ALLIANCE FOR JUSTICE Kavanaugh Brett SupremeCourtNomineeReport: FirstLook WWW.AFJ.ORG CONTENTS

EXECUTIVE SUMMARY, 1 HEALTH CARE, 2 Reproductive Rights, 3 Presidential Power, 5 Consumer Rights, 7 ENVIRONMENT, 8 WORKERS’ RIGHTS, 9 CIVIL RIGHTS, 10 GUN Violence, 12 IMMIGRATION, 12 NATIONAL SECURITY AND CIVIL LIBERTIES, 13 CRIMINAL JUSTICE, 15 Conclusion, 16

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would show the independence of thought necessary for a seat” as a EXECUTIVE federal judge.1

It took three years for Kavanaugh, a SUMMARY highly partisan and controversial nominee, to be confirmed to the D.C. On June 27, 2018, Justice Anthony Circuit seat. Prior to his nomination, Kennedy announced his intention to Kavanaugh’s career as a partisan retire from the U.S. Supreme Court on political operative blossomed. He July 31. The announcement created an worked for Republicans on the election opportunity for President Donald Trump recount at the heart of the Bush v. Gore to make a second appointment to the case;2 helped with the investigation of high court following the appointment of President ’s relationship with Justice Neil Gorsuch in 2017, and to Monica Lewinsky;3 drafted grounds for cement a 5-4 conservative majority on President Clinton’s impeachment with the Court for decades to come. The Independent Counsel ;4 led stakes for the Court and for the nation the independent counsel’s were immediately thrown into sharp investigation into the alleged murder of relief: the future of access to health care, Vince Foster;5 and served as a lawyer for to reproductive rights, and to civil rights Jeb Bush.6 that had been gradually won over many decades are clearly in jeopardy. Within Kavanaugh also served for five years as days, on July 9, President Trump a top official in the George W. Bush nominated D.C. Circuit Court Judge Brett White House, working in the White Michael Kavanaugh for the seat to be House Counsel’s office and as White 7 vacated by Kennedy, confirming the House Staff Secretary. As Kavanaugh Administration’s intent to push the high described in his April 2004 court farther to the right. This report confirmation hearing, “throughout my reflects the results of a preliminary look career in the White House as Staff at Kavanaugh’s record, which forms the Secretary, one of my jobs is to be the basis for Alliance for Justice’s (AFJ) strong honest broker for competing views opposition to his confirmation. that come in on memos to the President.”8 While he concluded that It is worth noting that AFJ also opposed his job was “ultimately to carry out the Kavanaugh’s appointment to the D.C. direction of my superiors without Circuit when he was first nominated by regard to whether I might have President George W. Bush in July of chosen a different path,” he also 2003. In opposing his confirmation to acknowledged that “my job is to give the circuit court, AFJ wrote that recommendations and advice[.]”9 “Kavanaugh’s career is distinguished (emphasis added) only by its extreme partisanship. There is nothing in his record to suggest that he

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Kavanaugh’s service in the White House is for decades to come, simply could not of exceptional interest and relevance be higher. today, as he aspires to join the nation’s highest court. His tenure there overlapped with numerous controversial Bush HEALTH CARE Administration policies and decisions, including those involving warrantless President Trump explicitly stated he was wiretapping, torture, and the use of looking for nominees who are hostile to signing statements. He was reportedly the Affordable Care Act (ACA). Trump involved in internal discussions about the said “my judicial appointments will do Bush Administration’s unconstitutional the right thing unlike Bush’s appointee detention policies, and senators have on ObamaCare.” Brett previously accused Kavanaugh of Kavanaugh meets Donald Trump’s test. “misleading” the Senate Judiciary Committee during his previous Tragically, the stakes for the health and confirmation hearings about his wellbeing of millions of people are all too involvement in these issues. Most real. Since the Republican Congress documents from this period of his career failed in its attempts to repeal the have yet to be released. Affordable Care Act, Trump is trying now to use the courts to do so. Trump’s In the meantime, this summary report Justice Department has already attacked examines key issue areas Kavanaugh the law that ensures insurance addressed during his twelve years as a companies cannot deny coverage or judge. There is no shortage of troubling charge higher rates to people with indicators; his writings and rulings preexisting conditions. Trump’s legal attack the right to health care, to attack would reportedly take health care reproductive freedom, to clean air and away from 52 million Americans, water, and to fair wages and safe including cancer survivors, people with working conditions – all highly diabetes, and pregnant women. As the significant issues in every state in the American Medical Association and other country. In addition, Kavanaugh’s physician groups made clear, it “would writings and statements exhibit his have a devastating impact on doctors, belief that there are instances in which patients, and the American health care the President should not be subjected system as a whole.” to the rule of law that applies to ordinary citizens: that there are, in fact, instances On July 3, 2018, one of Kavanaugh’s in which the President should be above former law clerks wrote an article the law. The danger of this view at a titled “ Said time when the President himself seems Obamacare Was Unprecedented And disdainful of the rule of law cannot be Unlawful.” In the article, describing overstated. Kavanaugh’s dissent in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), where In short, the consequences of this the D.C. Circuit upheld the nomination for the American people,

