Supreme Court nominee Judge Brett Kavanaugh, left, walks with White House Counsel Don McGahn on Wednesday as they meet senators. Credit: Diego M. Radzinschi / ALM

Federal appeals judge Brett Kavanaugh would face recusal issues in at least several controversial court cases involving abortion, religious discrimination, the environment and military justice if he’s confirmed to the U.S. Supreme Court.

Recusals pose a potential problem for new justices, especially when they are elevated after spending many years on a federal trial or appellate bench or played a role in executive policy-making decisions.

Sonia Sotomayor has recused in certain matters that arose from the U.S. Court of Appeals for the Second Circuit, and Elena Kagan took no part in matters in which she participated as the U.S. solicitor general. More recently, a possible Neil Gorsuch recusal complicated the court’s review of administrative law judges.

Sometimes a conflict is discovered years after the justice’s involvement. Justice Anthony Kennedy last term revealed that he overlooked a conflict that involved a case he handled as an appellate judge more than three decades ago. Justices step aside for other reasons, including financial conflicts. And even then, sometimes the conflict is discovered after the fact.

Kavanaugh, who has served 12 years on the U.S. Court of Appeals for the D.C. Circuit, has sat on contentious cases with national implications that are likely to move to the Supreme Court in the short term. Here is a look at some of those cases that could require him to sit out high court deliberations.

Abortion access for immigrant teenagers in U.S. custody.

Abortion and immigration intersect in the case Garza v. Azar. The Trump administration’s Justice Department is appealing a district court’s preliminary injunction and class certification of unaccompanied immigrant minors seeking abortions. The administration contends it has no obligation to facilitate abortion for those minors being detained by the government.

Kavanaugh was on a three-judge panel and later en banc ruling that rejected the government’s legal objections to allowing the initial plaintiff, Jane Doe, to go forward with her abortion. Kavanaugh dissented from those rulings, writing that the en banc majority decision was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”

Judge Patricia Millett countered: “Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—’refuses to leave’ its custody. That sure does not sound like ‘on demand’ to me.”

Christmas ads and allegations of religious discrimination.

A three-judge panel that included Kavanaugh heard arguments in March in the case Archdiocese of Washington v. Washington Metropolitan Area Transit Authority. The archdiocese, represented by Kirkland & Ellis partner Paul Clement, argued the Washington public transportation system violated its First Amendment free speech and free exercise rights by its refusal to allow the archdiocese to buy and run a Christmas ad on public buses.

The ad at issue was to encourage charitable giving during the Advent season. A district court judge refused to grant a preliminary injunction requiring the transit authority to run the ad.

Munger, Tolles & Olson partner Donald Verrilli Jr., representing the transit authority, countered that the authority’s rule barring messages that “promote or oppose” any religion was not illegal viewpoint discrimination. During arguments, Kavanaugh appeared unsympathetic to Verrilli’s arguments.

On the environment: Clean Power Plan.

Kavanaugh sat on the D.C. Circuit panel that heard arguments in September 2016 on the legality of the Obama administration’s “Clean Power Plan.” The challenge to the plan, which aimed to cut plant-warming carbon dioxide emissions from power plants, was brought by 28 states and numerous companies and industries. The Supreme Court, in a 5-4 order, temporarily blocked the plan from taking effect while the D.C. Circuit heard arguments.

During the arguments, Kavanaugh lauded the policy but said, “I understand the international impact and the problem of the commons. The pope’s involved. And I understand the frustration with Congress. If Congress does this, they can account for the people who lose their jobs. If we do this, we can’t.”

After the presidential election, the Trump administration’s Environmental Protection Agency moved to have the case held in abeyance while it worked to revise the plan. The D.C. Circuit has been approving 60-day abeyances for nearly two years and its most recent order in June revealed some of the judges’ growing frustration with EPA’s regulatory inaction.

Judges David Tatel, Millett and Robert Wilkins warned that the June stay order may be the last one.

Tatel, joined by Millett, said that “given that EPA has yet to present any concrete alternative for complying with Massachusetts v. EPA, the Supreme Court is entitled to decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.

Wilkins was more explicit, saying the June abeyance was the last one he would approved. “In this posture, our abeyance does not serve to maintain the status quo while the court decides the disposition of the petitions: instead, the result is the maintenance of the status quo while EPA decides the disposition of the rule that the petitions challenge. The upshot is that the petitioners and EPA have hijacked the court’s equitable power for their own purposes.”

The case, West Virginia v. EPA, could be dismissed and remanded to the EPA.

The military justice and Gitmo docket is deep.

The case of Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing and other terrorist attacks, has a long, complicated history in the military and D.C. federal court systems.

Kavanaugh dissented in 2014 from a three-judge panel’s decision granting a stay of military commission review proceedings pending the court’s resolution of his constitutional challenges.

The case has taken many twists and turns since then, but is still ongoing. Some military justice experts say it is likely to reach the Supreme Court at some point. Kavanaugh also has been involved in a number of Guantanamo detainee habeas cases, which could present recusal questions for him if they reach the Supreme Court.


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