4 things to know about Judge Brett Kavanaugh
Standing alongside President Donald Trump in the East Room of the White House, the 53-year-old conservative judge from the D.C. Circuit Court of Appeals accepted the nomination to serve on the Supreme Court and replace Justice Anthony Kennedy.
Judge Brett Kavanaugh's record will be carefully assessed in the coming weeks to determine what type of justice he will be, explained Zac Hudson, who clerked for Kavanaugh from 2009 to 2010. "I believe that will be informed by what type of man he is," he noted, "and in my view, he is exceptional."
Below are four things to know about Kavanaugh that may inform his role on the Supreme Court, if he secures the nomination.
A POLITICAL CONSERVATIVE
It was universally expected that Trump would select a nominee who would cement the conservative majority on the nine-member court.
In choosing Kavanaugh, Trump not only chose someone with a constitutionally conservative record on the bench, but also a background in conservative politics.
During the 2000 presidential campaign, Kavanaugh was a regional campaign coordinator for George W. Bush and later participated in the Florida recount. After Bush took office, he brought Kavanaugh into the White House to serve as a legal counsel.
According to Bush's former deputy chief of staff, Karl Rove, Kavanaugh played a vital policy role as "staff secretary" in the Bush White House. "Literally every document that goes to the president on a policy issue has to pass through the hands of the staff secretary," Rove said in a Monday night interview on Fox Business, explaining that Kavanaugh often edited policy documents to make political arguments stronger.
Kavanaugh's role in the Bush White House was used against him during his 2006 Senate confirmation hearing to serve on the D.C. Circuit Court of Appeals.
At the time, Sen. Chuck Schumer, D-N.Y., portrayed Kavanaugh as a Republican ideologue. "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 argued.
This week, Schumer has again taken a hard stance against Kavanaugh saying he would "oppose him with everything I've got."
Kavanaugh's ties to the Republican Party and support from conservative groups may be extensive, but claims that those connections influenced his opinions are not clearly borne out by his record as a judge.
Even with a long paper trail, it is difficult to predict how Kavanaugh might rule on hot-button issues that may come before the court, from abortion and gun laws to cases dealing with LGBTQ rights and religious freedom.
Protesters crowded around the Supreme Court on Monday night to oppose President Trump's nominee many holding signs calling for the protection of Roe v. Wade, the landmark decision that legalized abortions nationwide. President Trump's campaign pledge to select justices who would likely overturn Roe v. Wade has fueled a fierce backlash from pro-choice activists and applause from pro-life groups.
However, Kavanaugh's record on the issue of access to abortions is anything but clear-cut.
In 2017, Judge Kavanaugh ruled on a controversial case, Garza v. Hargan, that dealt with two hot-button issues, abortion access and immigration. In the case, a federal judge determined a teenager in the country illegally could be released from immigration custody in order to have an abortion.
In a dissenting opinion, Kavanaugh challenged the notion on the ground of the teenager's legal status, arguing against the notion of the government authorizing "immediate abortion on demand" as a right to "unlawful immigrant minors." His decision, which ultimately allowed the teenager to have an abortion after a period of 10 days, upset anti-abortion hardliners who believe he took too lenient an approach on the issue of life.
In another case in 2015, pro-life activists and religious conservatives applauded the judge for his dissenting opinion in a case dealing with the Affordable Care Act's mandate for birth control coverage. Kavanaugh dissented from the majority opinion and argued the government mandate for contraception coverage infringed upon religious freedom.
On the issue of gun rights, Kavanaugh staunchly defended the Second Amendment in a 2011 case challenging Washington, D.C.'s ban on semi-automatic rifles. He dissented from the majority opinion, which upheld the ban, arguing it was unconstitutional. He cited Supreme Court precedent which affirmed Second Amendment protections for handguns.
A number of human rights and LGBTQ activists have raised concerns about Kavanaugh on the issue of religious rights and civil rights for LGBTQ individuals. Some activists are questioning his qualifications for the court because of support he received from conservative religious groups and opponents of same-sex marriage, like the Family Research Council.