WWW.AFJ.ORG PAGE 3 constitutionality of the Affordable Care from being decided until the first ACA Act, the clerk argued: “taxes” were imposed and collected. He also commented that the ACA was Kavanaugh’s thorough and “a law that is unprecedented on the principled takedown of the federal level in American history”10 and mandate was indeed a roadmap for “could usher in a significant expansion the Supreme Court—the Supreme of congressional authority with no Court dissenters, justices Antonin obvious principled limit.”11 Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who Additionally, in Sissel v. HHS, 799 F.3d explained that the mandate 1035 (D.C. Cir. 2015), challengers violated the Constitution. I am very claimed that the ACA violated the familiar with that opinion, because I Origination Clause, which says that all served as Kennedy’s law clerk that bills for raising revenue must originate term. I can tell you with certainty in the House. A three-judge panel of that the only justices following a the D.C. Circuit dismissed the case, roadmap from Brett Kavanaugh and Kavanaugh dissented from the were the ones who said Obamacare denial of rehearing en banc. was unconstitutional. (italics in Kavanaugh issued a complicated original; emphasis added) opinion that three of his fellow judges on the D.C. Circuit criticized as On July 3, 2018, another former “flawed,” “empty formalism,” and Kavanaugh clerk wrote, “[a]lthough he “misread[ing] the Supreme Court's ultimately determined that a Origination Clause precedent.”12 challenge to Obamacare had to be brought later, he left no doubt about where he stood. No other contender on President Trump’s list is on record Reproductive so vigorously criticizing the law.” (emphasis added) Indeed, Kavanaugh dissented from Rights two rulings upholding the Affordable Care Act. In Seven-Sky v. Holder, President Trump has repeatedly Kavanaugh dissented from a decision reminded us that he will only put justices concluding that the court had on the Supreme Court who pass his jurisdiction to decide the litmus test of gutting and overturning constitutionality of the ACA and that Roe v. Wade. The President said the ACA was ultimately constitutional. overturning Roe “will happen In his dissent, Kavanaugh argued that automatically . . . because I am putting the court did not have jurisdiction to pro-life justices on the court.” We should address the merits of the law because believe him. the Anti-Injunction Act barred the suit

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The evidence available on Brett Kavanaugh’s order, Kavanaugh argued in Kavanaugh’s record to date reinforces this dissent that the D.C. Circuit created “a conclusion. As one of Kavanaugh’s former new right for unlawful immigrant minors clerks wrote in the National Review on July in U.S. Government detention to obtain 3, 2018: immediate abortion on demand, thereby barring any Government efforts to On the vital issues of protecting expeditiously transfer the minors to their religious liberty and enforcing immigration sponsors before they make restrictions on abortion, no court-of- that momentous life decision.”15 As Judge appeals judge in the nation has a Millett stated, however, “[w]e are told that stronger, more consistent record than waiting even another week could Judge Brett Kavanaugh. On these issues, increase the risk to J.D.'s health, the as on so many others, he has fought for potential complexity of the procedure, his principles and stood firm against and the great difficulty of locating an pressure. He would do the same on the abortion provider in Texas.”16 Supreme Court. . . . Judge Kavanaugh has a clear, consistent, and rock-solid Also notable is the fact that just one record on the issues that matter most to month before this decision, in social conservatives. (emphases added) September 2017, Kavanaugh delivered a speech at the American Enterprise Kavanaugh’s former clerk goes on to Institute on “The Constitutional describe Kavanaugh’s record in Garza v. Statesmanship of Chief Justice William Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en Rehnquist.”17 In his remarks, Kavanaugh banc), vacated as moot. In this case, discussed a 1997 Rehnquist opinion on Kavanaugh dissented from a full D.C. the right to die and telegraphed his own Circuit decision that allowed “Jane Doe,” skepticism towards Roe18 when he said: an undocumented minor in government custody, to exercise her right to access Justice Rehnquist was not successful abortion care. Judge Patricia Millett’s in convincing a majority of the justices opinion concurring in the full D.C. Circuit’s in the context of abortion either in Roe order noted that Doe’s “capacity to make itself or in the later cases such as the decision about what is in her best Casey, in the latter case perhaps interests by herself was approved by a because of stare decisis. But he was Texas court consistent with state law. She successful in stemming the general did everything that Texas law requires to tide of freewheeling judicial creation obtain an abortion.”13 of unenumerated rights that were not rooted in the nation’s history and At an earlier stage in the case, when tradition.19 three judges on the D.C. Circuit originally considered it, Kavanaugh ruled in favor of Kavanaugh’s record on reproductive allowing additional delays in Doe’s rights also extends to other cases in abortion care, as sought by the Trump which access to contraception is at issue. Administration.14 When the full D.C. Under the Affordable Care Act’s Circuit considered the case, overruling contraceptive coverage policy, religious

WWW.AFJ.ORG PAGE 5 nonprofits are permitted to “opt-out” of providing direct contraceptive coverage to their employees by submitting either Presidential a form to their insurer or a letter to the Department of Health and Human Services. Kavanaugh supported Power challenges to the “opt-out” policy which The Trump Administration has frequently claimed that the act of submitting this taken actions that demonstrate its form substantially burdened the religious contempt for the rule of law and that call employers’ religious freedom. into question its commitment to the One such case was Priests for Life v. U.S. Constitution. The President himself has Dep’t of Health and Human Services, repeatedly demanded “loyalty” from 808 F.3d 1 (D.C. Cir. 2015). After a three- government officials, including the FBI judge panel ruled against Priests for Life, director. It was reported that Trump a religious nonprofit organization asked the deputy attorney general in a challenging the opt-out requirement, conversation about the Russia the full D.C. Circuit declined to review investigation whether he was “on my that decision. Kavanaugh disagreed in team.” The President has frequently tried dissent, arguing that “[w]hat the panel to undermine an independent opinion misses is that submitting this investigation into Trump’s and his form is itself an act that contravenes the associates’ personal and campaign ties organizations’ sincere religious beliefs.”20 to Russia, including by firing former FBI Other judges on the court criticized the Director James Comey. In the President’s dissents as “perceiv[ing] in Hobby Lobby own words, he decided to fire Comey a potentially sweeping, new RFRA because of “this Russia thing,” and prerogative for religious adherents to “regardless of [the] recommendation, I make substantial-burden claims based was going to fire Comey.” And, most on sincere but erroneous assertions recently, in Helsinki, the President about how federal law works.”21 In 2016, publicly sided with Vladimir Putin over the U.S. Supreme Court in Zubik v. America’s own intelligence agencies. Burwell, 136 S. Ct. 1557 (2016) vacated the In such perilous times, Kavanaugh’s D.C. Circuit and other decisions to allow personal writings and speeches raise the parties an opportunity “to arrive at concerns that he would insulate the an approach going forward.”22 president from accountability and allow Trump’s abuses of power to go unchecked. The following are examples of positions Kavanaugh has taken: Presidents should be able to remove a special counsel at will. Kavanaugh has strongly suggested that he believes that

