Reprinted with permission from ProPublica.
Who Is Brett Kavanaugh? A Supreme Court Reading Guide
President Trump on Monday night nominated Judge Brett Kavanaugh to the seat on the U.S. Supreme Court that Justice Anthony Kennedy will vacate at the end of the month. Kavanaugh is a judge on the powerful U.S. Court of Appeals for the D.C. Circuit. Below, we’ve gathered some of the best reporting on Kavanaugh.
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SCOTUSblog, June 2018 — SCOTUSblog’s profile of Kavanaugh provides a comprehensive summary of the judge’s background, from his upbringing in the Washington area to his college and law school years at Yale to his prestigious positions in various parts of the federal government. As the profile notes, Kavanaugh was a law clerk for Kennedy, whom he has been nominated to replace. The piece offers a highlight reel of Kavanaugh’s time on the federal appeals court in Washington. Ultimately, the article concludes, Kavanaugh “brings a pragmatic approach to judging,” albeit with a serious conservative bent.
Mother Jones, June 2018 — This Mother Jones profile casts Kavanaugh as a consummate insider of the D.C. conservative establishment who “frequently inserted himself into high-profile political battles.” Kavanaugh worked on the team of Kenneth Starr, the independent counsel who investigated President Bill Clinton’s affair with Monica Lewinsky. He represented the Miami relatives of Elian Gonzalez in a high-profile immigration dispute in 2000, in which they sought to keep the Cuban boy in the United States. He worked on George W. Bush’s legal team during the contentious 2000 presidential election recount in Florida — and went on to oversee judicial nominations in Bush’s White House Counsel’s Office. His ubiquity earned him the nickname the “Forrest Gump of Republican politics.”
FiveThirtyEight, July 2018 — FiveThirtyEight draws on a tool to measure judicial ideology developed by legal scholars and political scientists to assess Kavanaugh’s potential effect on the Supreme Court’s jurisprudential makeup. The conclusion: a Justice Kavanaugh “would likely be considerably more conservative than Kennedy, and would fall to the left only of Justice Clarence Thomas.” Kavanaugh is “an active member of the conservative Federalist Society” and “a textualist in the mode of the late Justice Antonin Scalia.”
New York Times, July 2018 — The Times’ Mark Landler and Matt Apuzzo take a look at Kavanaugh’s time on Starr’s team — and its implications for Trump. Starr’s report as independent counsel, which Kavanaugh co-wrote, argues that lying to staff members and misleading the public are grounds to impeach a president for obstruction of justice. That “broad definition of obstruction of justice,” Landler and Apuzzo write, “would be damaging if applied to President Trump in the Russia investigation.”
Top Supreme Court Prospect Has Argued Presidents Should Not Be Distracted by Investigations and Lawsuits
Washington Post, June 2018 — The Washington Post examines a 2009 law review article in which Kavanaugh argued that a sitting president shouldn’t have to deal with “time-consuming and distracting” lawsuits and investigations. The distraction “would ill serve the public interest, especially in times of financial or national security crisis,” Kavanaugh wrote. That, the Post notes, “puts him on the record regarding a topic of intense interest to Trump — and could be a central focus of his confirmation hearing.”
The New Yorker, March 2012 — In this comment, Jeffrey Toobin describes Kavanaugh as a judge in thrall to partisan politics. Toobin characterizes Kavanaugh’s work as an appeals judge as “startling.” He accuses Kavanaugh of “pandering to the base” in a dissenting opinion he wrote in a case challenging Obamacare. Kavanaugh “appeared to offer some advice to the Republicans who are challenging Obama in the election,” Toobin wrote — whatever courts hold, a Republican president could simply decline to enforce the health-care law because he deems it unconstitutional.
Washington Post, July 2018 — The Washington Post’s Robert Acosta and Josh Dawsey survey conservative misgivings about Kavanaugh’s record on the federal appeals court in Washington. Where Toobin saw Kavanaugh as a right-wing partisan, many social conservatives fear he’s not enough of a hardliner. The conservative response to the White House floating Kavanaugh’s name included “a clamor from those who see him as out of step on health care and abortion, or too tied to George W. Bush’s White House.” The concerns arise from opinions Kavanaugh wrote in cases challenging the Affordable Care Act and in a recent case over the right of an immigrant teenager in federal custody to have an abortion. The judge dissented in those cases, but did not go as far as “ideological purists” would have liked.
NPR, June 2007 — NPR’s Ari Shapiro reported on what some Democratic senators saw as misleading testimony Kavanaugh provided during his 2006 confirmation hearing to become a federal appeals judge in Washington. Kavanaugh had told Sen. Richard Durbin, D.-Illinois, that during his time in the Bush White House he was not involved in conversations about the rules governing the handling of detainees captured in the War on Terror. In fact, he had been involved in 2002 discussions about whether detainees had a right to an attorney. Durbin told NPR he felt “perilously close to being lied to.” (Kavanaugh, through a court spokesman, called his testimony accurate.)
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