Trump’s Supreme Court Nominee Is a Washington Insider and Regulation Skeptic

(Bloomberg) -- Judge Brett Kavanaugh, President Donald Trump’s choice for the U.S. Supreme Court, is a Washington insider who has been at the center of political and legal controversies for most of his career.

Over the last two decades, the Washington native was a top deputy to independent counsel Kenneth Starr on the investigation of President Bill Clinton and worked as a key aide to President George W. Bush. As a federal appeals court judge, he has struck down federal regulations, questioned abortion rights and backed gun freedoms.

"He is considered a judge’s judge, a true thought leader among his peers," Trump said in introducing his choice Monday night at the White House. The president called Kavanaugh "one of the finest and sharpest legal minds of our time."

Kavanaugh told the East Room audience he was proud that most of his law clerks have been women, and he talked about coaching his two school-age daughters’ basketball teams. He said he plans to start meeting Tuesday with members of the Senate, which will consider confirmation, and he promised to keep an open mind on the high court.

“A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent," he said.

His confirmation by the Senate, which Republicans control 51-49, could herald a historic shift, potentially creating the most conservative Supreme Court in generations. The court could shift to the right on abortion, gay rights, affirmative action, the death penalty and federal regulatory power. Kavanaugh, 53, would succeed Justice Anthony Kennedy, who almost always was the court’s deciding vote on those issues.

Kavanaugh drafted much of the Starr Report, which led to Clinton’s impeachment and included graphic details about the president’s sexual relationship with White House intern Monica Lewinsky.

A decade later, he wrote that sitting presidents shouldn’t have to respond to lawsuits or criminal investigations, and he called on Congress to pass legislation shielding the president. That stance could become a central issue in the confirmation fight, raising questions about how he would rule in cases involving Trump and special counsel Robert Mueller’s probe.

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"A president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president," Kavanaugh wrote in a 2009 article for the Minnesota Law Review. "If the president does something dastardly, the impeachment process is available."

Kavanaugh’s duties in the Bush White House included handling judicial nominations. Bush nominated Kavanaugh to the federal appeals court in Washington in 2003, but Democrats blocked his confirmation for three years.

Democrats said Kavanaugh was too partisan to become a judge. Senator Chuck Schumer of New York, now the Democratic leader, called Kavanaugh a "very bright legal foot soldier." He was eventually confirmed in 2006.

On the appeals court, Kavanaugh has largely been a foe of government regulation, voting to strike down rules issued by the Environmental Protection Agency under President Barack Obama. He expressed doubt about Obama’s Clean Power Plan, though the appeals court never ruled on the issue.

Kavanaugh also said he would have thrown out the Obama-era net neutrality rule, which barred internet service providers from slowing or blocking rivals’ content. He voted to give the president the power to fire the director of the Consumer Financial Protection Bureau for any reason.

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Kavanaugh voted to throw out a constitutional challenge to Obamacare in 2011 but left open the possibility the law could be overturned later. He said his colleagues’ decision to uphold the law, and its requirement to either buy insurance or pay a penalty, offered "no real limiting principle" and would have "extraordinary ramifications."

Although he hasn’t ruled directly on abortion rights, he sided with the Trump administration in a fight with an undocumented teenager seeking to end her pregnancy while in federal custody.

In a dissenting opinion, Kavanaugh said he would have blocked the girl, who was 15 weeks pregnant, from having an abortion for at least another week. The government said it was trying to find a sponsor for the girl so that officials wouldn’t have to "facilitate" her trip to an abortion clinic. The girl later had the procedure.

Kavanaugh said the majority was creating "a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand." He didn’t go as far as the Trump administration sought, however, ducking broader questions in the case.

He has voted to give the government broad power to detain enemy combatants, and he has backed Second Amendment gun rights.

Gun Rights

In a 2011 gun case, Kavanaugh voted to strike down a District of Columbia law that banned some semi-automatic rifles and required all firearms to be registered. The judge said in a dissenting opinion that he was following the dictates of a 2008 Supreme Court ruling that struck down the city’s handgun ban.

“Holding these D.C. laws unconstitutional would not lead to nationwide tumult,” Kavanaugh wrote. “Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms.”

Like Trump’s first Supreme Court selection, Justice Neil Gorsuch, Kavanaugh is a former law clerk for Kennedy.

He is well known among the people who could become his new colleagues. More than 40 of his law clerks have later clerked on the Supreme Court, working for justices across the ideological divide. His dissents at times have served as signals to the Supreme Court’s conservatives to take up an appeal.

Kavanaugh served on Bush’s legal team during the Bush v. Gore court battle in late 2000, when the Supreme Court stopped a Florida ballot recount and sealed the Republican’s victory.

Yale Law Graduate

Kavanaugh went to Yale College and Yale Law School. His confirmation would mean the Supreme Court would continue to have only Ivy League-educated justices.

His nomination will test Senate Majority Leader Mitch McConnell’s professed goal of winning confirmation before the Supreme Court formally opens its next term Oct. 1. Prior to the selection, McConnell spoke to White House officials about the volume of material from the judge’s career that would need to be pored through, according to people familiar with the process.

That will include Kavanaugh’s time working for Starr. His role on the team was primarily as a brief writer and strategist, said Solomon Wisenberg, a Washington lawyer who worked alongside Kavanaugh.

"I thought his work product was brilliant," Wisenberg said in an interview. "I
thought his work ethic was phenomenal. I thought he was, in a quiet kind of way, a very funny guy."

Kavanaugh went to the same Catholic high school, Georgetown Preparatory School in Bethesda, Maryland, as Gorsuch.

He and his wife, Ashley, have two daughters. He is a runner who has twice completed the Boston Marathon.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net;Andrew Harris in Washington at aharris16@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo

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