Brett Kavanaugh Supported Broad Leeway For Presidents Under Investigation
Over a dozen years as a judge on the federal appeals court in Washington, D.C., Brett Kavanaugh has weighed in on controversial cases involving guns, abortion, health care and religious liberty.
But after Kavanaugh emerged on President Trump's shortlist for the Supreme Court, a suggestion the judge made in a 2009 law review article swiftly took center stage:
"Provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations," Kavanaugh proposed.
The judge emphasized that no one is above the law, but he pointed out that the Constitution already provides a solution if there's a scoundrel in the White House.
"If the president does something dastardly, the impeachment process is available," he wrote.
That matters now — especially to Democrats mulling whether to oppose Kavanaugh's nomination to the highest court in the nation — because Trump is facing a special counsel probe into Russian election interference in 2016 and whether anyone in Trump campaign took part.
Kavanaugh already has checked virtually every box in the conservative legal establishment at only 53 years old.
From serving as a clerk to Justice Anthony Kennedy, whose shoes he's in line to fill on the Supreme Court, Kavanaugh went on to serve as an aide to Ken Starr, the independent counsel who probed President Bill Clinton's finances and his relationship with intern Monica Lewinsky.
Then, in 2000, Kavanaugh was part of an energetic pack of Republican lawyers who traveled south and worked nonstop to help then-Texas Gov. George W. Bush during the critical Florida election recount.
That service led to top posts in President Bush's White House as a lawyer and as staff secretary, the clearinghouse official who handles virtually every important document the president touches.
Years later, after the Senate confirmed him 57 to 36 for a lifetime-tenured judgeship, Kavanaugh would write in the Minnesota Law Review that the experience in the executive branch made him a better and more independent judge.
It also informed many of his rulings on executive power, where he largely has backed the president's authority to hire and fire officials at government agencies and offered his support to the White House and military commission process amid challenges from detainees.
"He has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases," according to Adam Feldman of the Empirical SCOTUS blog.
Left-leaning interest groups like Demand Justice have signaled they want to make the forthcoming Supreme Court confirmation hearing about two big things: abortion rights and the Affordable Care Act, the signature legislative achievement of the Obama presidency.
Kavanaugh has a record on both.
In his 2006 confirmation hearing for the D.C. Circuit, New York Democratic Sen. Charles Schumer asked Kavanaugh: "Do you consider Roe v. Wade to be an abomination?"
Kavanaugh replied: "I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court."
More recently, in a case involving a pregnant 17-year-old in immigration custody in Texas, Kavanaugh dissented from a court ruling that ordered the girl be released from detention to obtain an abortion.
Kavanaugh said the "radical" majority had essentially created a "constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand."
On the Affordable Care Act, also known as Obamacare, Kavanaugh wrote in 2011 that a federal law known as the Anti-Injunction Act, which covers tax issues, meant that the court lacked the ability to consider whether the law's individual mandate violated the Constitution.
A divided Supreme Court ultimately upheld that mandate as a tax.
Justin Walker, a law professor at the University of Louisville who clerked for both Kavanaugh and Kennedy, said Kavanaugh will "never, ever go wobbly" and deviate from conservative principles.
Walker said Kennedy's replacement will be much more conservative, foreshadowing big changes in issues including affirmative action, school prayer and guns.
"I predict an end to affirmative action, an end to successful litigation about religious displays and prayers, an end to bans on semi-automatic rifles, and an end to almost all judicial restrictions on abortion," he said.
One measure of a judge's influence is how many of his clerks wind up working in the Supreme Court. By that measure, Kavanaugh packs a punch. His clerks routinely find themselves working at the high court, not just for Kennedy and Chief Justice John Roberts, but also for justices appointed by Democratic presidents.
In the federal courthouse in Washington, Kavanaugh has developed a reputation for cracking jokes, talking sports and showing up at events to support his colleagues.
He has likened himself to the official behind home plate, calling balls and strikes.
"To be a good umpire and a good judge, don't be a jerk," Kavanaugh said in a speech three years ago. "In your opinions, demonstrate civility — to show, to help display that you're trying to make the decision impartially, dispassionately, based on the law and not based on your emotions."
Copyright 2021 NPR. To see more, visit https://www.npr.org.