Brett Kavanaugh Supported Broad Leeway For Presidents Under Investigation

Jul 10, 2018
Originally published on July 11, 2018 9:37 am

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.

Conservative star

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.

Lightning-rod issues

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.

Never "wobbly"

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."

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President Trump has made his choice to fill a second seat on the U.S. Supreme Court. His name is Judge Brett Kavanaugh. Here's the president in his prime-time address last night explaining why he believes Kavanaugh is the best pick.


PRESIDENT DONALD TRUMP: He's a brilliant jurist with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.

MARTIN: If confirmed, Kavanaugh would replace Justice Anthony Kennedy, who announced his retirement a couple weeks ago. Although, it's looking like Kavanaugh could be in for a tough confirmation hearing with several Democrats already lining up against him. NPR justice correspondent Carrie Johnson joins us now. Hey, Carrie.


MARTIN: What should we know about Brett Kavanaugh?

JOHNSON: He's young. He's only 53 years old. He was first appointed to the bench by President George W. Bush. And he's been sitting on the U.S. Court of Appeals for the D.C. Circuit for about 12 years. Brett Kavanaugh has checked virtually every box in the conservative legal establishment. Name something happened in the '90s, 2000s - he was involved. He was a clerk to Justice Anthony Kennedy. He was an aide to independent counsel Ken Starr, who was investigating President Bill Clinton's relationship with that intern, Monica Lewinsky.

Brett Kavanaugh was also one of many lawyers who helped George W. Bush win the Florida recount fights in 2000. And after that, he joined George W. Bush's White House, first as a lawyer, then as staff secretary - sounds like a boring job; actually really important because he was touching every document that gets to the president. Brett Kavanaugh, even though he was super well-known in conservative circles, was not on Donald Trump's first list for the Supreme Court, but he's a favorite of the White House counsel, Don McGahn, and was added to the list later on.

MARTIN: So he's been in D.C. a long time. He's got a long paper trail, has made a lot of decisions from the bench. You've had a chance to dig into his record. What stands out to you?

JOHNSON: Well, importantly, Brett Kavanaugh said in the East Room of the White House last night, if he's confirmed to the Supreme Court, he'll keep an open mind in every case. But there are real things we can discern from reading his 300 or so opinions on the D.C. Circuit. One is that he has a really strong view of executive branch power. In fact, in 2009, he wrote a law review article that says a sitting president should be able to defer criminal investigations and prosecutions until after that president leaves office. Now, Kavanaugh said in the law review article if the president does something dastardly, there's always the impeachment process. Now, why does this matter? Because the current president, Donald Trump, is under - is the subject of a criminal investigation by the special counsel, Robert Mueller, who wants to interview and perhaps eventually subpoena President Trump.

MARTIN: Democrats are raising all kinds of concerns right now that another conservative on the court could mean the federal law legalizing abortion could be in jeopardy. Judge Kavanaugh has written opinions on abortion cases in the past. What do they tell us about where he stands on this?

JOHNSON: Yeah, the justice that Brett Kavanaugh is in line to replace, Anthony Kennedy, was pretty conservative but had sided with abortion rights supporters in at least one major case. Brett Kavanaugh's records suggests he's pretty conservative, too. Back in 2006, during his first confirmation hearing to join the federal appeals court, Kavanaugh told Democrats in the Senate that Roe v. Wade was binding precedent and he'd follow it fully. But more recently, he dissented in a case about a pregnant 17-year-old in immigration detention. She wanted to be released to get an abortion, Rachel. Ultimately, the majority of his federal appeals court ruled in favor of that 17-year-old, but Brett Kavanaugh said the court was acting in a radical fashion. He went so far as to say the majority of the court created a new right for unlawful immigrant minors in government detention to obtain an immediate abortion on demand. That language is raising a lot of red flags for abortion rights supporters right now.

MARTIN: So Democrats are likely going to seize on that, I imagine. They already are. They're also going to seize on Kavanaugh's view of executive power, especially since he's written this thing in the past, about the fact that investigations are a distraction that's not good for the public, investigations around presidents. Is he likely to get any Democratic support?

JOHNSON: You know, this is so remarkable. Even before Kavanaugh was announced as the pick yesterday, at least one important senator, Bob Casey of Pennsylvania, came out and opposed whomever Donald Trump would pick. Democrats led by Minority Leader Chuck Schumer of New York have come out in full force. Many have already announced their opposition to Kavanaugh. That said, Kavanaugh is not wasting any time. He's meeting with senators starting today. He's going to be accompanied by a familiar face to many of those lawmakers, former Arizona Senator Jon Kyl, who is highly respected and has a very good relationship with Dianne Feinstein, the top Democrat on the Senate Judiciary Committee who's likely to be grilling Brett Kavanaugh before too long in that confirmation hearing.

MARTIN: The White House would like this whole deal to be done before the midterms, right? They would like Kavanaugh in place by October. Does that seem likely?

JOHNSON: Yeah. Charles Grassley, who runs the Senate Judiciary Committee - a Republican from Iowa - says he's going to take his time in these hearings and be deliberate. There's always a period where the record of the nominee needs to be reviewed because Brett Kavanaugh has been on the bench for so long and because he has that experience in George W. Bush White House. There's going to be a lot of paper to review. But Republicans who are friendly with the White House think that given the record of past nominees and track record of how many days it takes from nomination to confirmation, it may be possible for Kavanaugh to be on the bench - on the bench of the U.S. Supreme Court by early October. The court has already announced its first case. It involves a timber company where some company land was designated by the federal government as a habitat for the dusky gopher frog. So that may be Kavanaugh's first case if he gets confirmation.

MARTIN: All right. NPR justice correspondent Carrie Johnson - thanks, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.