WASHINGTON – Appellate Judge Brett Kavanaugh has endorsed robust views of the powers of the president, consistently siding with arguments in favor of broad executive authority during his 12 years on the bench in Washington.
He’s called for restructuring the government’s consumer watchdog agency so the president could remove the director and has been a leading defender of the government’s position when it comes to using military commissions to prosecute terror suspects.
Kavanaugh is “an unrelenting, unapologetic defender of presidential power” who believes courts can and should actively seek to rein in “large swaths of the current administrative state,” said University of Texas law Prof. Steve Vladeck, who closely follows the D.C. Circuit Court of Appeals.
His record suggests he would be more to the right than the man he would replace, Justice Anthony Kennedy, for whom he clerked. Kavanaugh has staked out conservative positions in cases involving gun rights, abortion and the separation of powers.
Still, in the run-up to his nomination, Kavanaugh fielded criticism from social conservatives who objected to language he used in connection with the Affordable Care Act’s contraception mandate, as well as his ties to the Bush family and GOP establishment. They also complained about his opinion in a case involving an immigrant teen seeking an abortion.
Washington attorney Helgi Walker, who worked with Kavanaugh during the Bush administration, said Monday that her former colleague would be “a fair and open-minded justice who values individual liberty and freedom.”
“All Americans should be pleased with this fabulous choice,” said Walker, who attended the White House reception. “He will respect the Constitution and follow the law wherever it goes instead of making it up himself as he goes along.”
Kavanaugh, 53, born in Washington, D.C., was a standout student and athlete. He attended the same Jesuit high school in Maryland as Supreme Court Justice Neil Gorsuch, another former Kennedy clerk.
His mother, Martha, a public schoolteacher in D.C., and his father, Edward, both graduated from law school in 1978 when Kavanaugh was a teenager. His mother was a Montgomery County, Md., Circuit Court judge, and his father led a trade association.
After graduating from Yale Law School, Kavanaugh spent his early career steeped in GOP politics and partisan warfare. As a young lawyer for independent counsel Kenneth Starr, he investigated the death of President Bill Clinton’s deputy counsel, Vincent Foster. (Kavanaugh concluded there was no doubt Foster had killed himself.) He laid out the grounds for impeaching Clinton.
His views of presidential power were shaped in part by the years he worked as a close aide to George W. Bush, including two years in the White House Counsel’s Office and three years as staff secretary.
After becoming a judge, he argued that presidents should not be distracted while in office by lawsuits or criminal investigations, which “would ill serve the public interest, especially in times of financial or national security crisis,” he wrote in a 2009 law review article.
That position could become a focus of his confirmation hearing. Special Counsel Robert Mueller is sparring with Trump’s lawyers over his request to interview Trump for the investigation into Russian interference in the 2016 election — a legal battle that could end up before the high court.
Kavanaugh’s confirmation to the appellate court was a divisive, drawn-out process. Bush nominated him to the D.C. Circuit in 2003, but Democrats held up the confirmation because of Kavanaugh’s work in the White House and on the Starr report. He was eventually confirmed by the Senate in 2006 by a vote of 57-36.
On the bench, Kavanaugh is a proponent of “originalism,” the practice of interpreting the Constitution and statues by looking at the original meaning and text.