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5 Flashpoints For The Supreme Court Nomination Of Judge Brett Kavanaugh

These issues are generating discussion, but they are unlikely to stop Judge Kavanaugh's confirmation.

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(Photo by MANDEL NGAN/AFP/Getty Images)

Since President Donald Trump’s Monday night announcement of Judge Brett Kavanaugh as his second Supreme Court nominee, to succeed Judge Kavanaugh’s former boss, Justice Anthony M. Kennedy, we’ve been deluged with news and opinion both for and against the SCOTUS nominee.

What are the major issues related to Judge Kavanaugh’s nomination, and are any of them serious enough to derail his confirmation? Here’s my attempt to make sense of it all, distilling the din down to five subjects that will become focal points as Judge Kavanaugh’s nomination moves forward.

(Note that none of these issues relates to his qualifications. Kavanaugh graduated from Yale College and Yale Law School, clerked for the Supreme Court, served as a Justice Department and White House lawyer, worked as a partner at Kirkland & Ellis, and has been a judge on the D.C. Circuit, the second most important court in the country after SCOTUS, for a dozen years. His credentials are superb and unquestionable.)

1. Executive branch authority and the separation of powers.

As a young lawyer, Brett Kavanaugh famously worked for independent counsel Kenneth Starr on the Whitewater/Monica Lewinsky investigation, during which Starr took the position — successfully — that a sitting president of the United States has no immunity from federal civil litigation for acts done before taking office and unrelated to the office. But since then, Kavanaugh has articulated a position more favorable to the presidency than the one taken by Ken Starr and his team back in the day.

In a 1998 article for the Georgetown Law Journal, Kavanaugh suggested that Congress adopt legislation providing that the president “is not subject to indictment or information under the laws of the United States while he serves as president.” In a 2009 article for the Minnesota Law Review, Kavanaugh argued that both civil lawsuits and criminal investigations “take the president’s focus away from his or her responsibilities to the people” — and that Congress, by statute, should “provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations.”

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Democrats have seized upon these writings to argue that Judge Kavanaugh, if he became Justice Kavanaugh, would rule in ways that would give excessive protection to President Trump — especially from the ongoing Russia investigation of special counsel Robert Mueller. But this argument is misguided, as explained by Harvard law professor Noah Feldman, who’s not exactly a fan of the Trump Administration (emphasis added):

Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

And which Congress won’t do, given the bipartisan support expressed for the Mueller investigation. As argued by Ben Wittes, also not a Trump fan, over at Lawfare:

Feldman is exactly right. In some respects, he actually understates the case….

[Kavanaugh, in his writings, has set forth] a developed statutory proposal [describing] a structure very much like that of the Mueller investigation; he ha[s] defended the very idea of such investigations; and he ha[s] described the president as having no executive privilege to assert before them.

This doesn’t sound like someone who would rule in Trump’s favor in litigation questioning the constitutionality of the Mueller investigation or its ability to take appropriate investigative steps.

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And also note that in the past, when dealing with thorny issues regarding the president’s immunity to legal process (or lack thereof), the Supreme Court has tried mightily to achieve consensus — and succeeded, as reflected in the unanimous decisions in United States v. Nixon and Clinton v. Jones. In other words, it’s highly unlikely that a Justice Kavanaugh would be the “swing vote” on Mueller issues anyway.

2. Abortion and Roe v. Wade.

In trying to argue that a Justice Kavanaugh would constitute a threat to abortion rights and overrule Roe v. Wade, Democrats point to his handling of Garza v. Hargan. In this case, Judge Kavanaugh dissented from the decision of the D.C. Circuit, sitting en banc, to allow a 17-year-old undocumented immigrant to receive an immediate abortion.

Far from taking some extreme anti-abortion position, Judge Kavanaugh tried to take a middle path that would have accommodated the different interests at stake. As a member of the three-judge panel that handled the case before it was reheard en banc, he ordered the government “to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion.” This would have allowed the minor to leave the federal shelter where she was being held and receive personal support from a sponsor during the process of obtaining an abortion.

