The Supreme Court and You: Kavanaugh Nomination

by Agnish Chakraburtty and Jacob Black, Summer 2018 InternsJul 25, 2018

On July 9th, 2018 Donald Trump nominated Brett Kavanaugh to the Supreme Court following Justice Kennedy’s announcement that he will retire at the end of July. Given the Mueller investigation and President Trump’s espoused views on issues from immigration to reproductive rights, many have asked: why Kavanaugh?

Who is Judge Brett Kavanaugh?

Judge Brett Kavanaugh, President Trump’s nominee for his second appointment to the United States Supreme Court, has operated in conservative circles throughout his career. He clerked for Justice Anthony M. Kennedy. After attending Yale Law School, Kavanaugh became a principal author of the Starr Report, a report which later came under intense scrutiny for exceeding its original scope. Following his work on the Starr Report, Kavanaugh worked on the Florida recount for the 2000 George W. Bush campaign. After George W. Bush’s victory in the 2000 election, Kavanaugh worked for a few years in the Bush White House until he was nominated to the United States Court of Appeals for the District of Columbia Circuit and ultimately confirmed in 2006.

Considering Judge Kavanaugh’s judicial ideologies, if he replaces Justice Kennedy, that would take away the only swing vote on the bench. Since Kavanaugh’s ideologies lay between Justices Gorsuch and Roberts, his confirmation to the bench would establish a solid five-person conservative voting bloc, comprised of Justices Thomas, Alito, Gorsuch, Kavanaugh, and Roberts, which greatly appeals to the Republican party that currently controls the Senate and Executive branches.

A Troubling History

Judge Kavanaugh’s judicial record is perhaps less exciting than the politics surrounding the Supreme Court bench, given that he was a circuit judge in the D.C. Circuit, which deals much more heavily with regulatory review and a somewhat less extensive focus on individual rights. However, the following examples illustrate potentially troubling areas of Judge Kavanaugh’s judicial record:

  • Separation of powers and presidential immunity: In his 2009 Minnesota Law Review article, Separation of Powers During the Forty-Fourth Presidency and Beyond, Kavanaugh wrote that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors.” During most presidencies this law review article would hardly warrant more than a raised eyebrow. However, in the context of the ongoing investigation into the Trump campaign by Special Counsel Robert Mueller there are serious questions of legitimacy with Kavanaugh’s nomination. Given the possibility that the investigation could lead to a case before the Supreme Court as to whether Trump may be compelled to answer the special counsel’s questions, it is troubling that Kavanaugh has espoused the view that the President should essentially be unaccountable for criminality beyond impeachment proceedings during his term of office.
  • Employment and employment discrimination: Kavanaugh has not taken a clearly conservative or liberal approach when it comes to civil rights issues broadly. In employment discrimination cases he has ruled both in favor of employees and in favor of employers. For example, in Ayissi-Etoh v. Fannie Mae (2013), Kavanaugh in concurring on the reversal of summary judgment in favor of the employer wrote “But, in my view, being called the n-word by a supervisor—as Ayissi-Etoh alleges happened to him—suffices by itself to establish a racially hostile work environment.” However, in employment cases more generally, Kavanaugh tends to favor employers over employees. For example, in Verizon New England v. NLRB, Kavanaugh upheld an arbitration decision that found that a “union’s waiver of its members’ right to picket…waive[d] [the employees’] right to visibly display pro-union signs in cars on Verizon property.”
  • Reproductive Rights: Although Kavanaugh recognized Roe v. Wade as binding precedent during his 2006 confirmation hearings, his record on reproductive rights is not ideal. One example of his temperament on the issue of reproductive rights comes from his dissenting opinion (an opinion opposed to the majority decision) in Garza v Hargan (2017). The case concerned whether a pregnant 17-year-old being held by immigration authorities was allowed to leave their custody to obtain an abortion. The majority upheld the 17-year-old’s right to access reproductive services while in government custody. Kavanaugh’s dissent gives a great deal of insight into his personal beliefs on reproductive rights because he labelled the young woman’s request “abortion on demand” and directly attacked her agency by pointing to her age, immigration status, and more as factors in denying access to reproductive health services.
  • Environmental regulation: Given the large volume of regulatory cases that comes across the DC circuit, Kavanaugh has a long track record on environmental issues, specifically ruling against EPA regulatory bodies. A longtime critic of EPA regulations, Kavanaugh’s personal judicial philosophy can be summed up as unwilling to rule in favor of environmental regulation if clear congressional rules are not present. The problem with this philosophy lies in the fact that Congresses since the early 1990s have failed to update environmental policies. Thus, there is limited statutory language around environmental regulation, which gives environmental regulatory agencies limited tools to enforce regulation, putting these agencies at a significant disadvantage.
  • Campaign finance and consumer protection: In Bluman v. FEC, a decision written by Kavanaugh himself, he upheld the premise that restricts foreign investment in US elections. He has also been critical of Consumer Financial Protection Bureau, the regulatory bureau established after 2008 to protect against predatory banking practices, and is seen as being so in favor of corporate interests that he can be expected to hand down decisions that hamper labor unions.

What Happens Next?

Kavanaugh definitely comes off as a polarizing candidate for the bench, but his nomination does not secure his confirmation. There are still steps in the confirmation process where the electorate can be proactive. First, the electorate can make their voices heard when the Senate Judiciary Committee reviews Kavanaugh’s nomination. After the review, the Judiciary Committee will vote on the nominee and send its recommendation to the full Senate for approval or rejection of the nominee.

Currently, the final vote is expected to split down the party line with a slim Republican majority pushing Kavanaugh through with 51 votes against the combined 49 votes of Democrats and Independents. However, 8 Senators are strongly considering crossing the party line so Kavanaugh’s confirmation is far from a foregone conclusion.

So how can the electorate be active in Brent Kavanaugh’s confirmation and make their voices heard? It’s simple:

  • Register to vote
  • Call your senators office and voice your approval or disapproval (they will listen since the Senate is so evenly split)
  • Make it known that you are registered to vote and will exercise your right to vote them in or out come the next election depending on your preference and the result of the confirmation process.
  • After the confirmation process, if it
    • Went your way: Vote to keep your Senator in the Senate
    • Did not go your way: Vote your Senator out of the Senate

Your vote matters more than ever, and the increasing polarization of the country makes your voice even more powerful and likely to be heard.