Alison Kodjak Ben Wittes Brett Kavanaugh Courts David French Defense Donald Trump Judicial Nominations Judicial Nominees Justice Noah Feldman Politics Robert Mueller Russia Investigation SCOTUS Supreme Court

5 Flashpoints For The Supreme Court Nomination Of Judge Brett Kavanaugh

5 Flashpoints For The Supreme Court Nomination Of Judge Brett Kavanaugh

(Photograph by MANDEL NGAN/AFP/Getty Photographs)

Since President Donald Trump’s Monday night time announcement of Judge Brett Kavanaugh as his second Supreme Court nominee, to succeed Judge Kavanaugh’s former boss, Justice Anthony M. Kennedy, we’ve been deluged with information and opinion each for and towards the SCOTUS nominee.

What are the main points associated to Judge Kavanaugh’s nomination, and are any of them critical sufficient to derail his affirmation? Right here’s my try and make sense of all of it, distilling the din down to 5 topics that may develop into focal factors as Judge Kavanaugh’s nomination strikes ahead.

(Observe that none of those points pertains to his qualifications. Kavanaugh graduated from Yale School and Yale Regulation Faculty, clerked for the Supreme Court, served as a Justice Division and White Home lawyer, labored as a companion at Kirkland & Ellis, and has been a decide on the D.C. Circuit, the second most essential courtroom within the nation after SCOTUS, for a dozen years. His credentials are excellent and unquestionable.)

1. Government department authority and the separation of powers.

As a younger lawyer, Brett Kavanaugh famously labored for unbiased counsel Kenneth Starr on the Whitewater/Monica Lewinsky investigation, throughout which Starr took the place — efficiently — that a sitting president of the USA has no immunity from federal civil litigation for acts accomplished earlier than taking workplace and unrelated to the workplace. However since then, Kavanaugh has articulated a place extra favorable to the presidency than the one taken by Ken Starr and his staff again within the day.

In a 1998 article for the Georgetown Regulation Journal, Kavanaugh recommended that Congress undertake laws offering that the president “is not subject to indictment or information under the laws of the United States while he serves as president.” In a 2009 article for the Minnesota Regulation Evaluate, Kavanaugh argued that each civil lawsuits and legal investigations “take the president’s focus away from his or her responsibilities to the people” — and that Congress, by statute, ought to “provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations.”

Democrats have seized upon these writings to argue that Judge Kavanaugh, if he turned Justice Kavanaugh, would rule in ways in which would give extreme safety to President Trump — particularly from the continued Russia investigation of particular counsel Robert Mueller. However this argument is misguided, as defined by Harvard regulation professor Noah Feldman, who’s not precisely a fan of the Trump Administration (emphasis added):

Correctly understood, Kavanaugh’s expressed views truly help the other conclusion: that the president could be investigated and perhaps even indicted until Congress passes a regulation saying he can’t — which Congress has not executed.

And which Congress gained’t do, given the bipartisan help expressed for the Mueller investigation. As argued by Ben Wittes, additionally not a Trump fan, over at Lawfare:

Feldman is strictly proper. In some respects, he truly understates the case….

[Kavanaugh, in his writings, has set forth] a developed statutory proposal [describing] a construction very very similar to that of the Mueller investigation; he ha[s] defended the very concept of such investigations; and he ha[s] described the president as having no government privilege to say earlier than them.

This doesn’t sound like somebody who would rule in Trump’s favor in litigation questioning the constitutionality of the Mueller investigation or its capacity to take applicable investigative steps.

And in addition notice that previously, when coping with thorny points relating to the president’s immunity to authorized course of (or lack thereof), the Supreme Court has tried mightily to realize consensus — and succeeded, as mirrored within the unanimous selections in United States v. Nixon and Clinton v. Jones. In different phrases, it’s extremely unlikely that a Justice Kavanaugh can be the “swing vote” on Mueller points anyway.

2. Abortion and Roe v. Wade.

In making an attempt to argue that a Justice Kavanaugh would represent a menace to abortion rights and overrule Roe v. Wade, Democrats level to his dealing with of Garza v. Hargan. On this case, Judge Kavanaugh dissented from the choice of the D.C. Circuit, sitting en banc, to permit a 17-year-old undocumented immigrant to obtain a direct abortion.

