Meet Trump’s Supreme Court Pick: Brett Kavanaugh
WHY YOU SHOULD CARE
Because he could decide the fate of Roe v. Wade.
By Daniel Malloy
Update: On July 9, 2018, President Donald Trump nominated Brett Kavanaugh to fill Justice Kennedy’s slot on the Supreme Court.
For three decades, one man has held down the center of an often divided U.S. Supreme Court: Justice Anthony Kennedy. In our Life After Kennedy series, OZY takes a look at what the court will look like without him.
The last thing he wanted was for the whole world to see his work. Brett Kavanaugh, a hotshot young attorney in the office of independent counsel Kenneth Starr, was a lead author of the infamous “Starr Report” — a 445-page catalog of the offenses of President William J. Clinton, down to the most salacious detail. Kavanaugh and a colleague wanted to submit perjury and obstruction of justice evidence to Congress, but leave out the narrative of the relationship with intern Monica Lewinsky — which Kavanaugh worried would prompt others to paint Starr as “sex-crazed,” according to journalist Bob Woodward’s Shadow: Five Presidents and the Legacy of Watergate. Starr overruled his protégé. The ensuing frenzy around the tawdry passages proved Kavanaugh right.
Today, Kavanaugh, 53, is a judge on the U.S. Court of Appeals for the District of Columbia Circuit and a contender for a spot on the U.S. Supreme Court. That is, if an opening arises and a president facing his own sex scandal and special counsel investigation picks him. Kavanaugh, who is on Donald Trump’s public list of 25 potential nominees, brings considerable experience in the Republican legal trenches and a flair for the bold in his judicial opinions during more than a decade on the premier steppingstone to First Street. He’s also survived a grueling Senate confirmation fight that stretched over nearly three years — good prep should a Supreme test be headed his way.
[Kavanaugh] really likes a lot of power in the president. He doesn’t like as much power in administrative agencies.
Lisa Heinzerling, Georgetown Law
Kavanaugh grew up in suburban Maryland, where his mother was a prosecutor and then a trial court judge in an era when women were a rare sight on the bench. An only child, he attended the elite Georgetown Prep School, followed by Yale for his undergraduate and law degrees. A Supreme Court clerkship with Justice Anthony Kennedy — the man he could replace — was part of a sprint through the Republican legal ranks. He worked for the Office of the Solicitor General under George H.W. Bush, Starr’s team, the 2000 Florida election recount and the George W. Bush White House. There he worked in the counsel’s office, vetting a stream of conservative judicial nominees, and became Bush’s staff secretary — a powerful post that manages the paper crossing the president’s desk.
Helgi Walker, a partner at Gibson, Dunn & Crutcher in Washington and a friend of Kavanaugh’s for 25 years, says that in a field of high achievers, Kavanaugh stood out for his modesty. “There are a lot of people in Washington who like to hear themselves talk,” Walker says. “Brett is not one of those people.”
In 2003, Bush made Kavanaugh one of the youngest judges ever to be nominated to the D.C. Circuit Court of Appeals, amid a standoff with Senate Democrats over nominees they considered extreme. Given Kavanaugh’s GOP track record and lack of judicial experience, Sen. Chuck Schumer, D-N.Y., called the nomination “not just a drop of salt in the partisan wounds; it is the whole shaker.” Kavanaugh, calm and poised during his hearings, dodged questions about White House debates on judges and torture. He said he would follow Supreme Court precedent on abortion rights but wouldn’t give a personal view on the Roe v. Wade decision. He wasn’t confirmed until 2006.
Outside the courtroom, Walker says Kavanaugh is a burger, beer and hockey kind of guy who’s often ferrying his two grade-school daughters to sports practices. He recently told the conservative Heritage Foundation that he’s not always able to leave work behind when he coaches Catholic Youth Organization girls basketball. In one practice, he yelled from the sidelines: “You can’t dribble through a zone press! You’ve got to pass the ball!” The gym fell silent until one of his players spoke up: “Oooh, he’s using his judge voice on us now.” The rest of the team burst out laughing.
In speeches, Kavanaugh says judges should not be coaches, but rather umpires calling balls and strikes — an opinion echoed by Chief Justice John Roberts during his confirmation hearing. Kavanaugh praises the judiciary’s turn toward textualism in recent decades and says judges err when they put their own views over what’s written in black and white.
Still, Kavanaugh — whose style is compared by Georgetown Law professor Lisa Heinzerling to that of the famed textualist Justice Antonin Scalia — is known to express his views in vividly written dissenting opinions, even if he has yet to use “legalistic argle-bargle” or “jiggery-pokery” as the late Scalia did. “I can’t tell whether he’s kind of auditioning for the Supreme Court, but he certainly does write ambitious opinions and ones that are maximalist,” Heinzerling says. “They do more than they need to do, and they go further than they need to go in arguing for changes in current law.”
For example, Kavanaugh this year declared that the Consumer Financial Protection Bureau is unconstitutional, given the agency’s independence and unitary structure, and he has voted repeatedly to slap back aggressive regulations from Barack Obama’s Environmental Protection Agency. Yet in voting to strike down the Affordable Care Act in 2012, he wrote that “the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
“He really likes a lot of power in the president,” says Heinzerling, who worked for the EPA under Obama. “He doesn’t like as much power in administrative agencies.”
Speaking at the Heritage Foundation, Kavanaugh said that despite the Senate confirmation grief he took for it, his five and a half years in the White House provided ideal training for the D.C. Circuit’s bevy of cases on separation of powers. “Working at the White House, in my view, gives you the background and fortitude to say no to the government when the stakes are high,” Kavanaugh said. He could soon be facing the highest stakes of all.