WWW.AFJ.ORG PAGE 6 an independent counsel should be congressional investigation must take hired or fired by the President. As part of place in lieu of criminal investigation a 1998 law review article proposing that when the President is the subject of Congress adopt a statute giving the investigation, and that criminal President broad authority to hire and prosecution can occur only after the fire the independent counsel at will, President has left office.”28 Kavanaugh Kavanaugh wrote that “Congress should reiterated his preference that give back to the President the full power Presidents should not be indicted to act when he believes that a particular while in office in a speech in 1998.29 independent counsel is ‘out to get him’”23 and that “the President should A decade later, Kavanaugh made a similar have absolute discretion (necessarily proposal in a 2009 article, writing that “it influenced, of course, by congressional would be appropriate for Congress to and public opinion) whether and when enact a statute providing that any personal civil suits against presidents . . . to appoint an independent counsel.”24 be deferred while the President is in Kavanaugh argued that the nation’s office,”30 and that “Congress should founders “suggest[ed] the ill wisdom of consider doing the same, moreover, with entrusting the power to judge the respect to criminal investigations and President of the United States to a single prosecutions of the President. In person or body such as an independent particular, Congress might consider a law counsel.”25 In a recorded appearance exempting a President – while in office – before the American Enterprise Institute from criminal prosecution and in 2016, Kavanaugh stated that he investigation, including from questioning wanted to “put the final nail in” the by criminal prosecutors[.]”31 Supreme Court’s decision in Morrison v. Olson, 487 U.S. 654 (1988), which upheld In 1999, Kavanaugh also participated in a the constitutionality of the independent roundtable discussion where he questioned the Supreme Court’s counsel statute passed after Watergate.26 decision in U.S. v. Nixon, 418 U.S. 683 Presidents should not be prosecuted (1974). In this watershed case during the while in office. When asked on a panel Watergate scandal, the judicial branch at Georgetown Law School in 1998, weighed in on a situation where “the “How many of you believe, as a matter President challenges a subpoena served of law, that a sitting president cannot on him as a third party requiring the be indicted during the term of office?” production of materials for use in a Kavanaugh raised his hand. As part of criminal prosecution.”32 Making clear the aforementioned 1998 law review that no one is above the law, the Court article, Kavanaugh proposed that held in Nixon that “when the ground for Congress also adopt a statute “to asserting privilege as to subpoenaed establish that a sitting President materials sought for use in a criminal cannot be indicted.”27 Kavanaugh trial is based only on the generalized argued that “[t]he Constitution itself interest in confidentiality, it cannot seems to dictate, in addition, that prevail over the fundamental demands

WWW.AFJ.ORG PAGE 7 of due process of law in the fair administration of criminal justice.”33 Consumer During the 1999 panel, Kavanaugh reportedly stated, “But maybe Nixon was wrongly decided — heresy though Rights it is to say so . . . Maybe the tension of the time led to an erroneous decision,” When the Trump Administration and “[s]hould U.S. v. Nixon be overruled announced Kavanaugh’s nomination, on the ground that the case was a press reported that “the White House nonjusticiable intrabranch dispute? wrote that Kavanaugh has overruled Maybe so.”34 These views raise serious federal regulators 75 times on cases questions about Kavanaugh’s involving clean air, consumer willingness to enforce checks and protections, net neutrality and other balances on a President who thinks he issues.” In talking points that appear is above the law. to mirror this language, it was argued that Kavanaugh “Respects Corporate As AFJ noted in 2004, “Kavanaugh’s views Entities’ First Amendment Rights.” of executive privilege reveal his excessive This and other evidence indicates that partisanship. In the Independent Kavanaugh will continue to protect Counsel’s office, Kavanaugh was corporations, the wealthy, and the responsible for challenging the Clinton powerful over the rights of all. Administration’s claims of privilege, testing the boundaries of executive and Sides with Banks. Kavanaugh has argued other privileges in order to gain more that the Consumer Financial Protection information for the Starr investigation. His Bureau – the entity created to protect actions as one of Starr’s deputies alone consumers from unscrupulous banks compel the conclusion that he would be after the biggest financial crisis since the incapable of bringing the kind of fairness Great Depression – is unconstitutional. and independence to the bench that are Although the full D.C. Circuit later essential to the equal dispensation of reversed Kavanaugh’s decision,36 in PHH justice and to the long-term viability of Corp. v. Consumer Fin. Prot. Bureau, 839 our federal judiciary. Since joining the F.3d 1 (D.C. Cir. 2016) Kavanaugh held that Bush Administration, however, the consumer protection agency “is Kavanaugh has become a zealous unconstitutionally structured.”37 In Free defender of executive privilege working to Enter. Fund v. Pub. Co. Accounting shield the White House from inquiries Oversight Bd., 537 F.3d 667 (D.C. Cir. from the public, Congress and even 2008), aff’d in part and rev’d in part, 561 historians wanting to see the papers of U.S. 477 (2010), Kavanaugh also dissented past presidents.”35 from a majority opinion upholding the constitutionality of the Public Company Accounting Oversight Board, an entity

