Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court

Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court Andrew Nolan, Coordinator Section Research Manager Updated August 21, 2018 Congressional Research Service 7-.... www.crs.gov R45293 SUMMARY R45293 Judge Brett M. Kavanaugh: His Jurisprudence August 21, 2018 and Potential Impact on the Supreme Court Andrew Nolan, On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Coordinator Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill Section Research Manager retiring Justice Anthony M. Kennedy’s seat on the Supreme Court of the United States. [email protected] Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored For a copy of the full report, roughly three hundred opinions (including majority opinions, concurrences, and dissents) and please call 7-.... or visit adjudicated numerous high-profile cases concerning, among other things, the status of wartime www.crs.gov. detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current structure of the Consumer Financial Protection Bureau; the validity of rules issued by the Environmental Protection Agency under the Clean Air Act; and the legality of the Federal Communications Commission’s net neutrality rule. Since joining the D.C. Circuit, Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center. Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W. Bush White House, first as associate and then senior associate counsel, before becoming assistant and staff secretary to the President. Before his service in the Bush Administration, the nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years and served in the Office of the Independent Counsel and the Office of the Solicitor General. Judge Kavanaugh began his legal career with three federal clerkships—two for judges on the federal courts of appeals and one for the jurist he is nominated to succeed, Justice Kennedy. Judge Kavanaugh is a graduate of Yale College and Yale Law School. Judge Kavanaugh’s nomination to the High Court is particularly significant as he would be replacing Justice Kennedy, who was widely recognized as the Roberts Court’s median vote. Justice Kennedy was often at the center of legal debates on the Supreme Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues. Accordingly, a critical question now before the Senate as it considers providing its advice and consent to the President’s nomination to the High Court is how Judge Kavanaugh may view the many legal issues in which Justice Kennedy’s vote was often determinative. In this vein, understanding Judge Kavanaugh’s views on the law is one method to gauge how the Supreme Court might be affected by his appointment. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note at the onset that, for various reasons, it often is difficult to predict accurately a nominee’s likely contributions to the Court based on his or her prior experience. That said, the nominee is a well-known jurist with a robust record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role of the judge fairly clear. Central to the nominee’s judicial philosophy is the concept of judicial formalism and a belief that the “rule of law” must be governed by a “law of rules.” In addition, Judge Kavanaugh has endorsed the concept of the judge as a neutral “umpire.” In order to achieve this vision of neutrality, the nominee’s legal writings have emphasized (1) the primacy of the text of the law being interpreted, (2) an awareness of history and tradition, and (3) adherence to precedent. Applying these principles, Judge Kavanaugh’s views on several discrete legal issues are readily apparent, including administrative law, environmental law, freedom of speech, national security, the Second Amendment, and separation of powers. At the same time, perhaps because of the nature of the D.C. Circuit’s docket, less is known about the nominee’s views on other legal issues, including business law, civil rights, substantive due process, and takings law. This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an appellate judge have fared upon review by the Supreme Court. Congressional Research Service Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Contents Predicting Nominees’ Future Decisions on the Court ..................................................................... 6 Judge Kavanaugh’s Judicial Approach, Philosophy, and Influences .............................................. 11 The Craft of Judging ................................................................................................................ 11 Judicial Philosophy ................................................................................................................. 19 Judicial Influences ................................................................................................................... 31 Statutory Interpretation .................................................................................................................. 34 General Theory ........................................................................................................................ 35 Application and Interpretive Tools .......................................................................................... 36 Severability ............................................................................................................................. 42 Administrative Law ....................................................................................................................... 44 Justiciability Issues.................................................................................................................. 45 Statutory Review ..................................................................................................................... 48 Discretionary and Factual Review .......................................................................................... 56 Conclusion .............................................................................................................................. 58 Business Law ................................................................................................................................. 59 Antitrust Law .......................................................................................................................... 60 Labor Law ............................................................................................................................... 65 Securities Law ......................................................................................................................... 68 Conclusion .............................................................................................................................. 71 Civil Rights.................................................................................................................................... 73 Statutory Civil Rights Law ...................................................................................................... 74 Voting Rights ........................................................................................................................... 79 Conclusion .............................................................................................................................. 83 Criminal Law and Procedure ......................................................................................................... 85 Fourth Amendment.................................................................................................................. 86 Constitutional Issues in Criminal Sentencing ......................................................................... 89 Other Criminal Procedure Issues ............................................................................................ 90 Substantive Criminal Law ....................................................................................................... 92 Cruel and Unusual Punishments Under the Eighth Amendment ............................................ 93 Conclusion .............................................................................................................................

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