POLITICS
07/09/2018 09:01 pm ET Updated Jul 09, 2018

Who Is Brett Kavanaugh, Trump’s Nominee To The Supreme Court?

His involvement in partisan battles and views on strong presidential power will likely be the focus of his confirmation hearings.

President Donald Trump nominated Brett Kavanaugh to the Supreme Court. If confirmed, the 53-year-old federal judge could tilt the balance of the court in a solidly conservative direction for decades to come, likely affecting decisions on abortion, gerrymandering, affirmative action, gay rights and capital punishment.  

Kavanaugh’s position on strong executive power and his role in partisan political battles, including independent counsel Kenneth Starr’s investigations into President Bill Clinton and the high court’s decision on the 2000 presidential election recount, are set to dominate what’s shaping up to be an extraordinarily contentious confirmation hearing.

Brett Kavanaugh last appeared before the Senate Judiciary Committee for a confirmation hearing in late April 2004 as Pre
Scott J. Ferrell/Congressional Quarterly via Getty Images
Brett Kavanaugh last appeared before the Senate Judiciary Committee for a confirmation hearing in late April 2004 as President George W. Bush's nominee to the U.S. Court of Appeals for the D.C. Circuit.

 

Here’s what you need to know about Kavanaugh’s rulings, his career rise and the work that helped bring him to the attention of Trump:

Involvement In Partisan Battles

Kavanaugh has been a long-rising star in conservative circles. After graduating from Yale Law School and serving out three clerkships, he made his first splash in Republican politics as part of the Starr investigations into Bill and Hillary Clinton in the 1990s.

As a deputy to Starr, Kavanaugh co-wrote a portion of the final Starr Report that made the case for Clinton’s impeachment, and he led the inquiry into the death of Vincent Foster, the deputy White House counsel whose suicide became the subject of tabloids and conspiracy theories (at times peddled by Trump himself). 

Two years later, Kavanaugh was part of George W. Bush’s legal team in the fight over the 2000 presidential election recount.

This nomination appears to be judicial payment for political services rendered. Sen. Chuck Schumer (D-N.Y.) in 2004

After a Supreme Court victory for Bush essentially meant the electoral defeat of Democratic nominee Al Gore, Kavanaugh took up various roles in the Bush White House, including in the Office of the White House Counsel.

Bush then nominated Kavanaugh in 2003 to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, a position often viewed as a steppingstone to the Supreme Court. But Kavanaugh’s nomination was heavily contested in the Senate ― Democrats accused him of being too partisan ― and his appointment to the appellate court stalled for almost three years.

“The bottom line seems simple: This nomination appears to be judicial payment for political services rendered,” Sen. Chuck Schumer (D-N.Y.) said during the initial set of confirmation hearings in 2004. During a second confirmation hearing two years later, Democrats again voiced deep concerns. “From the notorious Starr report to the Florida recount ... if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there,” Schumer said in 2006.

Kavanaugh pushed back against the accusation. “I firmly disagree with the notion that there are Republican judges and [Democratic] judges,” he said. “There is one kind of judge. There is an independent judge under our Constitution.”

Vocal Supporter Of Expansive Presidential Power

Kavanaugh has emerged as an outspoken champion of unitary executive theory: the justification of what is effectively unchecked presidential power over the executive branch.

Kavanaugh has argued that a president shouldn’t be burdened by lawsuits, investigations and indictments, a position that may be of great interest to the White House as special counsel Robert Mueller continues his investigation into Russian meddling in the 2016 election.

“Whether the Constitution allows indictment of a sitting President is debatable,” Kavanaugh wrote in a 1998 article that argued that impeachment, not criminal prosecution, is the appropriate mechanism to hold a president accountable for criminal acts. About a decade later, Kavanaugh wrote in a Minnesota Law Review article that he believed a president “should be excused from some of the burdens of ordinary citizenship while serving in office.” He also argued that an indictment of a president would “cripple the federal government,” rendering it “unable to function with credibility” domestically and internationally. Such an outcome, Kavanaugh said, “would ill serve the public interest, especially in times of financial or national security crisis.” 

A Key Abortion Ruling

Kavanaugh’s most prominent opinion on abortion rights came in 2017, when he wrote in dissent not to allow an undocumented teenager to seek an abortion while in federal custody at the U.S. border in Texas.

Kavanaugh argued that the judges in the majority had created a new right for undocumented immigrant minors in U.S. government custody ”to obtain immediate abortion on demand.” He emphasized instead the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion” ― language that certainly appeals to opponents of abortion rights. 

Kavanaugh’s use of the term “abortion on demand” ― coded language that’s only ever employed by anti-abortion activists ― signifies a hostility to reproductive rights in general.

He also dissented with the majority in Priests for Life v. U.S. Department of Health and Human Services, arguing that the Obama administration had imposed a “substantial burden” on the rights of religious groups by requiring them to include birth control coverage in their health insurance plans.

A former law clerk for Kavanaugh who now works for the anti-abortion legal group Thomas More Society wrote in an op-ed that Kavanaugh is the strongest possible choice for a president who hopes to overturn Roe.

“On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh,” she wrote. “On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.”

Kavanaugh ‘Has Written Almost Entirely In Favor Of Big Businesses’

Kavanaugh’s hundreds of opinions in his 12 years on the appeals court have been reliably conservative.

Kavanaugh “has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” noted Adam Feldman, a lawyer who publishes the Supreme Court analysis blog Empirical SCOTUS.

Kavanaugh was also a consistently vocal critic of President Barack Obama’s environmental protection rules. But two of his opinions upheld Obama’s signature legislation, the Affordable Care Act. However, he did later rule in support of religious organizations in a separate case against the ACA.

The Path To The Court Could Be Contentious

Senate confirmation hearings are likely to begin quickly. When Trump announced his decision to nominate Neil Gorsuch to the Supreme Court last year, confirmation hearings began less than two months later.

The confirmation process can be long and arduous. The nominee first faces a bipartisan Senate committee, which will issue a recommendation to the full Senate following their hearing. That is followed by a debate and vote by the full Senate. Kavanaugh will need at least 51 votes to receive confirmation. Republicans hold exactly 51 Senate seats ― enough to speedily confirm the nominee if they find Democratic support or no more than one Republican senator votes no (Vice President Mike Pence can cast a vote to break a tie).

While the vast majority of Republican senators are expected to vote in alignment with Trump’s pick, there are a handful who have at times voted against Trump’s wishes. Those senators include Susan Collins (Maine), Bob Corker (Tennessee), Jeff Flake (Arizona), Lisa Murkowski (Alaska) and Ben Sasse (Nebraska). Further complicating reaching the 51-vote threshold is the health of Sen. John McCain (R-Ariz.), 81, who is suffering from brain cancer and hasn’t been in Washington, D.C., in months.  

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