Brett Kavanaugh, whom Donald Trump has nominated to replace Anthony Kennedy on the Supreme Court, likely appealed to the president in part because of his establishment pedigree. The 53-year-old went to Yale for both college and law school, and he sits on the ultra-prestigious U.S. Court of Appeals for the DC Circuit.
He was nominated for that post in 2003 by George W. Bush, but his confirmation was held up by Democrats for three years. Democrats thought his record of partisan government service—including work for Bush and a stint helping special prosecutor Ken Starr’s investigation into Bill Clinton—rendered him unfit for judicial service.
And hey, they were probably right! Kavanaugh is a reliably conservative judge who is all but guaranteed to yank the Supreme Court in an even more rightward direction—and that clearly appealed to Trump, and his judicial handlers, too.
Here are some of his more troubling opinions.
Here’s an issue that just might come up during President Trump’s term in office, right? Well, he’s in luck, because Kavanaugh has repeatedly argued for an expansive view of presidential authority, as NPR’s Nina Totenberg wrote:
Kavanaugh has also authored or signed on to a number of opinions deferring to presidential power in high-profile cases. For instance, after the Supreme Court ruled that enemy combatants detained at Guantanamo Bay have the right to challenge their detentions in court, Kavanaugh was among the conservative judges on the D.C. Circuit who subsequently ruled in ways that critics have said actively subverted the high court’s decision, so as to render it toothless.
Finally, Kavanaugh wrote an extensive law review article in 2009 that could have implications for the special counsel investigation into Russian interference in the 2016 election. In that article, he said that after seeing firsthand the many difficult duties that a president encounters, he thinks, in retrospect, that presidents should operate free from the threat of civil suits — like the sexual harassment suit that led to Clinton’s impeachment — and that presidents should also be free from criminal investigations.
Kavanaugh was in the news recently for voting unsuccessfully to bar an undocumented girl from having an abortion. Because the conservative movement is crazy, this is actually seen by some as a mark against Kavanaugh, because he didn’t go as far as they wanted in the case. He has said in the past that he thinks Roe v Wade is a settled law, but we know that precedent rarely means much to Supreme Court justices.
He’s also taken some questionable stances on birth control, as the Washington Post reported:
Kavanaugh, a practicing Catholic, has been criticized by some social conservatives as not being sufficiently far to the right. But he wrote a strong dissent in 2015, when his fellow D.C. Circuit judges decided not to take a case involving a group of priests who objected to the Obama administration’s rules on contraceptive coverage.
Here’s how a 2015 article for E&E News opened:
A Republican operative-turned federal judge has emerged as one of the most powerful critics of President Obama’s environmental rules.
Judge Brett Kavanaugh — a 50-year-old George W. Bush administration appointee to the U.S. Court of Appeals for the District of Columbia Circuit — has pounded the administration in a series of legal opinions rebuffing some of its most high-profile air pollution rules. And because he’s widely seen as an influential voice with Supreme Court justices and a leading contender for a GOP nomination to the high court, Kavanaugh’s legal moves are being closely watched by those on both sides of the environmental debate.
Given Kavanaugh’s “track record in these important cases over the last few years, I would think him a judge that is more open to second-guessing the EPA than nearly anyone,” said Tom Donnelly, counsel at the left-leaning Constitutional Accountability Center.
Kavanaugh is a firm opponent of net neutrality rules, as Motherboard recently reported:
Along with having a record of siding with anti-abortion and anti-contraception groups, Kavanaugh, who sits on the U.S. Court of Appeals for the DC Circuit, also recently argued that net neutrality rules were unconstitutional because they violated the free speech rights of ISPs.
Don’t worry, I’m sure this will never be an issue in an increasingly digital society!
Kavanaugh will likely side with those who want to expand the ability of people to use guns in basically any situation they want to, ever, as the Los Angeles Times explained:
Kavanaugh appears to support broader gun rights under the 2nd Amendment. In 2011, he filed a 52-page dissent when the appeals court, by a 2-1 vote, upheld a District of Columbia ordinance that prohibited semi-automatic rifles and magazines holding more than 10 rounds. The judges in the majority, both Republican appointees, noted that several large states, including California and New York, enforced similar laws.
But Kavanaugh said the ban on semi-automatic rifles was unconstitutional because these weapons are in common use in this country. “As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us…. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy,” he wrote. But since the Supreme Court in 2008 established a 2nd Amendment right for individuals to have a gun at home, the justices have refused to hear a 2nd Amendment challenge to state laws or local ordinances that restrict the sale of semi-automatic weapons.
I could go on, but safe to say that a Justice Kavanaugh would be nothing good.
Update, 9:44 p.m.—Let’s throw voting rights into the mix, shall we?