Judge Kavanaugh’s position was more favorable to abortion than the federal government’s position, which argued that it had no duty to facilitate the minor’s abortion and that she had the option of returning to her home country (which does not allow abortion). It was also more favorable to abortion than the position of Judge Karen LeCraft Henderson, who argued that the minor had no constitutional right to an abortion, full stop (although note that Judge Henderson reached that conclusion on grounds related to the plaintiff’s status as an alien minor with no substantial ties to the United States, not on grounds related to abortion).

Because of the moderateness of his position, Judge Kavanaugh wound up being attacked from the right for being “squishy” on abortion. Even though these attacks lack merit (as Shannen Coffin explained in the National Review), they do reflect the reality that Kavanaugh faithfully applied Roe and the later case of Planned Parenthood v. Casey, without complaint.

Does Kavanaugh’s application of Roe as a lower-court judge mean that he would uphold it as a Supreme Court justice? No. But if being on record as against Roe is disqualifying for a SCOTUS nominee, there’s nothing in Kavanaugh’s opinions that would disqualify him or cause him to lose the votes of pro-choice senators like Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). And given the established protocol of nominees not stating at their confirmation hearings how they would rule on future cases, which conservatives have dubbed “The Ginsburg Rule” (based on then-Judge Ruth Bader Ginsburg’s frequent invocation of it at her own hearings), this is not going to change between now and the vote on Kavanaugh’s nomination.

Kavanaugh opponents also cite a 2017 speech in which he made comments that could be construed as critical of Roe. But the comments are not explicit enough to provide much fodder for his foes; he didn’t call Roe an “abomination,” as did fellow SCOTUS shortlister Bill Pryor (11th Cir.), nor did he dub it “inimical to the Constitution,” as did former SCOTUS shortlister Emilio Garza (5th Cir.)

Even if the speech can be read as Judge Kavanaugh criticizing Roe, it’s still far from proof that he would vote to overrule it. Roe also implicates the issue of stare decisis, or respect for precedent — and Kavanaugh, as a “judge’s judge,” places significant weight on precedent. If I had to guess, I think he would do on Roe what I’ve previously predicted Chief Justice John Roberts would do (the two judges are often compared): he would keep the famous, 45-year-old precedent on the books, to protect the Supreme Court’s institutional interests and credibility, but vote at the margins to uphold a fair number of abortion restrictions (as did Justice Kennedy; see, e.g., Gonzales v. Carhart, where he penned the majority opinion upholding the federal Partial-Birth Abortion Ban Act).

3. Health care.

Besides abortion, Democrats cite health care as an issue where Justice Kavanaugh would bring about the apocalypse. Again, these attacks are overblown — and unlikely to get much traction.

Judge Kavanaugh’s most famous opinion on health care, his dissent as to jurisdiction in Seven Sky v. Holder, was a huge disappointment to conservatives. Instead of striking down the Affordable Care Act (aka Obamacare), he concluded that his court lacked jurisdiction to hear the challenge because of the Anti-Injunction Act, which prohibits taxpayers from challenging a tax law before the government seeks to enforce the law. He held the Act applicable because he viewed the Obamacare penalty as a tax — a position later adopted by Chief Justice Roberts, also to conservatives’ chagrin.

In his second most famous opinion in the area, dissenting from denial of en banc rehearing in Priests for Life v. HHS, Judge Kavanaugh argued that the contraception mandate of Obamacare violated the First Amendment free exercise rights of religious organizations that were required to submit a form or face monetary penalties for not providing contraception to their employees. Democrats cite this as evidence that Kavanaugh would be hostile to the ACA — but again, he took a middle path. Writing in the National Review, David French actually complains that although Judge Kavanaugh reached the right result, his opinion “excessively inflated the government’s interest in facilitating access to contraceptives.”

