Washington Wednesday: Who is Brett Kavanaugh?

NICK EICHER, HOST: It’s Wednesday, the 11th of July, 2018. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. First up on The World and Everything in It: Washington Wednesday.

When President Trump announced his choice to replace retiring Justice Anthony Kennedy on the Supreme Court, it raised an immediate question for many Americans: Who is Brett Kavanaugh?

Kavanaugh answered part of that question himself after the president’s announcement. He was born in 1965 in Washington, D.C. His father was a trade association president for more than two decades while his mother was a teacher who later went to law school and eventually became a judge.

KAVANAUGH: My introduction to law came at our dinner table when she practiced her closing arguments. Her trademark line was: “Use you common sense. What rings true? What rings false?” That’s good advice for a juror, and for a son.

Kavanaugh graduated high school from Georgetown Prep. That’s an elite school outside of Washington where Supreme Court Justice Neil Gorsuch also attended. Kavanaugh then earned undergraduate and law degrees from Yale.

He clerked for two circuit court judges before landing the position that would play a key role in his rise to Supreme Court nominee. In 1993 and ’94, Kavanaugh clerked for Supreme Court Justice Anthony Kennedy—the man he’s now poised to replace.

KAVANAUGH: Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.

After clerking for Kennedy, Kavanaugh’s career took a decade-long detour—into D.C. politics. He went to work for independent counsel Ken Starr and was the lead writer for the report that detailed the offenses of then-President Bill Clinton. The Starr report led to Clinton’s impeachment in 1998.

That’s only one of the controversies sure to be discussed in Kavanaugh’s confirmation hearing. In 2000, he represented the family of Elian Gonzalez, a Florida boy who was later forcibly deported to his father in Cuba. Later that year, he was involved in litigating the disputed presidential election results in Florida.

Kavanaugh worked for the George W. Bush administration from 2001 to 2006. There he handled such sensitive issues as the legal effort to keep alive Terri Schiavo—an unresponsive Florida woman.

It was in the Bush White House that Kavanaugh met his wife, Ashley. They have two daughters and are active in a Catholic church.

KAVANAUGH: I have tried to create bonds with my daughters like my dad created with me… I thank God every day for my family.

While Kavanaugh’s pedigree and status as a D.C. insider make him a logical choice, he’s something of a surprise. He was not on the list of 21 potential Supreme Court nominees then-candidate Trump vowed to choose from during his 2016 campaign. The White House only added Kavanaugh last November—likely because Justice Kennedy wanted Kavanaugh to replace him.

One other note of interest: As a circuit court judge, Kavanaugh established himself as a top feeder judge. That’s the term for judges who send clerks on to the Supreme Court. Kavanaugh regular tops such rankings and has put at least one clerk with every current member of the court—except Ruth Bader Ginsburg.

With that, we turn now to Emily Belz for a discussion of Judge Kavanaugh’s judicial record. Emily has been covering the Supreme Court for WORLD Magazine for the last decade.

Emily, let’s start with one of the issues both sides have cited as key: abortion. Before we get into relevant cases, I’d like to play Judge Kavanaugh’s 2006 response to Senator Chuck Schumer’s question about that. This was when the Judiciary Committee was considering Kavanaugh’s nomination to the D.C. Circuit court.

SCHUMER: Do you consider Roe v. Wade to be an abomination, and do you consider yourself to be a judicial nominee … in the mold of Scalia and Thomas?

KAVANAUGH: Senator … if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It’s been decided by the Supreme Court—

SCHUMER: I asked you your own opinion.

KAVANAUGH: And I’m saying if I were confirmed to the D.C. Circuit, senator, I would follow it. It’s been reaffirmed many times.

EMILY BELZ: Well, just listening to that recording, I would just add that Kavanaugh is giving the same answer that we’ve heard from other conservative justices when they were asked about Roe in their confirmation hearings.  Chief Justice Roberts said something similar in his hearing, and Justice Gorsuch also said something similar, so it’s hard to really piece what that binding precedent term when he talks about Roe means exactly for how he’ll rule in the future.  But what we can say right now is that a lot of pro-life advocates are backing him.

