On Monday, President Donald Trump announced his nominee to replace Justice Anthony Kennedy on the Supreme Court, Brett Kavanaugh.
Here are five things to know about the judge.
1. Ken Starr and Anthony Kennedy.
Brett Kavanaugh, a 53-year-old judge at the U.S. Court of Appeals for the District of Columbia, may not be a good “diversity” pick in the terms of the late Justice Antonin Scalia, but he is well qualified for the nation’s highest Court.
Born in Washington, D.C., and raised in Bethesda, Md., Kavanaugh is a Roman Catholic, like four other members of the Court. His mother served as a Maryland state Circuit Court judge, and he graduated from Georgetown Preparatory School. Kavanaugh graduated from Yale University in 1987 and Yale Law School in 1990. He clerked for Supreme Court Justice Anthony Kennedy, so it may be poetic for him to replace the justice.
Most controversially, Kavanaugh worked for Ken Starr, first when Starr was the solicitor general of the United States and later when Starr served as independent counsel in the investigation of Bill Clinton and his affair with Monica Lewinsky.
Kavanaugh helped write the Starr Report to Congress, and argued for the impeachment of Bill Clinton. Later, he argued his first and only case before the Supreme Court when he asked it to disregard attorney-client privilege in relation to the investigation of the death of Vincent Foster. The Court rejected Kavanaugh’s arguments by a vote of 6-3.
By choosing Kavanaugh, Trump sent a powerful message about Bill Clinton’s past sins.
2. Curbing the administrative state.
Kavanaugh has a solid record in curbing the excesses of President Barack Obama’s Environmental Protection Agency (EPA). Most notably, in White Stallion Energy Center v. EPA, Kavanaugh dissented from a ruling that upheld the EPA’s decision not to consider cost when determining whether it is “appropriate and necessary” to regulate power plants. In the Supreme Court decision Michigan v. EPA (2015), Justice Antonin Scalia quoted Kavanaugh’s dissent in holding that the EPA’s refusal to consider costs was unreasonable.
In a powerfully originalist move, Kavanaugh attacked the EPA’s attempt to adapt the language of the Clean Air Act (1970) to permit regulation of an environmental program that Congress did not anticipate at the time the act was signed into law. If the EPA could “exceed its statutory authority” in this case, then other agencies would be able to “adopt absurd or otherwise unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness.” Another Scalia opinion relied on this reasoning.
Not all of Kavanaugh’s cases involving the EPA curbed its executive overreach, but these moves are notable.
Also notable, in October 2016, Kavanaugh established that the Consumer Financial Protection Bureau (CFPB) was unconstitutional, and made the CFPB director removable by the president of the United States. While that decision was later reversed in January of this year, his decision is promising.
3. Religious freedom.
In Priests for Life v. Health and Human Services (HHS), Kavanaugh defended the rights of the pro-life group Priests for Life against the Obamacare contraception mandate. While the 7th Circuit ruled for HHS, one of the lawyers challenging the mandate called Kavanaugh’s dissent “pure perfection.”
Some have attacked Kavanaugh for conceding in Priests for Life that the government had a compelling interest in facilitating women’s access to contraception, citing Justice Anthony Kennedy’s ruling in Burwell v. Hobby Lobby (2014). National Review‘s Justin Walker pointed out, however, that by respecting Kennedy’s view on the issue and explaining why the Obama policy still violated the Religious Freedom Restoration Act, Kavanaugh likely helped win Kennedy’s vote to overturn the decision of the D.C. Circuit Court.
4. Defending the Second Amendment.
After Heller v. District of Columbia (2011), Kavanaugh opposed a D.C. city law banning possession of semi-automatic rifles and requiring registration of all firearms. Kavanaugh extended Heller‘s ruling that handguns — even semi-automatic ones — are constitutionally protected. He argued that “there is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles.”
“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. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are,” he argued.
“It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)”
The case involved whether the Obamacare individual mandate was a legitimate exercise of Congress’ power to regulate interstate commerce. Seven-Sky upheld the mandate’s constitutionality. While Judge Kavanaugh dissented, he did not argue against the mandate.
“For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions,” Kavanaugh wrote. “By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.”
He argued that a tax cannot be challenged until it has been assessed and paid, therefore the individual mandate could not be challenged prematurely. Courts should be “cautious about prematurely or unnecessarily rejecting the Government’s Commerce Clause argument,” because “the elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care,” which he described as “vital policy objectives.”
Kavanaugh further argued that Obamacare “was enacted, moreover, after a high-profile and virgorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.”
Roberts echoed this exact argument in upholding Obamacare in 2012. While the 2017 Republican tax reform bill helped undermine Obamacare by striking down the individual mandate, many conservatives rightly consider Roberts’ ruling a betrayal.
It is arguable that Kavanaugh and Roberts were following a form of deference to Congress in these decisions, but they both fundamentally reinterpreted the Obamacare mandate as a tax, after it was passed by Congress as a regulation, not a tax. This goes against the fundamental principles of Originalism, and might be an excellent argument against confirming Kavanaugh.
While Trump’s pick has many positive attributes, Republicans might want to voice concerns over Kavanaugh’s Obamacare argument.