These and other issues are almost certain to be brought up during Kavanaugh's confirmation hearing, but according to many legal scholars, a litmus test on particular political issues is not the right way to evaluate a judge.
"I know everybody wants to talk about issues," said Randy Barnett, a constitutional law professor at Georgetown University Law Center. "But I don't think that's how we should be vetting judges."
Senators will likely press Kavanaugh on previous cases dealing with controversial subjects, but most nominees are adept at avoiding questions dealing with future cases that may come before the court and steer clear of making statements that could appear prejudicial.
More telling, Barnett noted, would be for senators to ask the nominee how he interprets a particular clause in the Constitution. "We should be asking what approach they're going to be taking to the Constitution and whether we think that is the right approach to the Constitution or not," he said.
THE ADMINISTRATIVE STATE
In recent years, the Supreme Court has been faced with cases calling into question the rights of executive branch agencies to enact laws and policies not explicitly authorized by Congress.
Notably, President Barack Obama's Environmental Protection Agency faced numerous legal challenges for allegedly overstepping its authority to regulate air and water pollutants beyond the laws passed by Congress.
The Obama administration also faced a series of court challenges related to the Affordable Care Act, including a case that may eventually wind up in front of the Supreme Court challenging the constitutionality of Obamacare's coverage for pre-existing medical conditions.
At least one crucial red-state Democrat, Sen. Joe Manchin of West Virginia, has said Kavanaugh's position on preserving coverage for pre-existing conditions will weigh heavily on his decision whether or not to support the nominee.
From his seat on the D.C. Court of Appeals, Judge Kavanaugh heard a large number of cases involving adminstrative law. Hudson, like almost all of Kavanaugh's clerks, worked on some of those cases and said Kavanaugh's approach was always informed by his rigorous approach to the constitutional separation of powers.
"Administrative agencies and regulators have nothing to fear so long as they're operating within the confines of the Constitution and the statutes that Congress has enacted," Hudson explained. To the extent they exceed their constitutionally prescribed powers, he added, "then, of course, Judge Kavanaugh will vindicate the Constitution."
A number of conservative groups in favor of deregulation believe they have a champion in Kavanaugh, while environmental rights groups and lawmakers trying to protect Obamacare worry he will rule against their causes.
Again, Kavanaugh's record does not show favor for one side of an issue or another.
For example, he upset many conservatives with a 2011 dissenting opinion on the constitutionality of the Obamacare individual mandate. Kavanaugh essentially argued that the appeals court did not have the proper jurisdiction to consider the question.
His argument was later used by Justice John Roberts in the 2012 Supreme Court case affirming the constitutionality of the Obamacare individual mandate under Congress' taxation authority.
The judge's long history presiding over administrative law cases and his firm stance on the separation of powers are certain to inform cases that may come before the court regarding Obamacare, EPA regulations, net neutrality rules or campaign finance.
Before joining the George W. Bush administration, Kavanaugh worked as a lawyer for Kenneth Starr, the independent counsel in charge of investigation President Bill Clinton.
Despite assisting Starr in the investigation of a sitting president, Kavanaugh later expressed regret for what he believed "distracted" the president from more pressing matters, like national security.
In a 2009 article in the Minnesota Law Review, Kavanaugh argued that sitting presidents should be granted "a temporary deferral of civil suits and of criminal prosecutions and investigations."
He noted, "If the president does something dastardly, the impeachment process is available."
Some Democrats have claimed Kavanaugh's amended position could favor President Trump, if the ongoing special counsel investigation indicates criminal wrongdoing by the president.
Sen. Richard Blumenthal, D-Conn., called on Kavanaugh to recuse himself from any criminal matters related to the president, arguing the nominee would be a "get out of jail free pass" for Trump. "He would be the swing vote," Blumenthal claimed, in deciding whether President Trump could be called before a grand jury or indicted while still in office.
Kavanaugh's 2009 position is consistent with the Office of Legal Counsel opinion against bringing criminal charges against a sitting president.