What might be a case to illustrate how Judge Kavanaugh might handle an abortion matter?

BELZ: So we’re looking at some of the cases dealing with abortion that Kavanaugh has ruled on in the last 12 years, and he does have an extensive history there, because he’s been on the bench so long. And one of those cases is the Garza case, which just came to the bench a few months ago. And in that case there was a illegal immigrant minor who was in detention and wanted to get an abortion. And the ACLU was challenging the federal government to allow her to have that abortion. Kavanaugh dissented from the majority opinion on the D.C. circuit court that would allow the teen to get that abortion. He did not think the government should be required to facilitate an abortion. Conservatives still had concerns with that dissent. They thought that he didn’t go far enough that he should have said something about the teenagers right to an abortion, that it didn’t exist in the first place. So I think there was concern that it wasn’t more robust,

So okay then let’s move on to his views on the administrative state and that is the numerous government agencies such as the SEC and the EPA that can ensnare citizens in costly enforcement of the rules even though those officials are not elected and aren’t really accountable to anybody. What are Kavanaugh’s views towards that?

BELZ: He is skeptical. He serves on the D.C. circuit, so he gets a lot of cases that deal with regulatory issues. So it’s a matter that he’s ruled on many times, and what you could call him is a Chevron skeptic. Chevron is a doctrine that defers to, that allows judges to defer to federal agencies when a law is ambiguous, so it essentially gives more power to bureaucrats to determine how a law will be enforced or how regulation will be enforced. He is skeptical of the Chevron doctrine. It seems like the Supreme Court with him on it might move in the direction of tightening the administrative state a little bit more.

Well let’s move on now to the area of civil rights, and I’m wondering where Judge Kavanaugh comes down in that area. The ACLU and like-minded organizations like that have  sounded the alarmist bell over it, but some conservatives worry that he’s soft on civil rights for religious people. So that’s a long way of asking you, Emily, what do you think about Judge Kavanaugh’s record in the area of civil rights? Just generally.

BELZ: Generally, I think that we can look at Justice Kennedy in one sense because he wanted to make sure that the nominee who followed him followed his civil rights legacy. I think one big thing that he would term civil rights was his ruling in Obergefell that legalized same-sex marriage. And I think that we can safely say that Obergefell is going to stand one way or the other. And I think part of that is Kennedy wanting to make sure that someone filled his shoes who would preserve his legacy. But I think it’s also just the fact that the legalization of marriage has so many implications in so many areas of law that it would be really difficult for the Supreme Court to undo that. Even in the Masterpiece case that came down, we haven’t heard any hints from the conservatives that they’re looking to reverse Obergefell. So that seems like at least a big case that is probably going to stay intact.

Okay. Now, finally, last but certainly not least, how about Judge Kavanaugh’s views on religious liberty? What do we know?

BELZ: We actually have a number of big cases from him on that. He’s ruled in over 300 cases as a judge. So we’re, I’m just starting to piece through a lot of it, but one of the big cases was Priests for Life, which was one of the challenges to the HHS mandate towards religious nonprofits. And in that case, the D.C. Circuit ruled against Priests for Life, but he issued a pretty strong dissent in favor of the religious claimants. And the one issue with his dissent that I’ve heard is that he did say that the government had a compelling interest, which is one prong of the Religious Freedom Restoration Act legal test for the constitutionality of the statute. And that’s something that the Supreme Court did not come to the conclusion that there was a compelling interest there, so that’s one little twist that people have criticized him on in that dissent.Um, so that’s just a little tip of the iceberg. There’s a lot of his work on religious freedom that I haven’t even delved into and cases that I know you, Mary, have looked at that I haven’t looked at. So, um, we have a lot of work to do in the next month or so.

Yes, we do. Big questions and lots of answers yet to come. Emily Belz covers the Supreme Court for WORLD Magazine. Emily, thanks for bringing us some highlights of Judge Kavanaugh’s jurisprudence so far.

BELZ: Thank you so much for having me.

(AP Photo/Jose Luis Magana) Supreme Court nominee Judge Brett Kavanaugh and Vice President Mike Pence arrive at the U.S. Capitol in Washington.

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