WWW.AFJ.ORG PAGE 8 created by the Sarbanes-Oxley Act of 2002. ENVIRONMENT Sides Against a Free and Open Internet. When the D.C. Circuit upheld the On the D.C. Circuit, Kavanaugh Federal Communications Commission’s consistently overturned protections for net neutrality rule, in United States clean air, routinely putting corporate Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. interests over safeguards for the health Cir. 2017), Kavanaugh wrote a dissenting of families and the environment. For opinion arguing that the full D.C. Circuit example, in EME Homer City should hear the case because “[t]he net Generation, LP v. Environmental neutrality rule is unlawful and must be Protection Agency, 696 F.3d 7 (D.C. Cir. vacated[.]”38 One scholar described 2012), Kavanaugh rejected an Kavanaugh’s views as representing the Environmental Protection Agency (EPA) “fringe of First Amendment rule requiring that upwind states bear jurisprudence.” responsibility for their fair share of pollution they cause in downwind Sides Against Consumer Protections. In states. The Supreme Court overturned Public Citizen, Inc. v. Nat’l Highway Kavanaugh in a 6-2 decision, upholding Traffic Safety Admin., 489 F.3d 1279 (D.C. the rule and chiding Kavanaugh for Cir. 2007), Public Citizen and the tire reading “unwritten” requirements into industry petitioned for review of a new the Clean Air Act: “However sensible (or federal motor vehicle standard that not) the Court of Appeals’ position, a required automakers to manufacture reviewing court’s task is to apply the text cars with a minimum tire pressure [of the statute], not to improve upon monitoring system. Public Citizen it.”40 argued that the new tire safety standard was too weak. While Kavanaugh allowed Similarly, Kavanaugh sided with industry Public Citizen to present additional over clean air in White Stallion Energy information, he also questioned Center v. EPA, 748 F.3d 1222 (D.C. Cir. whether they had standing to bring the 2014). Kavanaugh dissented in part from case at all, critiquing standing claims a ruling that upheld regulation of based on an “increased-risk-of harm” to mercury and other hazardous pollution the plaintiffs.39 Kavanaugh ultimately from power plants as “appropriate and found that Public Citizen lacked necessary” under the Clean Air Act. In standing and dismissed the case in his dissent, where he also concurred in Public Citizen, Inc. v. Nat’l Highway part on a question of standing, Safety Admin., 513 F.3d 234 (D.C. Cir. Kavanaugh criticized the EPA for failing 2008). to consider costs to industry. The Supreme Court eventually reversed the D.C. Circuit in a 5-4 decision in Michigan v. EPA, 135 S. Ct. 2699 (2015).

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Kavanaugh has also threatened efforts rule, citing environmental to combat climate change. In Coalition organizations that alleged Pruitt’s for Responsible Regulation, Inc. v. EPA, reasons for delaying the rule were 2012 U.S. App. LEXIS 25997 (D.C. Cir. Dec. false “because ‘all of the issues 20, 2012), Kavanaugh sided against the Administrator Pruitt identified could EPA’s authority to regulate greenhouse have been, and actually were, raised gases. Kavanaugh dissented from an (and extensively deliberated) during en banc decision to deny rehearing of a the comment period.’”42 When the full challenge to the Clean Air Act. D.C. Circuit denied the EPA’s appeal, Kavanaugh argued that the EPA’s Kavanaugh and two other judges authority to regulate “any air pollutant” dissented from that decision. in the context of certain permitting requirements excluded certain greenhouse gases and only referred to WORKERS’ “six air pollutants.” Kavanaugh cited “significantly higher cost on businesses” as one source of his concern.41 RIGHTS Later, in Mexichem Fluor, Inc. v. EPA, 866 During his time on the bench, F.3d 451 (D.C. Cir. 2017), Kavanaugh Kavanaugh has routinely ruled against concluded that the EPA exceeded its workers and their families. On the authority in restricting manufacturers Supreme Court, Kavanaugh would from making certain products that dismantle workplace protections and contain greenhouse gases known as safety laws, as well as undermine the “hydrofluorocarbons” (HFCs), which power of unions. In SeaWorld of Fla., contribute to climate change. LLC v. Perez, 748 F.3d 1202 (D.C. Cir. Kavanaugh also sided with disgraced 2014), the Occupational Safety and ex-EPA Administrator Scott Pruitt and Health Administration (OSHA) fined the Trump Administration in Clean Air SeaWorld $75,000 after a SeaWorld Council v. Pruitt, No. 17-1145 (D.C. Cir. trainer was killed during a live Aug. 10, 2017). There, an en banc panel performance with a killer whale. The of the D.C. Circuit upheld a three- killer whale had “known aggressive judge panel decision finding that the tendencies” and had killed a trainer in Trump Administration had engaged the past.43 in unreasonable delays when it stayed The Occupational Safety and Health the implementation of an Obama-era Review Commission found that EPA rule curbing emissions of SeaWorld had failed to adopt sufficient methane and other greenhouse safety measures to limit the trainer’s gases. See Clean Air Council v. Pruitt, physical contact with the whales. The 862 F.3d 1 (D.C. Cir. 2017). The three- majority opinion upheld the safety judge panel had previously granted a citation against SeaWorld, deferring to motion to vacate the EPA’s stay of the

