He thinks prosecutors and plaintiffs shouldn’t be able to lay a glove on sitting presidents and President Trump just picked him to be his next Supreme Court nominee. Judge Brett Kavanaugh is a known quantity in Washington having survived a previous Democratic attempt to prevent him from sitting on a federal bench. So who is Brett Kavanaugh and what kind of justice would he be?
Mueller tea leaves: Kavanaugh appeared to be somewhat chastened by his role in Kenneth Starr’s investigation of Clinton and suspicious of the presidential inquisitors. That skepticism, and a history of expressed wishes to limit the power of special counsels, appears to have endeared the Mueller-wary Trump his second Supreme Court pick. Can a prosecutor indict a sitting president? As a matter of constitutional law, Kavanaugh has described it as “debatable.” In a 1998 article, he wrote that a president should be indictable “only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate.”
In a 2012 law review article, he reiterated his belief that Congress should grant presidents a “temporary deferral” of criminal prosecution, as well as civil suits, while in office and wrote that it is “vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” “No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”
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Guns: Kavanaugh weighed in on the most important Second Amendment court case as a judge in Heller v District of Columbia. The Supreme Court overturned Washington, DC’s handgun ban in Heller but the case came back to the DC Circuit Court of Appeals over the city’s handgun registration requirements and its ban on assault rifles. Kavanaugh dissented from the majority to argue that “there is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles” and that a ban is thus unconstitutional.
Abortion: In a confirmation process, senators will have the chance to review Kavanaugh’s dissent in Garza v. Hagan and may be able to draw the judge on two of the most potentially explosive political issues; both the future of abortion rights and Roe v. Wade as well as the rights of immigrant children held by the U.S. government without their parents. In Garza, the Office of Refugee Resettlement (ORR) refused to allow a pregnant unaccompanied undocumented minor who entered the U.S. to have an abortion. The DC Court of Appeals eventually ordered ORR to allow the girl access to an abortion.
Kavanaugh blasted the majority for creating what he said was “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” While not disputing that Roe v. Wade was binding precedent, he argued that the government should’ve been able to transfer the minor to a sponsor in the U.S. before she made a “momentous decision” about an abortion rather than providing her direct access to an abortion provider from an ORR shelter.
Obamacare: Kavanaugh caught some flack from conservatives for his opinion in Sky v. Holder, which challenged the authority of the individual mandate in Obamacare. Rather than take on the legal merits of the individual mandate or Obamacare in general, Kavanaugh sidestepped the larger issues and instead said the plaintiffs could not challenge the legality of the mandate because the Anti-Injunction Act required they first pay a tax before challenging it. Some conservatives haven’t forgiven him for the punt but as a Supreme Court justice, Kavanaugh may have ample opportunity to weigh in once again.
Coming out swinging: Senate Minority Leader Chuck Schumer (D-NY), now staring down the possibility of a generation of conservative constitutional jurisprudence, has vowed to fight the nomination “with everything I have” as Kavanaugh would put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block.
Déjà vu: Kavanaugh’s first appointment to the DC appeals court in 2003 may not have induced the same levels of panic as his Supreme Court nomination but he was controversial among Democrats even back then. Sen. Schumer described Kavanaugh at his first nomination hearing as an “extreme ideological” pick outside the mainstream and “among the most political in history.” At a time when Democratic memories of the Clinton impeachment were still fresh, Kavanaugh—a Starr veteran and then an employee of the Bush White House— came across as a “whole shaker” of salt in partisan wounds.
They were able to stall his nomination until 2006, but a repeat performance seems unlikely. Democrats need to lock down their own “No” votes and convince two Republicans to come over to their side. A look back at Kavanaugh’s nomination to the federal bench in 2006 suggests that’s not likely. The Senate confirmed him on an almost entirely party-line vote. The Republican senators Democrats are looking to for help—Susan Collins (R-ME), John McCain (R-AZ), Lisa Murkowski (R-AK) all voted for Kavanaugh the first time around and he even picked up three Democratic votes.
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