Removed from taking some excessive anti-abortion place, Judge Kavanaugh tried to take a center path that may have accommodated the totally different pursuits at stake. As a member of the three-judge panel that dealt with the case earlier than it was reheard en banc, he ordered the federal government “to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion.” This may have allowed the minor to go away the federal shelter the place she was being held and obtain private help from a sponsor in the course of the means of acquiring an abortion.

Judge Kavanaugh’s place was extra favorable to abortion than the federal authorities’s place, which argued that it had no obligation to facilitate the minor’s abortion and that she had the choice of returning to her residence nation (which doesn’t permit abortion). It was additionally extra favorable to abortion than the place of Judge Karen LeCraft Henderson, who argued that the minor had no constitutional proper to an abortion, full cease (though notice that Judge Henderson reached that conclusion on grounds associated to the plaintiff’s standing as an alien minor with no substantial ties to the USA, not on grounds associated to abortion).

Due to the moderateness of his place, Judge Kavanaugh wound up being attacked from the proper for being “squishy” on abortion. Regardless that these assaults lack benefit (as Shannen Coffin defined within the Nationwide Evaluation), they do mirror the truth that Kavanaugh faithfully utilized Roe and the later case of Deliberate Parenthood v. Casey, with out grievance.

Does Kavanaugh’s software of Roe as a lower-court decide imply that he would uphold it as a Supreme Court justice? No. But when being on report as towards Roe is disqualifying for a SCOTUS nominee, there’s nothing in Kavanaugh’s opinions that may disqualify him or trigger him to lose the votes of pro-choice senators like Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). And given the established protocol of nominees not stating at their affirmation hearings how they might rule on future instances, which conservatives have dubbed “The Ginsburg Rule” (based mostly on then-Judge Ruth Bader Ginsburg’s frequent invocation of it at her personal hearings), this isn’t going to vary between now and the vote on Kavanaugh’s nomination.

Kavanaugh opponents additionally cite a 2017 speech through which he made feedback that could possibly be construed as important of Roe. However the feedback usually are not specific sufficient to offer a lot fodder for his foes; he didn’t name Roe an “abomination,” as did fellow SCOTUS shortlister Invoice Pryor (11th Cir.), nor did he dub it “inimical to the Constitution,” as did former SCOTUS shortlister Emilio Garza (fifth Cir.)

Even when the speech could be learn as Judge Kavanaugh criticizing Roe, it’s nonetheless removed from proof that he would vote to overrule it. Roe additionally implicates the difficulty of stare decisis, or respect for precedent — and Kavanaugh, as a “judge’s judge,” locations vital weight on precedent. If I needed to guess, I feel he would do on Roe what I’ve beforehand predicted Chief Justice John Roberts would do (the 2 judges are sometimes in contrast): he would hold the well-known, 45-year-old precedent on the books, to guard the Supreme Court’s institutional pursuits and credibility, however vote on the margins to uphold a good variety of abortion restrictions (as did Justice Kennedy; see, e.g., Gonzales v. Carhart, the place he penned the bulk opinion upholding the federal Partial-Start Abortion Ban Act).

Three. Well being care.

Apart from abortion, Democrats cite well being care as a problem the place Justice Kavanaugh would deliver concerning the apocalypse. Once more, these assaults are overblown — and unlikely to get a lot traction.

Judge Kavanaugh’s most well-known opinion on well being care, his dissent as to jurisdiction in Seven Sky v. Holder, was an enormous disappointment to conservatives. As an alternative of hanging down the Reasonably priced Care Act (aka Obamacare), he concluded that his courtroom lacked jurisdiction to listen to the problem due to the Anti-Injunction Act, which prohibits taxpayers from difficult a tax regulation earlier than the federal government seeks to implement the regulation. He held the Act relevant as a result of he seen the Obamacare penalty as a tax — a place later adopted by Chief Justice Roberts, additionally to conservatives’ chagrin.