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OSHA’s findings. Kavanaugh dissented, held that the National Labor Relations arguing that the idea that employees Board was “unreasonable” in rejecting should be protected from death or an arbitration decision which held that significant injury was “paternalistic[].”44 a union’s agreement to waive its He also asserted that OSHA was breaking members’ right to “picket” also waived with precedent in regulating an workers’ right to display pro-union entertainment show. According to one signs in their cars while they were at scholar, Kavanaugh’s dissent in this case work.46 Judge , concurring “reflects [his] deep skepticism of the in part and dissenting in part, institutions that Congress designed to emphasized that Kavanaugh was not protect American workers.” properly deferential to the Board’s determination.47 Also illustrative are just a few of Kavanaugh’s cases opposing the rights In Venetian Casino Resort, LLC v. NLRB, of American workers to join together to 793 F.3d 85 (D.C. Cir. 2015), the NLRB protect their rights and hold employers found that a hotel engaged in unfair and corporations accountable. In AFGE labor practices after it requested that v. Gates, 486 F.3d 1316 (D.C. Cir. 2007), police officers issue criminal citations to Kavanaugh wrote an opinion upholding union demonstrators who were legally regulations that undermined the protesting. Kavanaugh reversed, collective bargaining rights of hundreds vacating part of the NLRB’s order. of thousands of civilian employees at the Department of Defense (DOD). As Finally, in NLRB v. CNN Am., Inc., 865 noted by , these F.3d 740 (D.C. Cir. 2017), Kavanaugh DOD regulations were “some of the dissented in part from Chief Judge most dramatic workplace changes ’s majority opinion planned for civil service employees in 30 upholding part of an NLRB order. The years.” Judge David Tatel dissented in NLRB had found that CNN needed to part, arguing that according to recognize and bargain with a workers’ Kavanaugh’s opinion, the Secretary of union and that CNN violated the NLRA Defense could simply establish a new by discriminating against union personnel system and “abolish collective members in hiring. bargaining altogether – a position with which even the Secretary disagrees.”45 CIVIL RIGHTS In Verizon New England v. NLRB, 826 F. 3d 480 (D.C. Cir. 2016), Kavanaugh Kavanaugh’s record on civil rights is wrote a decision finding for Verizon in a troubling. Before the Supreme Court labor dispute with union members who gutted the Voting Rights Act in Shelby were prohibited from displaying pro- County v. Holder, Kavanaugh upheld a union signs in their cars. The union South Carolina law where the state argued that Verizon violated the sought approval for changes to its employees’ rights under the National voter ID law in South Carolina v. U.S., Labor Relations Act (NLRA). Kavanaugh

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898 F. Supp.2d 30 (D.C. Cir. 2012). The not force South Carolina to jump Justice Department (DOJ) challenged through unnecessary hoops. Rather, the law, arguing that it would the history of [South Carolina’s new disenfranchise tens of thousands of law] demonstrates the continuing people of color. The Justice utility of Section 5 of the Voting Rights Department had previously blocked Act in deterring problematic, and the law in 2011 for violating the Voting hence encouraging non- Rights Act, after it found that over discriminatory, changes in state and 80,000 people of color who were local voting laws.”51 Kavanaugh failed registered voters in South Carolina did to join this separate opinion, and just not have the newly required DMV- eight months later, the Supreme issued identification. According to Court issued its decision gutting DOJ, “minority registered voters were Section 5 of the Voting Rights Act. nearly 20% more likely to lack DMV- issued ID than white registered voters, Kavanaugh has denied employees protections under anti-discrimination and thus to be effectively disenfranchised by [the act’s] new laws. For example, in Jackson v. requirements.”48 Gonzales, 496 F.3d 703 (D.C. Cir. 2007), Kavanaugh dismissed an African- When South Carolina then made American employee’s claim alleging adjustments to how the voter ID race discrimination during a requirements would be implemented, promotion decision at the Federal the state sought approval under the Bureau of Prisons. Kavanaugh found Voting Rights Act from a three-judge that the plaintiff failed to show that he panel. Kavanaugh wrote the opinion was significantly more qualified than upholding South Carolina’s law, the white individual who had been concluding that it did “not have a promoted. Judge Judith Rogers, who discriminatory retrogressive effect” and dissented, wrote that Kavanaugh “was not enacted for a discriminatory mischaracterized the issue as “who purpose.”49 was more qualified for a promotion,” when the real question was whether However, Judges John Bates and the employer’s “asserted Colleen Kollar-Kotelly wrote separately nondiscriminatory reason for selecting – in an opinion that Kavanaugh did another candidate was fabricated to not join – emphasizing that “one mask unlawful discrimination.”52 Here, cannot doubt the vital function that the employer asserted that it Section 5 of the Voting Rights Act has promoted the white candidate played here. Without the review because she had experience with a process under the Voting Rights Act, “Key Indicators” system, but evidence South Carolina’s voter photo ID law showed that the job announcement certainly would have been more and job description made no restrictive.”50 Moreover, “The Section 5 reference to that system. process here,” the judges wrote, “did

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Also relevant is Howard v. Office of the Rather than taking an approach Chief Admin. Officer, 720 F.3d 939 (D.C. rooted in the real world and the ways Cir. 2013), where Kavanaugh dissented in which the law impacts all from a majority decision that allowed Americans, Kavanaugh argued that a black woman who was fired from “courts are to assess gun bans and her position as a senior advisor to the regulations based on text, history, and Chief Administrative Officer of the U.S. tradition, not by a balancing test such House of Representatives to pursue as strict or intermediate scrutiny.”54 In claims of race discrimination and Kavanaugh’s view, “[s]emi-automatic retaliation under the Congressional rifles have not traditionally been Accountability Act. In Miller v. Clinton, banned and are in common use 687 F.3d 1332 (D.C. Cir. 2012), today, and are thus protected under Kavanaugh dissented from the Heller.”55 While Kavanaugh’s views majority which found that the State have been described as “radical” and Department violated the Age “an extreme outlier,” he maintained Discrimination in Employment Act that “holding these D.C. laws when it terminated an employee on unconstitutional would not lead to his sixty-fifth birthday. nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in GUN Violence the United States between public safety and the individual right to keep 56 Kavanaugh has taken a narrow view of arms[.]” the lawfulness of modern-day gun safety measures. After the Supreme Court’s 2008 ruling in District of IMMIGRATION Columbia v. Heller, 554 U.S. 570, the District of Columbia updated its As previously noted, Kavanaugh’s firearm regulations to prohibit opinion in Garza v. Hargan is relevant possession of certain military-style to his treatment of constitutional semi-automatic rifles and to require rights and immigrants. registration of firearms. When the D.C. Circuit upheld several of those gun In another case, Agri Processor Co. v. safety measures, Kavanaugh NLRB, 514 F.3d 1 (D.C. Cir. 2008), Agri dissented from his Republican- Processor employees in Brooklyn appointed colleagues, finding, “[i]n my decided to join a union to improve their judgment, both D.C.’s ban on semi- working conditions. When their automatic rifles and its gun employer argued that the union vote registration requirement are was invalid due to some of the workers’ unconstitutional under Heller.”53 Heller immigration status, Kavanaugh sided v. District of Columbia (Heller II), 670 with the company. At the D.C. Circuit, Kavanaugh dissented from a decision F.3d 1244 (D.C. Cir. 2011). affirming that the company needed to

