Supreme Court nominee Judge Brett Kavanaugh walks in a hallway of the Russell Senate Office Building in July. (Photo: Diego M. Radzinschi / ALM)

On his first day on the bench as a U.S. Supreme Court justice, Brett Kavanaugh on Tuesday was not the most frequent questioner but showed he was fully prepared for the vexing ambiguities of a federal sentencing law—despite little time to get up to speed.

With his wife, two daughters and retired Justice Anthony Kennedy watching from special seats for guests of the justices, Kavanaugh, who was confirmed 50-48 by the Senate on Oct. 6 following a bruising confirmation process, appeared relaxed and engaged before and during two hours of oral arguments. Mike Davis, chief counsel to Senate Judiciary Chairman Chuck Grassley, who led the confirmation push, attended the argument.

Sitting at the far right corner of the bench, Kavanaugh chatted and laughed with his seatmate, Obama appointee Elena Kagan, before arguments began on what Justice Samuel Alito Jr. later would call a statute that “a majority of the court really hates,” the Armed Career Criminal Act. The night before, speaking at the White House, Kavanaugh said he would join the bench with “no bitterness” about confirmation proceedings at which his credibility and temperament were questioned.

One striking difference for Kavanaugh, who was accustomed to participating on three-judge panels at the U.S. Court of Appeals for the D.C. Circuit, was sitting with eight justices on a slightly curved bench. He often leaned forward, with neck stretched, in order to look at justices at the other end—Neil Gorsuch, Sonia Sotomayor and Stephen Breyer.

Despite the intense emotions surrounding Kavanaugh’s nomination and confirmation hearings, at which Kavanaugh was accused of sexual misconduct in his high school and college years—he denied the claims—there were no attempts to protest inside the courtroom.

Outside, a small group of about 20 protesters appeared in front of the court building early in the morning, and a smaller group gathered in the rear by the underground driveway used by the justices to enter the building. The protests were mostly peaceful, with no arrests made, a police officer outside the court said. Thousands of protesters chanted outside the Supreme Court last week against Kavanaugh’s nomination.

A long line of visitors snaked around the corner of the court building before the start of arguments, indicating less interest perhaps in the cases being argued than seeing Kavanaugh at work as a justice. Ruth Gronde and her 13-year-old daughter flew in from Atlanta to see Justice Ruth Bader Ginsburg and Kavanaugh’s debut.

The new justice’s debut was in marked contrast to Justice Neil Gorsuch’s first argument day. Gorsuch, who like Kavanaugh was nominated by President Donald Trump and attended the same suburban Maryland high school, jumped right into questioning in his first case.

Gorsuch’s style was deferential at times to the advocates, apologizing at one point for “taking up so much time.” But he also showed a snippish impatience when lawyers failed instantly to respond to what he was asking. “If you would just answer my question, I would be grateful,” he told one.

Gorsuch was both a frequent and persistent questioner, engaging in one case in an unusually lengthy discussion—for the Supreme Court—about standards of review and the need to follow the “plain language” of a federal statute. Since then, he has become one of the less frequent questioners on the “hot” bench with a calm and friendly style.

Kavanaugh, on the other hand, asked eight questions in two hours in a businesslike, straight-forward manner, pressing the advocates at times for more complete answers to his questions.

Kavanaugh’s first case was Stokeling v. United States, in which a criminal defendant is arguing that his 1997 robbery conviction under Florida law is not a “violent felony” under the federal Armed Career Criminal Act.

The case involves ACCA’s definition of violent felony, which includes the “use, attempted use or threatened use of physical force.” Probing the meaning of physical force drew a number of justices into a series of hypotheticals involving purse snatching, pinching and pulling a dollar bill from the hands of the owner—the latter actually tested in his chambers by Chief Justice John Roberts Jr.

The second argument focused on two consolidated cases: United States v. Stitt and United States v. Sims. In those cases, the justices struggled with whether burglary of a vehicle or other mobile structure qualifies as a violent felony under ACCA if the state’s definition of burglary requires that the vehicle be designed or used or overnight accommodation.

Alito’s frustration with the federal statute boiled over in the second argument when he said, “We have made a royal mess” of the law.

Read more:

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Kavanaugh’s Supreme Court Clerk Hires in Perspective

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Brett Kavanaugh, Neutrality Questioned, Ascends to Supreme Court

 

 


Ellis Kim contributed reporting.