President Trump, yesterday, Monday, announced that he is nominating Judge Brett Kavanaugh to the Supreme Court seat being vacated by retiring Justice Anthony Kennedy. He said Kavanaugh has “impeccable credentials and unsurpassed qualifications, and a proven commitment to equal justice under the law” and referred to him as a “judge’s judge.”
Kavanaugh, in accepting the nomination, talked briefly about the role of judges. “My judicial philosophy is straightforward,” he said. “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Kavanaugh, who clerked for Kennedy, is a well-known conservative jurist who has served on the D.C. Appeals Court since 2006. A graduate of Yale and then Yale Law, Kavanaugh went to work for independent counsel Ken Starr after his time with Kennedy, and assisted with Starr’s investigations into President Bill Clinton. He was also the lead author of the Starr Report, which famously recounted Clinton’s extramarital affairs in sometimes lurid detail.
The 53-year-old Kavanaugh’s long march through conservative legal circles was not without its setbacks. After leading the investigation into the suicide of Clinton lawyer Vince Foster, Kavanaugh lost his one and only case before the Supreme Court in 1995 in an attempt to get access to notes exchanged between Foster and his attorney.
In 2000, Kavanaugh unsuccessfully attempted to prevent 6-year-old refugee Elian Gonzalez from being returned to Cuba. But later that year, he worked for then-Republican nominee George W. Bush in Bush v. Gore, which ended the Florida recount after the 2000 presidential election.
After several years in the Bush White House, which included a time as White House staff secretary, Kavanaugh was nominated for the D.C. Appeals Court. The fight over his confirmation was contentious, with Illinois Democratic Sen. Dick Durbin at one point calling him the “Zelig or Forrest Gump of Republican politics…whether it’s Elian Gonzalez or the Starr Report, you are there.”
Kavanaugh was finally confirmed in 2006 and has since made his name as a reliably conservative judge, although he does have his detractors on the right who have questioned his rulings involving contraception and Obamacare. But he has a resume and background that would make it hard for anyone to argue that he is unqualified for the Supreme Court.
Kavanaugh’s nomination now heads to the U.S. Senate, which is controlled by a narrow, 51-to-49 seat GOP majority. Democrats are likely to take issue with a number of Kavanaugh’s decisions, including ones pushing back on the government’s ability to regulate commerce. They are also likely to spend time examining his views on abortion, an issue now- Senate Democratic Leader Chuck Schumer questioned him about during his 2006 confirmation hearings.
Another potential hurdle for Kavanaugh may be his opinions on how criminal proceedings should apply with regard to a sitting president.
Despite his involvement in the Starr investigation, Kavanaugh has written that Congress should pass a law protecting a sitting president from being subjected to civil suit. In that same paper, Kavanaugh argued that the “indictment and trial of a sitting president…would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arena” and that “even the lesser burdens of a criminal investigation…are time-consuming and distracting.”
Given Mr. Trump’s current legal challenges, Kavanaugh’s opinions on these issues are sure to be intensely scrutinized during his upcoming confirmation hearings.