WWW.AFJ.ORG PAGE 13 bargain with the union. The majority noted arguments that the National Labor Relations Act (NLRA) “helps to NATIONAL assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of SECURITY AND illegal alien employees who are not subject to the standard terms of employment.”57 CIVIL LIBERTIES

Relying on other statutory language, In the context of national security and Kavanaugh would have agreed with civil liberties, Kavanaugh has also the company that undocumented expressed an expansive view of the immigrants are not “employees” under government’s power. the labor law and were therefore When the D.C. Circuit considered a ineligible to vote in “the tainted union challenge to the government’s bulk election.”58 The majority opinion harshly collection of phone metadata in criticized Kavanaugh’s dissent as Klayman v. Obama, 805 F.3d 1148 (D.C. ignoring the plain language of the Cir. 2015), Kavanaugh wrote separately NLRA and as a “misread[]”59 of Supreme to express his agreement with the Court precedent in Sure-Tan, Inc. v. government. In a concurring opinion, NLRB, 467 U.S. 883 (1984), noting Kavanaugh concluded that “the concerns about “creat[ing] a subclass of Government’s metadata collection workers.” 60 program is entirely consistent with the This case involved the same company Fourth Amendment.”61 He argued, “The where nearly 400 immigrant workers Government’s collection of telephony were swept up in a 2008 Immigration metadata from a third party such as a and Customs Enforcement raid in telecommunications service provider is Postville, Iowa. After the Postville raid, not considered a search under the it came to light that there were Fourth Amendment,” and that “the serious abusive conditions at the Government's metadata collection company, including allegations of program readily qualifies as reasonable child labor. The Iowa Labor under the Supreme Court’s case law.”62 Commissioner fined the company According to Kavanaugh, the “critically nearly $10 million for unpaid wage important special need” of preventing violations and the company’s CEO, terrorist attacks on the United States Shalom Rubashkin, was criminally “outweighs the impact on privacy convicted of bank fraud, mail fraud occasioned by this program.”63 and money laundering (President Kavanaugh has also taken an aggressive Trump later commuted his sentence). stance on the authority of military commissions. As Stephen Vladeck has

WWW.AFJ.ORG PAGE 14 noted, “[t]here’s no one on the D.C. sought to avoid a transfer to Iraqi Circuit who has played a larger role in custody, where he claimed that he defending the legality of the military was likely to be tortured. Kavanaugh commissions than Judge Kavanaugh.” concluded that Omar did not have a statutory or constitutional “right to

In Bahlul v. United States, 840 F.3d judicial review of conditions in the 757 (D.C. Cir. 2016) Kavanaugh receiving country before he could be concurred in a per curiam opinion transferred,” demurring that for the en banc D.C. Circuit “Congress remains free to provide upholding the expansion of the military transferees such as Omar with jurisdiction of military tribunals to [that] right.”66 include the crime of “conspiracy” typically heard by Article III civilian In Meshal v. Higgenbotham, 804 F.3d courts. Kavanaugh’s concurrence 417 (D.C. Cir. 2015), Kavanaugh argued that “the Supreme Court has concurred in a decision that affirmed long recognized an exception to a district court’s dismissal of a Bivens Article III for military commissions to action against federal officials when try enemy war crimes[,]” including U.S. citizen Amir Meshal alleged they an exception for conspiracy.64 Three had violated his constitutional rights. judges dissenting in the case took issue Meshal claimed that U.S. agents with the decision by Kavanaugh and detained him, interrogated him, and the majority to cede power from the threatened him with torture over the courts to the executive branch, writing, course of four months and in three “historically, the military has not been in African countries. In his concurrence the business of prosecuting individuals dismissing Meshal’s suit, Kavanaugh for crimes and locking them up for life. wrote, “courts should not – under the Its primary mission has always been to guise of Bivens – unilaterally defeat our enemies on the battlefield,” recognize new limits that restrict U.S. and “The challenges of the war on officers’ wartime activities.”67 terror do not necessitate truncating the judicial power to make room for a new In Doe v. Exxon Mobil Corp., 473 F.3d constitutional order. ‘The laws and 345 (D.C. Cir. 2007), Kavanaugh Constitution are designed to survive, dissented from a decision that and remain in force, in extraordinary dismissed an appeal by Exxon, which times.’”65 was seeking to have a case thrown out over whether the company could be Kavanaugh has also issued opinions held liable by Indonesian villagers. The pertaining to detention and torture. villagers alleged that Exxon had In Omar v. McHugh, 646 F.3d 13 knowingly hired Indonesian soldiers (D.C. Cir. 2011), Kavanaugh rejected who had subjected the villagers to the habeas claim of a U.S. citizen, murder, torture, and sexual assault in Shawqi Omar, who had been held in the past. When the case appeared U.S. military custody in Iraq under before him in 2007, Kavanaugh wrote suspicion of terrorist activity. Omar that he would not have allowed the

