On Monday night President Donald Trump nominated Court of Appeals D.C. Circuit Judge Brett Kavanaugh to the United States Supreme Court. By Tuesday, people were flooded with press releases, statements, and hot takes. For Wisconsin conservatives, I try to boil it down to the six things you need to know about him. Here we go:
1. Kavanaugh is exceptionally well-qualified.
His background is extensive and serves as perhaps the poster child for someone to serve on the United States Supreme Court. He has undergraduate and law degrees from Yale. He clerked on the U.S. Supreme Court for Justice Kennedy (fun fact: he was a co-clerk with Gorsuch and went to the same high school.)
Kavanaugh has deep experience working in the executive branch, most prominently in the George W. Bush administration as Senior Associate Counsel to the President and Staff Secretary to the President. He has proclaimed that this has helped shape his thinking on overreach of the growth of the administrative state.
In 2006, he was appointed by President Bush – and confirmed by the U.S. Senate 57-36 with several Democrats in support– to the U.S. Court of Appeals for the D.C. Circuit., often known as a feeder to the Supreme Court (he followed in the footsteps of Scalia, Thomas, Roberts, Ginsburg). He has been on the bench for nearly 12 years, authoring over 300 opinions. He has a long paper trail; there will be no surprises with Kavanaugh.
Yet, with such an impressive resume, it is worth noting that he is 53 years old. With Gorsuch at 50, the confirmation of Kavanaugh could allow the two Trump appointees to serve for around 30-35 years on the Supreme Court.
2. His judicial philosophy respects the text of the Constitution and limits on government.
His opinions, speeches, and writings will be pored over in the coming days and weeks. I confess to only reading a (very small) fraction of them. A recent speech he gave at a George Mason, I think, properly explains his judicial philosophy. In praising the late Justice Scalia, he laid out his vision of a judge:
The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.
He went on to declare that separation of powers and federalism are “essential to protecting individual liberty” and it is the courts role to enforce those limits on government.
3. How has this translated into his cases? Here’s a sampling:
Religious freedom: In a case called Priests for Life v. HHS, Judge Kavanaugh voted to strike down the Obama Administration’s contraception mandate. He wrote:
When the Government forces someone to take an action contrary to his or her sincere religious belief (here, submitting the form) or else suffer a financial penalty (which here is huge), the Government has substantially burdened the individual’s exercise of religion.
He’s also written, although in dissent, that the Washington D.C. transit authority cannot ban religiously themed advertisements, including a Christmas ad, on grounds that it would be religious discrimination.
Before he was a judge, Kavanaugh authored a brief in support of a Texas high school’s policy permitting student prayer at football games. He was also reportedly the Federalist Society’s co-chairman of its “School Choice Practice Group,” working on school choice litigation in Florida.
2nd Amendment: While a majority of a panel in the D.C. circuit voted to uphold Washington D.C.’s ban on the possession of semi-automatic rifles, Judge Kavanaugh dissented. He wrote in dissent: Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.
Rolling back the administrative state: Kavanaugh has expressed skepticism at the so-called Chevon deference of courts relying on agency interpretations of federal law. He has raised concerns that this threatens the rule of law and separation of powers, essentially giving unchecked lawmaking powers to bureaucrats.
4. Major players in the conservative movement – especially in Wisconsin – are supporting him.
As President Trump no doubt realizes, nothing unites the conservative movement like judges. Conservative judges. This is what makes Trump’s SCOTUS list – produced by the Federalist Society – one of the smartest political decisions in recent history. Sticking to the list, Trump produced a nominee that has support from a wide-range of conservatives: Americans for Prosperity, National Review, Charlie Sykes, Wisconsin conservative talk radio, Wisconsin Right to Life, National Rifle Association, Judicial Crisis Network, Breitbart, WILL President Rick Esenberg, Senator Ron Johnson, Governor Scott Walker, and Senate candidates Kevin Nicholson and Leah Vukmir.
Some on the right have complained about Kavanaugh embracing Obamacare while on the court. As my boss Rick Esenberg explained on Facebook, this isn’t accurate. Judge Kavanaugh actually voted, in 2011, to strike down the Obamacare individual mandate but questioned whether the D.C. Circuit Court, at that moment, had jurisdiction over the claim. Kavanaugh has said that Obamacare is “a law that is unprecedented on the federal level in American history” and if Obamacare is upheld, it would “usher in a significant expansion of congressional authority with no obvious principled limit.” More can be read on this at the Federalist.
5. The confirmation process will be short – but very contentious.
Republicans likely have no margin for error. If Senator John McCain is unable to vote due to brain cancer, they have a 50-49 majority. With the filibuster no more for judicial appointments, Republicans must keep everyone on board. Democrats could make three plays:
Paint Kavanaugh as a social issue extremist. They will try to pick off one of the moderates in the Senate – such as Senators Lisa Murkowski (R-AK) or Susan Collins (R-ME) by raising fears that Kavanaugh will be tipping the court to the right on a host of social issues. This could mean, in the future, there would be enough votes to strike down Obamacare (see here for more info) which means, they would say, children with pre-existing conditions will no longer have health insurance. In addition Roe v. Wade will be reversed and abortion will be illegal. Of course the truth is more complicated than that as a Court would likely incrementally weaken both laws.
Kavanaugh will protect Trump from impeachment! They will try to pick off Senators who are concerned about Trump (Senators Rand Paul or Jeff Flake). Vox’s Ezra Klein and others on the left are circulating that a Minnesota Law Review article by Kavanaugh indicates that Trump picked him because Kavanaugh would protect him from criminal investigation. A theory that National Review’s David French takes apart.
Delay..delay…delay. The Democrats are more likely to try to delay the hearings as long as possible in the hopes of pushing the vote past Election Day. They will likely try to get privileged documents from the Ken Starr investigation and his time as an attorney in the White House. This may require releasing classified information from the George W. Bush Presidential Library.
The truth is while the media focuses on whether Republicans will be unified, the Senate Democrats have much more to worry about. All Republicans voted for Justice Neil Gorsuch in addition to three Democrats, Senators Joe Manchin (D-WV), Heidi Heitkamp (D-ND), and Joe Donnelly (D-IN) supporting confirmation. And all are running for re-election in 2018 – perhaps with a confirmation vote just weeks before Election Day – in states where President Trump won big in 2016 (56 percent in IN, 67 percent in WV, and 63 percent in ND). A “No” vote could seal their fate for re-election.
6. Judge Kavanaugh was a big Marquette basketball fan growing up and used Dez Bryant’s non-catch as a metaphor for his judicial philosophy.
Because all roads must lead back to Wisconsin, it is worth noting that Judge Kavanaugh has expressed that one of his favorite teams growing up was the Al McGuire Marquette basketball teams.
In addition, during a March 2015 speech at Marquette Law School (watch/listen here) on separation of powers, he won the audience over by using Dez Bryant’s non-catch as an example of his judicial philosophy. The referees applied the previously established rules to Dez Bryant’s “catch” to determine that he had not come down with the ball. The result may upset people – and the referees may not like the decision – but they applied the law to the play.
CJ Szafir is the Executive Vice President of the Wisconsin Institute for Law & Liberty (WILL). These views are his own and do not represent an official opinion of WILL.