Supreme Court Poised For Rightward Shift Under Kavanaugh

Kevin Daley | Supreme Court Reporter

President Donald Trump will nominate Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to the Supreme Court, heralding a decisive rightward shift on the nation’s highest judicial tribunal.

In a prime time East Room ceremony at the White House, the president trumpeted his selection, the fulfillment of a campaign promise which places a secure Supreme Court majority within the reach of conservatives.

“Brett Kavanaugh is among the most distinguished and respected judges in the country, with nearly 300 opinions that clearly demonstrate fairness and a commitment to interpreting the Constitution as it’s written and enforcing the limits on government power contained in the Constitution,” said Leonard Leo, the Federalist Society’s executive vice president.

A double Yalie with some two decades experience as a government lawyer and appeals judge, Kavanaugh is an archetypal Supreme Court nominee. He was notes editor of the Yale Law Review, clerked for Justice Anthony Kennedy, and practiced at an elite firm before entering the George W. Bush administration.

Kavanaugh’s close ties to the Bush White House appeared detrimental to his prospects for the appointment, given Trump’s enduring suspicion of the Bush family. Indeed, the judge was one of Bush’s closest aides, managing the former president’s paper flow for three years as staff secretary.

But those concerns were effectively mitigated by Kavanaugh’s well-placed supporters inside the Trump administration. The judge is a favorite of White House counsel Don McGahn, who managed the selection process in significant part. He is also admired within conservative legal circles. He appears periodically at Federalist Society events and delivered the Heritage Foundation’s annual Joseph Story lecture in October 2017. (RELATED: Trump’s Supreme Court Pick Is IN)

His 2003 nomination to the D.C. Circuit was met with intense opposition from Democrats, who stalled his appointment in the Senate for three years. Since joining the appeals court, he has developed a reputation as a text-focused judge who cares deeply about the separation of powers. Some of his best known opinions on the court have involved constitutional challenges to the structure of administrative agencies.

For example, in a 2008 dissent eventually vindicated by the Supreme Court, Kavanaugh argued that the framework of the Public Company Accounting and Oversight Board (PCAOB) was unconstitutional because its members had stronger protections against termination than comparable officials. He reprised a similar argument in a 2016 opinion concerning the Consumer Financial Protection Bureau (CFPB), a pet project of Democratic Sen. Elizabeth Warren of Massachusetts.

Another notable Kavanaugh dissent came in a 2011 challenge to Washington D.C.’s ban on semi-automatic long rifles. The judge argued the district’s ban on rifle possession and its stringent licensing requirements were unconstitutional in light of the Supreme Court’s 2008 D.C. v. Heller decision, which affirmed the constitutional right to possess firearms in the home for self-defense.

The judge is also a professed admirer of the late Justice Antonin Scalia. Speaking at a conference on administrative law at George Mason University’s Antonin Scalia Law School, Kavanaugh called Scalia’s commitment to textualism and judicial restraint “profound and worth repeating often.”

Social science metrics suggest the justice would be a deeply conservative presence on the high court. One influential empirical measure, called a judicial common space score, places Kavanaugh to the right of Justices Samuel Alito and Neil Gorsuch, but to the left of Justice Clarence Thomas.

As special counsel Robert Mueller’s investigation looms large over the White House, Trump may have found attractive Kavanaugh’s sweeping view of executive power. Though he worked for Clinton investigator Ken Starr in the 1990s, Kavanaugh’s instincts were deeply affected by his service in the Bush administration. In a 2008 lecture at the University of Minnesota Law School, he argued sitting presidents should be exempt from criminal indictment, civil suits, and investigations for the extent of their tenure.

Still, skepticism of his conservative bona fides remains prevalent in certain quarters. GOP Sens. Ted Cruz of Texas and Rand Paul of Kentucky have reportedly relayed concerns about the judge’s reliability to the administration. Neither lawmaker has spoken publicly about their opposition to Kavanaugh, though both signed a letter urging the president to appoint their colleague Sen. Mike Lee of Utah to the high court.

The Daily Caller News Foundation reported that Lee was not under consideration for the appointment on July 2.

Whatever skepticism may persist, one important ally on the religious right came out for the judge just moments after the nomination was announced. Tony Perkins, president of the socially conservative Family Research Council, said Kavanaugh’s selection amounted to a fulfillment of his campaign promises.

“President Trump promised a constitutionalist — someone who will call balls and strikes according to the Constitution,” he said in a statement on Monday night. “We trust the president that Judge Kavanaugh will fit this mold as a justice.”

Kavanaugh flashed his own religious credentials during Monday night’s announcement, noting his association with Washington’s vibrant Catholic firmament.

He struck a similar cord when he delivered the commencement address at Catholic University’s Columbus School of Law in May.

“Being a graduate of this law school means you will have many advantages, but you also have responsibilities: serve meals to the homeless, give clothing to the poor, and use your legal training to help those who need legal help,” he said. “As Pope Francis says, faith and values mean not just belief and going to Mass, but action.”

GOP Sen. Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, said the chamber should move quickly to process his nomination, given the strength of his credentials and experience.

“Judge Kavanaugh is one of the most qualified Supreme Court nominees to come before the Senate,” Grassley said. “His credentials are well known, and he’s served with distinction as a judge on the esteemed D.C. Circuit for more than a decade. He is a superb mainstream candidate worthy of the Senate’s consideration.”

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