WWW.AFJ.ORG PAGE 15 case to go forward because the State overturned by the full D.C. Circuit. In the Department believed the suit would case, Paul Askew was stopped by D.C. harm U.S. foreign policy interests, and police because his clothing was similar “the federal courts give deference to to an armed robber’s. The police patted reasonable explanations by the Askew down for weapons but found Executive Branch that a civil lawsuit nothing. Later, the officers unzipped would adversely affect the foreign Askew’s coat without his consent and relations of the United States, and the found a gun. Judge Harry Edwards courts dismiss such cases as non- dissented from Kavanaugh’s opinion justiciable political questions.”68 upholding Askew’s firearm conviction, arguing that “this holding reflects an Later, in Doe v. Exxon Mobil Corp., 654 extraordinary departure from well- F.3d 11 (D.C. Cir. 2011), Kavanaugh sided established Supreme Court with Exxon again when the D.C. precedent[.]”71 Edwards also stated, “I Circuit reversed the district court’s fear that, if this judgment survives as dismissal of the villagers’ claims, which precedent, the Fourth Amendment had been brought under the Alien soon will be a dead letter in our Tort Statute (ATS). Kavanaugh Constitution, at least with respect to dissented in part, arguing that the ATS cases brought before this court.”72 On does not apply to conduct in foreign rehearing en banc, a majority of the D.C. nations, that it does not apply to Circuit agreed with the dissent and claims against corporations, and that overturned Kavanaugh’s decision. the court must dismiss ATS cases “to heed Executive Branch statements of Kavanaugh has also spoken about [foreign policy] interest.”69 The former Chief Justice William Rehnquist’s Supreme Court later held in Kiobel v. views of the exclusionary rule, which Royal Dutch Petro. Co., 569 U.S. 108 prohibits the government from using (2012), that international conduct is illegally obtained evidence in criminal presumed to be outside of the scope prosecutions. In his September 2017 of the ATS unless claims "touch and speech at the American Enterprise concern the territory of the United Institute, Kavanaugh explained how States . . . with sufficient force."70 Rehnquist’s “most vehement objection to Warren Court Fourth Amendment law concerned the exclusionary rule” CRIMINAL and that “it would be a mistake to call [Rehnquist’s] exclusionary rule project a failure . . . Rehnquist dramatically JUSTICE changed the law of the exclusionary rule. Led by Rehnquist, the Supreme In United States v. Askew, 482 F.3d 532 Court created many needed exceptions (D.C. Cir. 2007), Kavanaugh ruled in favor to the exclusionary rule that endure to of law enforcement after a stop and frisk this day.”73 search. That decision was later

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CONCLUSION Kavanaugh’s record overwhelmingly demonstrates heightened partisanship. He meets the President’s litmus test to overturn or gut Roe v. Wade and to take away health care from millions. He regularly sides with the wealthy and the powerful over the rights of all, and he will erode critical constitutional rights and legal protections, including environmental protections and safe working conditions. Kavanaugh believes that there are instances in which the President should not be subject to the rule of law that applies to ordinary citizens. Alliance for Justice strongly opposes his confirmation.

Endnotes

1 Alliance for Justice, Brett Kavanaugh Report (2004), available at https://www.afj.org/wp-content/ uploads/2018/07/kavanaugh_report_final-2004.pdf. 2 Sen. Comm. on the Judiciary, 108th Cong., Brett Michael Kavanaugh Questionnaire for Judicial Nominees, 21, available at https://www.afj.org/wp-content/uploads/2018/07/CHRG-108shrg24853- SJQ.pdf. 3 Alliance for Justice, Brett Kavanaugh Report, 4 (2004), available at https://www.afj.org/wp- content/uploads/2018/07/kavanaugh_report_final-2004.pdf. 4 Sen. Comm. on the Judiciary, 108th Cong., Brett Michael Kavanaugh Questionnaire for Judicial Nominees, 9–11, available at https://www.afj.org/wp-content/uploads/2018/07/CHRG-108shrg24853- SJQ.pdf. 5 Id. at 10. 6 Id. at 11. 7 Id. at 8. 8 Confirmation Hearing on the Nomination of Brett M. Kavanaugh to be Circuit Judge for the D.C. Circuit, Hearing before the Committee on the Judiciary, 108th Cong., 65 (2004), available at https:// www.gpo.gov/fdsys/pkg/CHRG-108shrg24853/pdf/CHRG-108shrg24853.pdf. 9 Id. at 59. 10 Seven-Sky v. Holder, 661 F.3d 1, 51 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). 11 Id. at 52. 12 Sissel v. HHS, 799 F.3d 1035, 1036 (D.C. Cir. 2015) (Kavanaugh, J., dissenting). 13 Garza v. Hargan, 874 F.3d 735, 736–37 (D.C. Cir. 2017) (en banc). 14 Garza v. Hargan, No. 17-5236, (D.C. Cir. Oct. 20, 2017) (Order to Vacate and Remand). 15 Garza, 874 F.3d at 752 (Kavanaugh, J., dissenting). 16 Id. at 741 (Millett, J., concurring). 17 Brett Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, American Enterprise Institute (2017), available at http://www.aei.org/wp-content/ uploads/2017/12/From-the-Bench.pdf. 18 Brett Kavanaugh, Transcript of From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, American Enterprise Institute (2017), available at https://www.aei.org/wp- content/uploads/2017/08/from-the-bench.pdf. (Q: Judge Kavanaugh, thank you for coming today. My name is Chris Johnswick (ph). I just had a question for you. You spoke about the chief justice’s role in both Roe and Casey. I wonder if you could elaborate as what would you say his biggest legacy is for us. You agreed with his dissent in those opinions). 19 Brett Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, American Enterprise Institute, 16 (2017), available at http://www.aei.org/wp-content/ uploads/2017/12/From-the-Bench.pdf. 20 Priests for Life v. U.S. Dep’t of Health and Human Services, 808 F.3d 1, 20 (D.C. Cir. 2015) (Kavanaugh, J., dissenting). 21 Id. at 2 (Pillard, J., concurring). 22 Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016). 23 Brett Kavanaugh, Symposium Contribution: The President and the Independent Counsel, 86 Geo. L.J. 2133, 2151 (1998), available at https://www.afj.org/wp-content/uploads/2018/06/SYMPOSIUM_- CONTRIBUTION_-The-President-and-the-Independ.pdf. 24 Id. at 2136. 25 Id. at 2160. 26 Brett Kavanaugh, Interview on Federal Courts and Public Policy, American Enterprise Institute (Mar. 31, 2016), available at https://www.c-span.org/video/?407491-1/discussion-politics-supreme- court. 27 Brett Kavanaugh, Symposium Contribution: The President and the Independent Counsel, 86 Geo. L.J. 2133, 2157 (1998), available at https://www.afj.org/wp-content/uploads/2018/06/SYMPOSIUM_- CONTRIBUTION_-The-President-and-the-Independ.pdf. 28 Id. at 2158. 29 Brett Kavanaugh, Panelist, Independent Counsel Structure & Function, Georgetown University Law Center (Feb. 19, 1998), recording available at https://www.c-span.org/video/?101055-1/independent- counsel-structure-function at 47:45. Endnotes