In his second most well-known opinion within the space, dissenting from denial of en banc rehearing in Clergymen for Life v. HHS, Judge Kavanaugh argued that the contraception mandate of Obamacare violated the First Modification free train rights of spiritual organizations that have been required to submit a type or face financial penalties for not offering contraception to their staff. Democrats cite this as proof that Kavanaugh can be hostile to the ACA — however once more, he took a center path. Writing within the Nationwide Assessment, David French truly complains that though Judge Kavanaugh reached the correct outcome, his opinion “excessively inflated the government’s interest in facilitating access to contraceptives.”

So removed from being the Grinch who’s about to steal Obamacare, Judge Kavanaugh has a combined document on well being care that defies straightforward characterization. As NPR well being coverage correspondent Alison Kodjak sums up, Kavanaugh “could very well have some decisions that please opponents of the law, and he could make some decisions that make ACA supporters really happy.”

four. Paperwork, paperwork, paperwork.

Due to his lengthy document of presidency service, on the Justice Division, the White Home, and the D.C. Circuit, Judge Kavanaugh has generated a ton of paperwork, lots of them not but made public. Senate Minority Chief Chuck Schumer argues that the Democrats want “access and time” to evaluation all these paperwork — and that Kavanaugh’s affirmation hearings must be delayed if the paperwork can’t be produced promptly.

That is definitely a professional concern — however at this level, it’s speculative. The Trump administration is throwing ample assets on the challenge, together with probably lots of of Justice Division legal professionals, and it sounds prefer it’s doing no matter it takes to offer the Senate with well timed entry to the paperwork wanted to carry out its advice-and-consent perform.

As I stated on Twitter, responding to individuals arguing towards nominating Kavanaugh due to his prolonged paper path, “the tail of doc review shouldn’t wag the #SCOTUS dog.” And as any Biglaw lawyer can inform you, when doc assessment is essential sufficient, it will get achieved within the allotted time.

5. Judge Alex Kozinski and the #MeToo motion.

Talking of speculative… some observers, together with my colleague Elie Mystal in these pages, ponder whether Judge Kavanaugh may need recognized concerning the conduct of certainly one of his ex-bosses, former Ninth Circuit Judge Alex Kozinski, that gave rise to allegations of sexual harassment towards Kozinski. When rival camps have been gunning for Judge Kavanaugh previous to his choice as SCOTUS nominee, a six-page opposition analysis doc making an attempt to tie him to the Kozinski allegations made the rounds. (Who generated that doc stays unclear.)

I don’t consider there’s something to this. As one former Kozinski clerk advised Politico, “After these allegations were reported in the press last year, I spoke with various former Kozinski clerks — including Judge Kavanaugh. None of us, including Judge Kavanaugh, had heard of any of these troubling allegations.”

As famous within the Politico piece, Kavanaugh clerked for Kozinski virtually three many years in the past, early in Kozinski’s tenure on the bench and earlier than he’s accused of getting behaved inappropriately towards feminine clerks. It’s true that they labored collectively as “screeners” for Justice Kennedy, interviewing clerkship candidates and deciding which of them have been worthy of assembly with AMK himself. However as one former Kennedy clerk knowledgeable me, this work occurred over e-mail and by telephone, because the judges lived on reverse sides of the nation and noticed one another in individual solely episodically (e.g., at Kennedy clerk reunions each few years). So it appears unlikely to me that Judge Kavanaugh knew concerning the allegations that emerged final yr within the Washington Publish and different publications.

However you recognize what? That is hypothesis too. At this level, senators ought to simply look forward to Judge Kavanaugh’s affirmation hearings and ask him, beneath oath, about this and some other topic of concern. And sexual harassment and the #MeToo motion are topics of respectable concern for federal judges, as famous in Chief Justice Roberts’s year-end report on the federal judiciary and the June 2018 report of the Federal Judiciary Office Conduct Working Group (established on the course of the Chief Justice).

I extremely doubt that Judge Kavanaugh has any private #MeToo points. As reported within the Occasions, “Of the 48 clerks who worked for Judge Kavanaugh over 12 years on the United States Court of Appeals for the District of Columbia Circuit, 25 were women, said Katie Wellington, who worked for him in 2014, when all four clerks were women, including Usha Chilukuri Vance, who now clerks for Chief Justice John G. Roberts Jr.”

