Supreme Court Nominee Report: First Look Brett ALLIANCE FOR JUSTICE ALLIANCE FOR Kavanaugh 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 WWW.AFJ.ORG PAGE 1 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 Bill Clinton’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 Ken Starr;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 WWW.AFJ.ORG PAGE 2 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 John Roberts 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 “Brett Kavanaugh 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 WWW.AFJ.ORG PAGE 4 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.