So far from being the Grinch who’s about to steal Obamacare, Judge Kavanaugh has a mixed record on health care that defies easy characterization. As NPR health policy correspondent Alison Kodjak sums up, Kavanaugh “could very well have some decisions that please opponents of the law, and he could make some decisions that make ACA supporters really happy.”

4. Documents, documents, documents.

Because of his long record of government service, at the Justice Department, the White House, and the D.C. Circuit, Judge Kavanaugh has generated a ton of documents, many of them not yet made public. Senate Minority Leader Chuck Schumer argues that the Democrats need “access and time” to review all these documents — and that Kavanaugh’s confirmation hearings should be delayed if the documents can’t be produced promptly.

This is certainly a legitimate concern — but at this point, it’s speculative. The Trump administration is throwing ample resources at the project, including potentially hundreds of Justice Department lawyers, and it sounds like it’s doing whatever it takes to provide the Senate with timely access to the documents needed to perform its advice-and-consent function.

As I said on Twitter, responding to people arguing against nominating Kavanaugh because of his lengthy paper trail, “the tail of doc review shouldn’t wag the #SCOTUS dog.” And as any Biglaw lawyer can tell you, when document review is important enough, it gets done in the allotted time.

5. Judge Alex Kozinski and the #MeToo movement.

Speaking of speculative… some observers, including my colleague Elie Mystal in these pages, wonder whether Judge Kavanaugh might have known about the behavior of one of his ex-bosses, former Ninth Circuit Judge Alex Kozinski, that gave rise to allegations of sexual harassment against Kozinski. When rival camps were gunning for Judge Kavanaugh prior to his selection as SCOTUS nominee, a six-page opposition research document trying to tie him to the Kozinski allegations made the rounds. (Who generated that document remains unclear.)

I don’t believe there’s anything to this. As one former Kozinski clerk told Politico, “After these allegations were reported in the press last year, I spoke with various former Kozinski clerks — including Judge Kavanaugh. None of us, including Judge Kavanaugh, had heard of any of these troubling allegations.”

As noted in the Politico piece, Kavanaugh clerked for Kozinski almost three decades ago, early in Kozinski’s tenure on the bench and before he’s accused of having behaved inappropriately toward female clerks. It’s true that they worked together as “screeners” for Justice Kennedy, interviewing clerkship applicants and deciding which ones were worthy of meeting with AMK himself. But as one former Kennedy clerk informed me, this work took place over email and by phone, since the judges lived on opposite sides of the country and saw each other in person only episodically (such as at Kennedy clerk reunions held every few years). So it seems unlikely to me that Judge Kavanaugh knew about the allegations that emerged last year in the Washington Post and other publications.

But you know what? This is speculation too. At this point, senators should just wait for Judge Kavanaugh’s confirmation hearings and ask him, under oath, about this and any other subject of concern. And sexual harassment and the #MeToo movement are subjects of legitimate concern for federal judges, as noted in Chief Justice Roberts’s year-end report on the federal judiciary and the June 2018 report of the Federal Judiciary Workplace Conduct Working Group (established at the direction of the Chief Justice).

I highly doubt that Judge Kavanaugh has any personal #MeToo issues. As reported in the Times, “Of the 48 clerks who worked for Judge Kavanaugh over 12 years on the United States Court of Appeals for the District of Columbia Circuit, 25 were women, said Katie Wellington, who worked for him in 2014, when all four clerks were women, including Usha Chilukuri Vance, who now clerks for Chief Justice John G. Roberts Jr.”

That’s an extraordinary record, given the problem of insufficient gender diversity among the ranks of federal law clerks, especially clerks to Supreme Court “feeder judges” like Judge Kavanaugh. And Judge Kavanaugh’s former clerks strongly support his nomination, as you can see from this letter signed by every single Kavanaugh clerk not prohibited from signing because of their current or future employment.

