Brett Kavanaugh is nominated to the Supreme Court. Credit: Diego M. Radzinschi / NLJ

Judge Brett Kavanaugh, a stalwart conservative with deep Washington roots who has questioned the power of federal agencies and ruled in support of broader gun rights, was nominated Monday to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court.

In picking the 53-year-old Kavanaugh, President Donald Trump opted for a hard-to-defeat nominee whose Ivy League credentials are similar to those of Neil Gorsuch, the president’s first Supreme Court nominee. Both are white males who attended Georgetown Preparatory School and clerked for Kennedy in 1993 and 1994. Kavanaugh got his law degree from Yale, while Gorsuch got his from Harvard.

Trump announced his selection of Kavanaugh to the American public at an event at the White House. The White House kept the news of Kavanaugh’s pick secret until the moment of the announcement. Kavanaugh appeared with his wife, Ashley, and two daughters. Trump praised Kavanaugh as a “thought leader among his peers.”

Kavanaugh told the assembled audience: “Mr. President, thank you. I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No president has consulted more widely … to seek input about a Supreme Court nomination. Mr. President, I am grateful to you and I am humbled by your confidence in me.” He added: Judges must “interpret the law, not make the law.”

Kavanaugh will begin meeting with senators Tuesday to begin the confirmation process. “I will tell each senator that I revere the Constitution,” he said. If confirmed, Kavanaugh added, “I will keep an open mind in every case.”

Kavanaugh would join on the Supreme Court three other justices who formerly served on the D.C. Circuit: Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg and Clarence Thomas. The late Justice Antonin Scalia also served on the D.C. Circuit, often referred to as the second most important court in the country for its docket brimming with federal agency cases.

After working in private practice at Kirkland & Ellis in the late 1990s, Kavanaugh served as an associate counsel and staff secretary for the George W. Bush White House. Kavanaugh was a lead author on the Starr Report, documenting Bill Clinton’s affair with Monica Lewinsky. Bush named Kavanaugh to the D.C. Circuit in 2006.

Kavanaugh’s prospects for being nominated had dimmed in recent days, in part because his extensive experience means he has a long paper trail that will take time for senators to gather and study, slowing down what Trump wants to be a speedy confirmation process. Mulling his decision, Trump was also reportedly troubled by Kavanaugh’s ties to the Bush family.

While a committed conservative, Kavanaugh has often spoken of the need for impartiality in judging, and he has collegial relationships with liberal and conservative judges alike.

“Some may conceive of judging more as a partisan or policymaking exercise in which judges should or necessarily must bring their policy and philosophical predilections to bear on the text at hand,” Kavanaugh wrote in a 2016 Harvard Law Review article. “I disagree with that vision of the federal judge in our constitutional system. The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be.”

Kavanaugh, speaking publicly in 2015, reflected on how his opinions about the law had changed over time. He said that as a law student he strongly disagreed with the Supreme Court’s 1989 decision in Texas v. Johnson, which protected flag burning under the First Amendment. Over time, Kavanaugh recalled, he said he grew “more protective” of the First Amendment and now believed the majority in that case was correct.

Kavanaugh is a longtime “feeder judge” who has sent dozens of his law clerks on to work for Supreme Court justices, both liberal and conservative. In that capacity, Kavanaugh made efforts to diversify the pool of potential Supreme Court clerks by speaking to black law student groups.

“A big part of it is demystifying the process, having a conversation about how it works, and encouraging the students to apply,” Kavanaugh said in an interview with The National Law Journal last year. He has delivered 10 of his own minority clerks to the high court during his tenure on the D.C. Circuit.

Justice Samuel Alito Jr.’s son Philip clerked for Kavanaugh before taking an associate position at Gibson, Dunn & Crutcher. The younger Alito left the firm in 2015 for a post in the U.S. Senate.

Because he sits on the D.C. Circuit, Kavanaugh’s paper trail is thick with decisions about federal regulatory agencies and the administrative state. He has often written rulings or dissents reining in the power of regulatory agencies, and the Supreme Court often heeds his opinions.

“When Kavanaugh speaks, the Supreme Court listens,” wrote Aaron Nielson, a professor at J. Reuben Clark Law School at Brigham Young University, along with former Kavanaugh clerk Jennifer Mascott on a blog about the D.C. Circuit. “Judge Kavanaugh has authored close to 300 opinions. In at least 11 cases, the Supreme Court ultimately adopted positions that Judge Kavanaugh advanced, and in at least five of those cases explicitly cited him.”

According to his 2017 financial disclosure form, Harvard Law School paid Kavanaugh $27,490 for teaching a course that was titled, according to the school’s catalog, “The Supreme Court Since 2005.”

Democratic senators are likely to confront Kavanaugh’s views of executive power. Special Counsel Robert Mueller’s investigation of Russia’s interference of the 2016 presidential election could kick up legal challenges that reaches the Supreme Court.

In a 2009 Minnesota Law Review article, Kavanaugh wrote, “Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” He added that the indictment and trial of a president “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”

Though Kavanaugh is viewed as part of the Washington establishment, some of whose members drift to the left over time, his fans say that won’t happen to him. “I would bet the farm that Judge Kavanaugh would not go wobbly” on key conservative issues, said Justin Walker, a University of Louisville law professor who clerked for both Kavanaugh and Kennedy. “He doesn’t have a wobbly bone in his body.”

Kavanaugh is a former clerk to the disgraced ex-judge Alex Kozinski, who resigned last year from the Ninth Circuit amid accusations that included inappropriate behavior toward law clerks. Kozinski, testifying in 2006 at Kavanaugh’s confirmation hearing to the D.C. Circuit, praised his former clerk as a “positive delight” in his office.

“You have to look at a case from different perspectives, not just one, and not early in the case take one perspective  and then stick with it,” Kozinski said then. “Brett was very good in changing perspectives. Sometimes I’d take one position and he’d take the opposite, and sometimes we’d switch places. He was very good and very flexible that way.”

 

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