5 things to know about Supreme Court nominee Brett Kavanaugh
By Ann E. Marimow
Jul 10, 2018 | 12:37 PM
Brett Kavanaugh, the federal appellate judge nominated by President Trump on Monday to the Supreme Court, has endorsed robust views of the powers of the president, consistently siding with arguments in favor of broad executive authority during his 12 years on the bench in Washington, D.C.
Here are 5 things to know about Judge Kavanaugh.
He strongly believes in the separation of powers
Kavanaugh is "an unrelenting, unapologetic defender of presidential power" who believes courts can and should actively seek to rein in "large swaths of the current administrative state," said University of Texas law professor Steve Vladeck, who closely follows the U.S. Court of Appeals for the D.C. Circuit.
Kavanaugh's record suggests he would be more to the right than the man he would replace on the Supreme Court, Justice Anthony Kennedy, for whom he clerked. Kavanaugh has staked out conservative positions in cases involving gun rights, abortion and the separation of powers.
Still, in the run-up to his nomination on Monday, Kavanaugh fielded criticism from social conservatives who objected to language he used in connection withthe Affordable Care Act's contraception mandate, as well as his ties to the Bush family and GOP establishment. They also complained about his opinion in a case involving an immigrant teen seeking an abortion.
Washington attorney Helgi Walker, who worked with Kavanaugh in the White House Counsel's Office during the Bush administration, said Monday that her former colleague would be "a fair and open-minded justice who values individual liberty and freedom."
"All Americans should be pleased with this fabulous choice," said Walker, who attended the reception at the White House. "He will respect the Constitution and follow the law wherever it goes instead of making it up himself as he goes along."
A Yale grad
Kavanaugh, 53, was born in Washington and was a standout student and athlete. He attended the same Jesuit high school in Maryland as President Donald Trump's first Supreme Court pick, Neil Gorsuch, another former Kennedy clerk.
His mother, Martha, a public-school teacher in Washington, and his father, Edward, both graduated from law school in 1978 when Kavanaugh was a teenager. His mother was a Montgomery County (Maryland) Circuit Court judge, and his father led a trade association.
After graduating from Yale Law School, Kavanaugh spent his early career steeped in Republican politics and partisan warfare in the nation's capital. As a young lawyer for independent counsel Kenneth Starr, he investigated the death of President Bill Clinton's deputy counsel, Vincent Foster. (Kavanaugh concluded there was no doubt Foster had killed himself.) He laid out the grounds for impeaching Clinton after the president's affair with a White House intern.
He served under George W. Bush
His views of presidential power were shaped in part by the years he worked as a close aide to George W. Bush, including two years in the White House Counsel's Office and three years as staff secretary.
After becoming a judge, Kavanaugh argued that presidents should not be distracted while in office by civil lawsuits or criminal investigations, which "would ill serve the public interest, especially in times of financial or national security crisis," he wrote in a 2009 law review article.
That position could become a focus of his confirmation hearing. Special Counsel Robert Mueller is sparring with Trump's lawyers over his request to interview the president for the investigation into Russian interference in the 2016 presidential election - a legal battle that could end up before the Supreme Court.
Kavanaugh's confirmation to the appellate court was a divisive, drawn-out process. Bush nominated him to the D.C. Circuit in 2003, but Democrats held up the confirmation because of Kavanaugh's work in the White House and on the Starr report. He was eventuallyconfirmed by the Senate in 2006 by a vote of 57 to 36.
On the bench, Kavanaugh is a proponent of "originalism," the practice of interpreting the Constitution and statues by looking at the original meaning and text.
Shannen Coffin, a former deputy assistant attorney general in the Bush administration, called Kavanaugh an "extraordinary choice" and noted his deep understanding of the "proper role of the courts" and separation of powers.
"This is a judge and hopefully soon a justice who recognizes that preserving the proper role of each branch of government is fundamental to protecting individual liberties," Coffin said Monday.
Kavanaugh objected to a 2011 ruling that upheld Washington's ban on semiautomatic rifles. In his lengthy dissent from two other judges nominated by Republican presidents, Kavanaugh pointed to the Supreme Court's landmark decision declaring an individual right to gun ownership apart from military service.
"Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right," Kavanaugh wrote.
In other instances, Kavanaugh's approach has been less predictable. The judge upset environmentalists, for instance, with rulings against Obama-era regulations of toxic air pollution from power plants and efforts to cut emissions of heat-trapping gases. But in 2010, he upheld the Environmental Protection Agency's oversight of a California rule limiting emissions from refrigeration units in trucks challenged by the trucking industry.
"He seems to look for the best tool in a situation, which is not necessarily the trademark of a devout originalist," said legal scholar Adam Feldman, the founder of the Empirical SCOTUS blog. "While those are his primary tools, those aren't always his go to."
In a recent high-profile case involving abortion, Kavanaugh was again in the minority among his D.C. Circuit colleagues. He sided with the Trump administration in its refusal to "facilitate" abortion services for a pregnant teen in immigration custody. Kavanaugh said the majority "badly erred" and had created a new right for undocumented immigrant minors in custody to "immediate abortion on demand."
Kavanaugh's views on executive power are detailed at length in a 2016 opinion finding the organization of the Consumer Financial Protection Bureau unconstitutional. The structure, he wrote, gives too much executive control to a "single, unaccountable, unchecked Director."
"Other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power," he wrote in a 101-page opinion. "That is not an overstatement."
Kavanaugh's decision for a three-judge panel of the court was overturned in January by the full D.C. Circuit.
He likes baseball
Off the bench, Kavanaugh is known as affable and outgoing, with friendships that cross party lines. He watches baseball games at Nationals Park with U.S. District Judge James Boasberg, an Obama nominee who was Kavanaugh's housemate during law school.
Gary Feinerman, an Obama nominee on the federal bench in Chicago, got to know Kavanaugh when they were law clerks for Kennedy, the Supreme Court justice, in 1993.
"He's not one to allow disagreements over legal issues to interfere with or impede personal friendships," Feinerman said.
Kavanaugh is an observant Catholic, regularly attending church at the Shrine of the Most Blessed Sacrament in Northwest Washington with his two daughters and his wife, Ashley, who was Bush's personal secretary.