[UPDATE (11:20 p.m.): As noted in this Wall Street Journal staff editorial condemning the “guilt by association” attacks on Judge Kavanaugh, the White House has issued the following statement: “Prior to the public reports late last year [about Judge Kozinski], Judge Kavanaugh had never heard any allegations of sexual misconduct or sexual harassment by Judge Kozinski.” The editorial also cites (1) a letter to the Senate Judiciary Committee signed by 18 former women law clerks to Judge Kavanaugh — again, all such clerks not precluded from signing by current or future employment — describing their “uniformly positive experiences with the Judge as a boss on issues of gender and equality in the workplace,” and (2) a WSJ op-ed by Yale law professor Amy Chua, in which the Tiger Mom praises Kavanaugh for his mentorship of women and reveals how she entrusted him with one of her own tiger cubs — her oldest daughter was scheduled to start clerking for the judge in August (but now might have to find a new clerkship, if Kavanaugh ends up relocating to One First Street as expected).]

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So there you have it: five issues that Judge Kavanaugh will have to confront during the confirmation process, none of which looks like a dealbreaker or serious threat to his nomination.

In light of the limited ammunition against Judge Kavanaugh, how should Democrats proceed? I tend to agree with Bret Stephens of the New York Times, who argues that opposing Kavanaugh tooth and nail is “likely doomed to fail and equally likely to hurt Democratic chances in the fall.”

Preliminary indications suggest that Senators Susan Collins and Lisa Murkowski will support Kavanaugh (as they did when he was nominated to the D.C. Circuit in 2006) — which means that he will almost certainly be confirmed again this time around. So fighting his nomination only to lose anyway will simply jeopardize the Senate prospects of red-state Democrats, further reducing the Democrats’ chances of retaking the chamber.

Here’s one additional point. I think many would agree with me that in an ideal world, we’d return to a time when qualified nominees would win confirmation without regard to politics — to the days when Justice Ruth Bader Ginsburg could get confirmed by a vote of 96-3, and Justice Antonin Scalia by a vote of 98-0. We won’t get there unless one party makes the decision to stand down. The Kavanaugh nomination seems like an opportune time for the Democrats to stand down, considering that he’s so likely to be confirmed and that opposing him will only hurt their electoral fortunes.

So that’s what the Democrats should do — because it’s the right thing to do, and because it’s in their self-interest as well. But is it what they will do? Probably not. The Democratic Party has a remarkable talent for self-sabotage — see, e.g., the presidential campaign of Hillary Clinton — and there’s no reason to expect it to end now.

P.S. If you’re a Yale College or Yale Law School graduate who disagreed with the anti-Kavanaugh letter from YLS students and alumni that my colleague Joe Patrice wrote about yesterday, please check out — and consider signing — this letter from Yale students, alumni, and faculty in support of Judge Kavanaugh.

P.P.S. Speaking of Kavanaugh nomination coverage by some of my fellow writers here at Above the Law, over the past few days, some readers have come to me with feedback about these posts. Friendly reminder: last October, I stepped down as managing editor of ATL, meaning that I am now involved with, and responsible for, my stories and my stories alone. Nor do I own Above the Law; I founded the site, but ATL is owned by Breaking Media, which publishes a half-dozen websites focused on different industries and professions. So while I welcome comments about stories bearing my personal byline (my contact information appears in my bio below), there is no point in contacting me about ATL stories written by others. Thank you.

Just Confirm Kavanaugh [New York Times]
Democrats Zero In on Kavanaugh’s Defense of Presidential Power [New York Times]
Kavanaugh’s Papers Don’t Help Trump Avoid Indictment [Bloomberg]
Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say? [Lawfare]
The First Untruth about Judge Kavanaugh [National Review]
Scurrilous Attacks on a Potential Trump Nominee — from the Right [National Review]
Dem push for Kavanaugh records could slow nomination [Politico]
Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request [New York Times]

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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