30 Brett Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1460–61 (2009), available at www.minnesotalawreview.org/wp-content/ uploads/2012/01/Kavanaugh_MLR.pdf. 31 Id. at 1461. 32 United States. v. Nixon, 418 U.S. 683, 710 (1974). 33 Id. at 713. 34 Brett Kavanaugh, Panelist, Lawyers’ Roundtable: Attorney Client Privilege, Does it Pertain to the Government?, The Washington Lawyer (Jan/Feb 1999), available at https://www.afj.org/wp- content/uploads/2018/07/Kavanaugh_Roundtable_USvNixon.pdf. 35 Alliance for Justice, Brett Kavanaugh Report, 1 (2004), available at https://www.afj.org/wp- content/uploads/2018/07/kavanaugh_report_final-2004.pdf. 36 PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75 (D.C. Cir. 2018)(en banc). 37 PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 8 (D.C. Cir. 2016). 38 United States Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017). 39 Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 (D.C. Cir. 2007). 40 EPA v. EME Homer City Generation, LP, 134 S. Ct. 1584, 1600 (2014). 41 Coalition for Responsible Regulation, Inc. v. EPA, 2012 U.S. App. LEXIS 25997, at *64–65 (D.C. Cir. Dec. 20, 2012). 42 Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C. Cir. 2017) (emphasis in original). 43 , OSHA fines SeaWorld $75,000 in death of trainer (Aug. 24, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/08/23/AR2010082305767.html. 44 SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1217 (D.C. Cir. 2014), (Kavanaugh, J., dissenting). 45 AFGE v. Gates, 486 F.3d 1316, 1331 (D.C. Cir. 2007) (Tatel, J., dissenting). 46 Verizon New England v. NLRB, 826 F. 3d 480, 488 (D.C. Cir. 2016). 47 Id. at 491-92 (Srinivasan, J., concurring in part, dissenting in part). 48 Letter from Thomas E. Perez, Assistant Att. General, U.S. Department of Justice, Civil Rights Division, 2 (Dec. 23, 2011), available at https://action.naacp.org/page/-/DOJ%20SC%20memo.pdf. 49 South Carolina v. U.S., 898 F. Supp.2d 30, 32 (D.C. Cir. 2012). 50 Id. at 53-54 (Bates, J., concurring). 51 Id. at 54. 52 Jackson v. Gonzales, 496 F.3d 703, 710 (D.C. Cir. 2007) (Rogers, J., dissenting). 53 Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1269 (D.C. Cir. 2011). 54 Id. at 1271. 55 Id. at 1287. 56 Id. at 1271. 57 Agri Processor Co. v. NLRB, 514 F.3d 1, 5 (D.C. Cir. 2008) (internal citations omitted). 58 Id. at 10 (Kavanaugh, J., dissenting). 59 Id. at 6 (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984)). 60 Id. at 8 (citing Sure-Tan, Inc. 467 U.S. at 892). 61 Klayman v. Obama, 805 F.3d 1148, 1149 (D.C. Cir. 2015). 62 Id. 63 Id. 64 Bahlul v. United States, 840 F.3d 757, 768 (D.C. Cir. 2016). 65 Id. at 829, 805 (D.C. Cir. 2016) (citing Boumediene v. Bush, 553 U.S. 723 (2008)). 66 Omar v. McHugh, 646 F.3d 13, 15 (D.C. Cir. 2011). 67 Meshal v. Higgenbotham, 804 F.3d 417, 431 (D.C. Cir. 2015). 68 Doe v. Exxon Mobil Corp., 473 F.3d 345, 357 (D.C. Cir. 2007). 69 Doe v. Exxon Mobil Corp., 654 F.3d 11, 73–74 (D.C. Cir. 2011). 70 Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 124-35 (2012). 71 United States v. Askew, 482 F.3d 532, 548 (D.C. Cir. 2007) (Edwards, J., dissenting). 72 Id. at 560. 73 Brett Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, American Enterprise Institute, 10 (2017), available at http://www.aei.org/wp-content/ uploads/2017/12/From-the-Bench.pdf.