That’s a unprecedented document, given the issue of inadequate gender variety among the many ranks of federal regulation clerks, particularly clerks to Supreme Court “feeder judges” like Judge Kavanaugh. And Judge Kavanaugh’s former clerks strongly help his nomination, as you’ll be able to see from this letter signed by each single Kavanaugh clerk not prohibited from signing due to their present or future employment.


So there you’ve gotten it: 5 points that Judge Kavanaugh should confront through the affirmation course of, none of which seems to be like a dealbreaker or critical menace to his nomination.

In mild of the restricted ammunition towards Judge Kavanaugh, how ought to Democrats proceed? I are likely to agree with Bret Stephens of the New York Occasions, who argues that opposing Kavanaugh tooth and nail is “likely doomed to fail and equally likely to hurt Democratic chances in the fall.”

Preliminary indications recommend that Senators Susan Collins and Lisa Murkowski will help Kavanaugh (as they did when he was nominated to the D.C. Circuit in 2006) — which signifies that he’ll virtually definitely be confirmed once more this time round. So preventing his nomination solely to lose anyway will merely jeopardize the Senate prospects of red-state Democrats, additional decreasing the Democrats’ probabilities of retaking the chamber.

Right here’s one further level. I feel many would agree with me that in a super world, we’d return to a time when certified nominees would win affirmation with out regard to politics — to the times when Justice Ruth Bader Ginsburg might get confirmed by a vote of 96-Three, and Justice Antonin Scalia by a vote of 98-Zero. We gained’t get there until one get together makes the choice to face down. The Kavanaugh nomination looks like an opportune time for the Democrats to face down, contemplating that he’s so more likely to be confirmed and that opposing him will solely harm their electoral fortunes.

In order that’s what the Democrats ought to do — as a result of it’s the correct factor to do, and since it’s of their self-interest as properly. However is it what they may do? In all probability not. The Democratic Social gathering has a exceptional expertise for self-sabotage — see, e.g., the presidential marketing campaign of Hillary Clinton — and there’s no cause to anticipate it to finish now.

P.S. In the event you’re a Yale School or Yale Regulation Faculty graduate who disagreed with the anti-Kavanaugh letter from YLS college students and alumni that my colleague Joe Patrice wrote about yesterday, please take a look at — and think about signing — this letter from Yale college students, alumni, and school in help of Judge Kavanaugh.

P.P.S. Talking of Kavanaugh nomination protection by a few of my fellow writers right here at Above the Regulation, over the previous few days, some readers have come to me with suggestions about these posts. Pleasant reminder: final October, I stepped down as managing editor of ATL, which means that I’m now concerned with, and chargeable for, my tales and my tales alone. Nor do I personal Above the Regulation; I based the location, however ATL is owned by Breaking Media, which publishes a half-dozen web sites targeted on totally different industries and professions. So whereas I welcome feedback about tales bearing my private byline (my contact info seems in my bio under), there isn’t a level in contacting me about ATL tales written by others. Thanks.

Simply Affirm Kavanaugh [New York Times]Democrats Zero In on Kavanaugh’s Protection of Presidential Energy [New York Times]Kavanaugh’s Papers Don’t Assist Trump Keep away from Indictment [Bloomberg]Brett Kavanaugh and the Mueller Investigation: What Do His Writings Actually Say? [Lawfare]The First Untruth about Judge Kavanaugh [National Review]Scurrilous Assaults on a Potential Trump Nominee — from the Proper [National Review]Dem push for Kavanaugh data might sluggish nomination [Politico]Rosenstein Asks Prosecutors to Assist With Kavanaugh Papers in Uncommon Request [New York Times]


DBL square headshotDavid Lat is editor at giant and founding editor of Above the Regulation, in addition to the writer of Supreme Ambitions: A Novel. He beforehand labored as a federal prosecutor in Newark, New Jersey; a litigation affiliate at Wachtell, Lipton, Rosen & Katz; and a regulation clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You’ll be able to join with David on Twitter (@DavidLat), LinkedIn, and Fb, and you may attain him by e mail at [email protected]