President Donald Trump on Monday evening nominated Judge Brett Kavanaugh to the United States Supreme Court to replace retiring Justice Anthony Kennedy.
Kavanaugh, 53 years old, currently serves on the U.S. Court of Appeals for the District of Columbia Circuit, was originally nominated to the bench by President George W. Bush in 2006. In that time Kavanaugh has authored more than 300 opinions, including 11 that were affirmed by the Supreme Court.
Prior to serving on the bench, Kavanaugh served in the Bush Administration as an Associate Counsel and then Senior Associate Counsel. He was later appointed to be an assistant to the President and staff secretary.
Kavanaugh is a graduate of Yale University and Yale Law School. He clerked for Justice Kennedy on the Supreme Court following graduation, as well as, for judges on the Third and Ninth Circuit Court of Appeals. Kavanaugh served as a Counsel for the Office of Independent Counsel under Ken Starr and as a Partner at Kirkland & Ellis, LLP.
While in private practice, Kavanaugh headed the Federalist Society’s Religious Liberties Practice Group. He also wrote two pro-bono amicus briefs for cases before the Supreme Court in support of religious liberty.
Kavanaugh is a devout Catholic. He coaches his daughters’ CYO basketball teams. He also volunteers with Catholic Charities, and mentors in the local public schools. He lives in Maryland with his wife Ashley and their two daughters.
Kavanaugh has been described as a brilliant jurist, he was was on President Trump’s list of potential Supreme Court picks developed by The Federalist Society.
A former clerk of Kavanaugh’s, Justin Walker, in The Federalist wrote, “He has by far the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.”
“Over 12 years and 300 opinions, he has repeatedly fought for principles of textualism and originalism, reined in regulatory overreach, and ensured that administrative bureaucrats are accountable to the elected president,” he added.
Another former clerk, Sarah Pitlyk, wrote at National Review, ” On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.”
“In evaluating Kavanaugh, there’s only one reasonable conclusion to draw: He’d be an excellent Supreme Court justice, and he would make the Court substantially more originalist and rigorous,” David French noted in a recent column at National Review.
French said, and have others pointed out, that while Kavanaugh is a good pick, he was not the best choice. Namely, the concern is mainly due to two opinions that he authored – Seven-Sky v. Holder (dealt with Obamacare) and Priests for Life v. HHS (an Obamacare contraceptives mandate case).
In Seven-Sky v. Holder, Kavanaugh wrote, “Under the Anti-Injunction Act, a taxpayer seeking to challenge a tax law must first pay the disputed tax and then bring a refund suit, at which time the courts will consider the taxpayer’s legal arguments. Or a taxpayer may raise legal arguments in defending against an IRS enforcement action. But a taxpayer may not bring a pre-enforcement suit.”
His dissent was based on his belief the court did not have jurisdiction to hear the base. He did not weigh in on the merits.
French wrote about his opinion in this case, “This is a defensible reading of the relevant Obamacare provisions. Indeed, while the majority in the most consequential Obamacare case to reach SCOTUS, NFIB v. Sebelius et al., did not apply the Anti-Injunction Act, it did hold that the penalty was a tax. That was a reasonable response to the statutory language, but it was wrong. The Obamacare penalty was a penalty, not a tax.”
“While it is most certainly true that Judge Kavanaugh did not rule on the underlying constitutionality of what he called the “tax penalty” (and he offered a ringing critique of the government’s Commerce Clause justifications for the individual mandate), he got the fundamental question (tax or penalty?) wrong, and Justices Kennedy, Scalia, Alito, and Thomas got it right. That’s a cause for some concern,” French added.
Regarding his opinion in Priests for Life v. HHS, French said, “His dissent reached the right result, but his reasoning was dangerously flawed in one key respect: He excessively inflated the government’s interest in facilitating access to contraceptives.”
Ed Whalen, also writing National Review’s Bench Memos’ pointed out positives with his record such as restraining the administrative state, enforcing the Second Amendment, protecting religious liberty, and safeguarding free speech.
Whalen said that Kavanaugh also ruled against a “radical abortion claim.”
In his one foray into the abortion arena, in a very contentious recent case involving a pregnant unaccompanied-alien minor being held in HHS custody, Kavanaugh objected to his court’s grant of relief to the minor. In his dissent, he complained that the majority concocted “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.” The majority’s decision, he said, “represents a radical extension of the Supreme Court’s abortion jurisprudence.”
U.S. Senator Chuck Grassley (R-Iowa), chairman of the Senate Committee on the Judiciary, applauded Kavanaugh’s appointment. “Judge Kavanaugh is one of the most qualified Supreme Court nominees to come before the Senate. His credentials are well known, and he’s served with distinction as a judge on the esteemed D.C. Circuit for more than a decade. He is a superb mainstream candidate worthy of the Senate’s consideration,” Grassley said.
“As we have always done when reviewing nominees for lifetime-appointed judgeships, the Senate Judiciary Committee will conduct a fair and comprehensive evaluation of the nominee’s background and qualifications followed by hearings where we’ll hear directly from the nominee as we fulfill our advice and consent responsibility,” he added.
“Judge Brett Kavanaugh is a highly-qualified, well-respected justice committed to the rule of law. He deserves a respectful and timely confirmation and I stand ready to offer advice and consent to Judge Kavanaugh as he moves through the confirmation process,” U.S. Senator Joni Ernst (R-Iowa) said in response to the appointment.
“With Iowa’s Senior Senator, Chuck Grassley, as Chairman of the Judiciary Committee, we have a phenomenal leader overseeing the process to make sure it is smooth and done in a timely manner. Senator Grassley moved Neil Gorsuch’s confirmation through the process superbly, allowing plenty of time for both parties to participate and we did have a successful confirmation. Judge Kavanaugh deserves the same quick, yet comprehensive, process and I believe Senator Grassley will ensure the Supreme Court vacancy is filled in a way that respects the rule of law, as well as the individual being put forth for confirmation,” she added. “I look forward to the next several months, where the Senate will have the opportunity to confirm Justice Kennedy’s successor, Judge Brett Kavanaugh.”
“Brett Kavanaugh is a serious jurist known for careful deliberation. This does not matter to many on the left. Sadly, the #Resistence is going to try to bork him by portraying him as a cross between Lex Luthor and Darth Vader. This isn’t the apocalypse – this is an opportunity to thoroughly review Kavanaugh’s record, debate this seriously, and celebrate our system of checks, balances, and limited government,” U.S. Senator Ben Sasse (R-Nebraska) said in a released statement.
U.S. Senator Mike Lee (R-Utah) who was on President Trump’s Supreme Court list said, “Judge Kavanaugh is a well-respected jurist who deservedly received bipartisan support when confirmed to the D.C. Circuit in 2006. I know him to be a smart and fair judge, one of the most admired appellate judges in the country. I look forward to the process in the Senate, getting to know Judge Kavanaugh and his family better in coming months, and, hopefully, voting to confirm him to the Supreme Court in the fall.”
Watch President Trump’s announcement and Judge Kavanaugh’s remarks below: