by Gabriel Malor · July 10, 2018
Judge Brett Kavanaugh is a thoroughly Washingtonian choice for the Supreme Court. He grew up in Washington, D.C. After law school (Yale) and clerkships (3rd and 9th Circuits, and Justice Anthony Kennedy), he worked for Ken Starr first at the Office of the Solicitor General and later in the independent counsel’s investigation into former President Bill Clinton. He had a brief stint at the D.C. office of mega-firm Kirkland & Ellis before joining former President George W. Bush’s White House for five years. That ultimately earned him a nod for a judgeship on the U.S. Court of Appeals for the D.C. Circuit. In other words, he’s well-connected to the Bush machine, and therefore an unexpected choice for President Trump.
There are some things that may have put Kavanaugh over the top for Trump. First, Kavanaugh has expressed disagreement with the now-lapsed independent counsel statute as a violation of the separation of powers—just like Justice Antonin Scalia did. Of note, the current special counsel regulations that Robert Mueller is operating under to investigate connections between Russia and the Trump campaign are modeled partly on the independent counsel statute. Like Scalia, Kavanaugh has endorsed a broad view of executive power as specifically vested in the person of the president.
Next, as noted above, Kavanaugh “looks the part,” which has been one factor for many of Trump’s judicial and executive branch picks. White House leaks suggested that Trump was looking to appoint a justice from either Yale or Harvard law schools, and Kavanaugh fits the bill (Yale Law School Class of 1990).
Additionally, there are two strategic reasons that a Kavanaugh pick makes sense at this time. Kavanaugh has ten solid years of service at the D.C. Circuit, but this court has a somewhat different case load than the numbered circuit courts of appeals. Because of its location, about two-thirds of D.C. Circuit cases involve the federal government. As a result, Kavanaugh has quite a pedigree sorting out disputes of federal law, regulation, or policy. But this has also insulated him, to some degree, from the sorts of cases that arise in the numbered circuits, where litigation involving the First, Second, Eighth, and Fourteenth Amendments are more common.
The other strategic reason Trump may have decided to choose Kavanaugh now instead of, say, Judge Amy Coney Barrett, is Trump may be keeping Barrett in reserve for when (eventually, one assumes) Justice Ginsburg must be replaced. Replacing a female justice with another woman is the sort of “looks the part” thinking that appeals to Trump, and it would neutralize an easy and early criticism from Democrats should Ginsburg step down. Trump may also be waiting to see if he gets a Senate more friendly to the “extremely Catholic” Barrett.
There are some things to watch for in Kavanaugh’s upcoming hearings. Special note should be given to the fact that Kavanaugh has not had to rule on immigration removal cases because there is not an immigration court in the District of Columbia. Immigration is therefore a critical gap in Kavanaugh’s resume, and these cases regularly appear on the Supreme Court docket.
Also, Kavanaugh clerked for Judge Alex Kozinski of the U.S. Circuit Court of Appeals for the 9th Circuit. Kozinski abruptly resigned in disgrace last year after more than a dozen former clerks and staffers came forward with allegations of sexual misconduct. Kozinski blamed it on his “broad sense of humor” and said it was not his intent to make anyone uncomfortable. Expect at least one Democrat on Senate Judiciary to ask Kavanaugh what he knew about Kozinski and when.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
Washington Examiner · by Gabriel Malor · July 10, 2018