Is Kavanaugh the Next Scalia or Another Souter?

This article originally appeared in my Newsmax column on July 12, 2018

On Monday night, President Trump announced his pick for Anthony Kennedy’s replacement — D.C. Circuit judge, Brett Kavanaugh.

The announcement was highly anticipated, and it’s not surprising that Democratic leaders spoke out immediately against Kavanaugh’s nomination. Sen. Chuck Schumer remarked, “I’m going to fight this nomination with everything I’ve got” while Sen. Richard Blumenthal (D-Conn) stated that Americans must rise up so they could “win this battle” and derail Kavanaugh’s appointment.

Democrats would have headily opposed any candidate that Trump selected, fueled not only by their disdain for the president but also by their lingering frustration that Senate Republicans blocked President Obama’s nomination of Merrick Garland in 2016. However, Democrats should think again before so fervently attacking Kavanaugh. As compared to Trump’s other potential picks, Kavanaugh’s core beliefs, solid record, and commitment to the Constitution suggest Democrats’ fears are unbased.

Kavanaugh’s background shows his qualifications and outstanding character. He is well-adapted to Beltway culture and politics, having lived in D.C. for the better part of his adult life. A family man first and foremost, Kavanaugh has two daughters, whose basketball teams he coaches, and first met his wife while the two worked together for the George W. Bush White House. In his speech following the president’s announcement, Kavanaugh shared that his mother inspired him to follow in her footsteps and become a judge.

Trump expressed his desire to nominate someone with an Ivy-League background, and Kavanaugh meets this standard, receiving both his undergraduate and law degrees from Yale University. Kavanaugh was a clerk for Kennedy in the early 1990’s, and many believe that he will follow in the path of Kennedy in his judicial reasoning. Following his clerkship, he worked for the independent counsel that investigated President Clinton, and in 1998 co-wrote the report that served as the basis for Clinton’s impeachment.

Kavanaugh went on to work with President George W. Bush for a number of years. In 2003, Bush tapped Kavanaugh for appointment to the U.S. Court of Appeals for the D.C. Circuit. Over his 12 years as a D.C. Circuit judge, Kavanaugh has written over 300 opinions, many of them dissents that went on to be considered by the conservative Supreme Court justices in their majority opinions on the same issues. He has run in the same circles as the other justices, participating in speaking engagements with them, and was hired by Justice Kagan to work at Harvard while she was dean there.

In addition to his impressive background, Kavanaugh’s approach to interpreting the law and upholding justice is admirable. He is a textualist in the tradition of Scalia, remarking that judges “must interpret the law, not make the law.” Trump described him as “one of the finest and sharpest legal minds in our time” and said he believes that Kavanaugh would set aside his political views and apply the Constitution “as written.” Mark Tuohey, who hired Kavanaugh at the office that penned the Clinton report, said his “most vivid memory of Brett was his thoughtful approach to an issue, not impulsive, not off the cuff. He had a very engaging ability to discuss both sides of an issue when we had to resolve something.”

Kavanaugh’s record supports this praise. Though he is a devoted Catholic, he is seen as less of a social conservative and more of a pro-business, law-and-order judge. Many Republicans had hoped for a stronger social conservative, but Kavanaugh’s proven ability to restrain his personal beliefs from affecting his interpretation of the Constitution will serve as advantage in the nomination process, because Democrats will be hard-pressed to show that he is a serious threat to abortion precedent. There is no real evidence in anything Kavanaugh has said or written that he would seek to overturn Roe v. Wade. He has sided with the government in upholding abortion restrictions, but he has largely taken a middle ground approach. For example, in an ACLU case concerning a minor undocumented immigrant obtaining an abortion, Kavanaugh argued that no decision could be made until the government found the girl an adult sponsor.

Kavanaugh is a champion of small business, and many hope he will continue the deregulatory tone of the Trump administration. The NFIB has come out in support of his nomination. Kavanaugh has ruled consistently against regulatory agencies that exceed their statutory authority, and he will likely keep out overreaching policies that could hinder small businesses.

There is speculation that Kavanaugh could raise tensions on the healthcare front, specifically with regard to Medicaid and Obamacare. Kavanaugh was in line with Justice Robert’s reasoning in Sebelius, and it’s possible that he could go either way on cases addressing other aspects of the ACA. The uncertainty about Kavanaugh’s votes on these types of cases may not wholly please conservatives, but it shows his commitment to analyzing each case thoroughly and reasoning in line with what the text says, unjaded by his political beliefs.

A main concern raised by Democrats is Kavanaugh’s position on sitting presidents and ongoing criminal investigations. The 1998 Starr report on Clinton, which Kavanaugh co-wrote, laid out the grounds for impeaching President Clinton for lying to his staff and the American people. The report reasoned that a president who lied, even if not under oath, could be impeached. In a Minnesota Law Review article in 2009, however, Kavanaugh expressed regrets about the Clinton investigation. He wrote that sitting presidents should be shielded from criminal investigations while they are in office, because such investigations are a distraction to the president in fulfilling his duties to the American people. Democrats argue that this article, along with Kavanaugh’s other scholarship, demonstrates a commitment to strong executive power.

However, Democrats’ fear that Kavanaugh would protect President Trump against potential prosecution is exaggerated. Though Kavanaugh did argue presidents should not be investigated or prosecuted while in office, he said that a president could be investigated and prosecuted after his term. Kavanaugh’s disagreement with investigating a sitting president was based on his belief that impeachment was the proper process for removing a president. Kavanaugh remarked that a judge or judges should not take on the task assigned in the Constitution to Congress.

Democrats worry that because Kavanaugh is Trump’s appointee, he would be bound to support Trump in any case against the White House. But this accusation is not supported by history. In 1997, for example, the Supreme Court unanimously ruled that the lawsuit against President Clinton should be allowed to proceed while he was still in office. Justices Ginsburg and Breyer were appointed by Clinton, and still ruled against him. The Supreme Court also ruled unanimously against President Nixon in U.S. v. Nixon, though three of the justices, Powell, Blackmun, and Rehnquist were appointed by Nixon.

Like all nominees, Kavanaugh will face a hard road to confirmation, especially considering the breadth of his legal scholarship. However, his background and record show that he is an upstanding advocate of justice, and Democrats should consider the totality of the circumstances before claiming they have a smoking gun.

Special Thanks to Katherine Pickle, my third year law clerk at Emory law school who helped research, write and edit this article.