavanaugh".
  13. Jump up^ 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.
  14. Jump up^ Kranish, Michael; Marimow, Michael (July 6, 2018). "Kavanaugh's unorthodox path to Trump's Supreme Court shortlist". The Washington Post. Retrieved July 9, 2018.
  15. Jump up^ "Swidler & Berlin v. United States". Oyez Project. Retrieved July 9, 2018.
  16. Jump up^ "Presidential Nomination 840, 108th United States Congress". United States Congress. July 25, 2013. Retrieved July 6, 2018.
  17. Jump up^ "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.
  18. Jump up^ "Presidential Nomination 1179, 109th United States Congress". United States Congress. January 25, 2006. Retrieved July 6, 2018.
  19. Jump up^ "U.S. Senate: U.S. Senate Roll Call Votes 109th Congress – 2nd Session". Washington DC: U.S. Senate. May 26, 2006.
  20. Jump up^ "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.
  21. Jump up^ Associated Press, June 1, 2006, "President Celebrates Judge's Swearing-In" by Deb Riechmann
  22. Jump up^ 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.
  23. ^ Jump up to:a b c "5/9/2006 Schumer: "Do you consider Roe v. Wade to be an abomination?"". CSPAN. July 5, 2018. Retrieved July 8, 2018.
  24. ^ Jump up to:a b Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam).
  25. ^ Jump up to:a b "Azar v. Garza". SCOTUSblog. Retrieved July 6, 2018.
  26. ^ Jump up to:a b 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).
  27. Jump up^ Toobin, Jeffrey. "Holding Court". The New Yorker (March 26, 2012). Retrieved July 6, 2018.
  28. Jump up^ Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  29. Jump up^ "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.
  30. Jump up^ Sissel v. United States Department of Health & Human Services, 799 F.3d 1035(D.C. Cir. 2015).
  31. Jump up^ Note, Recent Case: D.C. Circuit Applies Less Stringent Test to Compelled Disclosures, 128 Harv. L. Rev. 1526 (2015).
  32. Jump up^ American Meat Institute v. USDA, 760 F.3d 18 (D.C. Cir. 2017) (en banc).
  33. Jump up^ "Clean Air Act – Cost Considerations – EPA v. EME Homer City Generation, L.P."(PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 128: 351–360. 2014.
  34. Jump up^ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
  35. Jump up^ "The Supreme Court, 2013 Term – Leading Cases" (PDF). Harvard Law Review. Harvard University. 128: 361–370. 2014.
  36. Jump up^ Coal. for Responsible Regulation, Inc. v. EPA, 696 No. 09-1322, 2012 WL 6621785 (D.C. Cir. Dec 20, 2012).
  37. Jump up^ "Clean Air Act – Cost-Benefit Analysis – Michigan v. EPA" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 311–320. 2015.
  38. Jump up^ 748 F.3d 1222 (D.C. Cir. 2014) (per curiam).
  39. Jump up^ "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.
  40. Jump up^ State National Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015).
  41. Jump up^ 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.
  42. Jump up^ PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2017)).
  43. Jump up^ PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc).
  44. Jump up^ Weiss, Debra Cassens (January 31, 2018). "Full DC Circuit upholds structure of Consumer Financial Protection Bureau". ABA Journal. Retrieved July 6, 2018.
  45. Jump up^ "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.
  46. Jump up^ Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).
  47. Jump up^ 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.
  48. Jump up^ Al Bahlul v. United States, 804 F.3d 757 (D.C. Cir. 2016).
  49. Jump up^ "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.
  50. Jump up^ Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015).
  51. ^ Jump up to:a b 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.
  52. ^ Jump up to:a b Kavanaugh, Brett M. (2016). "Fixing Statutory Interpretation" (PDF). Harvard Law Review. Cambridge, Massachusetts: Harvard University. 129: 2118.
  53. ^ Jump up to:a b c "The Next Nominee to the Supreme Court". Empirical SCOTUS. December 7, 2017. Retrieved July 7, 2018.
  54. Jump up^ Roeder, Oliver (July 6, 2018). "How Four Potential Nominees Would Change The Supreme Court". FiveThirtyEight. Retrieved July 7, 2018.
  55. Jump up^ 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.
  56. Jump up^ Landler, Mark; Haberman, Maggie (July 9, 2018). "Brett Kavanaugh Is Trump's Pick for Supreme Court". Politics. New York Times. Archived from the original on July 9, 2018. Retrieved July 9, 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