The Artful Dodge That Saved Kavanaugh From Supreme Court Doom

(Bloomberg) -- In 2011, Judge Brett Kavanaugh was selected at random to rule on whether President Barack Obama’s signature legislative achievement, the Affordable Care Act, was constitutional.

It was a career-defining moment for the aspiring Supreme Court justice, who was 46 at the time. The case promised to be a political bomb splitting two powerful forces. On one side was the Republican Party, which made Kavanaugh a judge and wanted to see the law invalidated under a limited vision of federal authority to regulate interstate commerce. On the other were millions of Americans poised to gain access to health insurance -- in some cases for the first time ever -- backed by scholars who said axing the law would be a grave error of judicial activism and taint the courts.

The Artful Dodge That Saved Kavanaugh From Supreme Court Doom

Kavanaugh ducked the issue.

While the other two judges on the D.C. Circuit Court of Appeals panel ruled to uphold the law, Kavanaugh dissented and said the lawsuit should be dismissed for lack of standing until after a tax penalty at the heart of the challenge took effect. He cited an 1867 statute known as the Tax Anti-Injunction Act. In doing so, he managed to avoid touching the case on its merits.

Savvy Move

Seven years later, Kavanaugh, now 53, is President Donald Trump’s nominee for the U.S. Supreme Court, and if he secures Senate confirmation, that artful dodge is likely to have protected him from political doom.

“When his decision came down, I remember thinking ‘Oh, well that’s savvy,’" said Orin Kerr, a professor at the University of Southern California’s Gould School of Law. “Now, that doesn’t mean it was wrong. Cynicism has its role, but it may be his good faith belief. It just so happened that those were two pretty unpalatable and tough political options at the time, if he was thinking about that. And his decision was a way out.”

Had Kavanaugh voted to validate the ACA, or Obamacare as it’s popularly known, he probably wouldn’t have been nominated by Trump. As a candidate in 2016, Trump made opposition to Obamacare a key campaign platform. He promised voters he wouldn’t pick judges who would uphold the law, and criticized Chief Justice John Roberts for doing so in the court’s 5-4 decision in 2012.

But had Kavanaugh voted to strike it down, his confirmation prospects now would be in jeopardy with pivotal red-state Democrats and moderate Republican senators who want to keep the law’s protections for people with pre-existing medical conditions.

Eyes on Prize

Kerr noted that around the time of the D.C. Circuit ruling, the widespread legal consensus was that the Supreme Court would uphold Obamacare by a margin as lopsided as 8 to 1, given its precedent on the commerce clause.

“So a conservative circuit judge would be in a bind. Follow the precedent and you outrage your party. Strike down the law and you not only have to reach, but you’re out of step with where the Supreme Court is likely to be,” Kerr said. “And either of those options make your future prospects tougher.”

“It helped,” Jonathan Adler, a Case Western Reserve University law professor and member of the Federalist Society, said of Kavanaugh’s move to dismiss the case. “With the benefit of hindsight, was that better than if he had joined the panel’s majority in that case? Sure.”

“But I don’t share the view that this was some sneaky way to try and preserve his viability,” Adler said, arguing that his position was a plausible reading of the relevant law.

Kavanaugh’s fate stands in contrast to that of Jeffrey Sutton, a conservative jurist on the Sixth U.S. Circuit Court of Appeals who was once seen as being on track for the Supreme Court -- until he voted to uphold the ACA when it came before him. Adler said Sutton would have been a “strong nominee” but “it’s certainly possible” that decision kept him off Trump’s list of prospects.

Still, Kavanaugh has a needle to thread on Obamacare, which could come back before the Supreme Court, potentially in a lawsuit from Texas. That case, which is backed by the Trump administration, calls for invalidating the law, including its pre-existing condition protections. But the senators he might have alienated had he ruled differently say they have an open mind.

“It’s an issue that I need to talk to him about,” said Senator Susan Collins of Maine, a moderate Republican who last year voted to stop her party’s efforts to repeal Obamacare. “I feel very strongly about the consumer protections in the ACA,” she said, noting that Kavanaugh “did not seem eager to wade in to the Affordable Care Act issues” in 2011.

Joe Manchin

West Virginia Democratic Senator Joe Manchin, who voted for Trump nominee Neil Gorsuch in 2017 and faces re-election in November in a state the president won in a 42-point landslide, is a strong proponent of the ACA’s protections for people with pre-existing conditions. His state skews older and less healthy than the U.S. average, with high rates of obesity, smoking, addiction, heart disease and diabetes.

Vowing to scrutinize Kavanaugh on health care, Manchin said a potential Supreme Court decision “will directly impact almost 40 percent of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.”

Progressives are seeking to undercut the nominee by casting him as a someone who could be relied on for an anti-Obamacare vote on the high court.

“If you read his dissent, it’s obvious Kavanaugh is straining to avoid upholding the law because he doesn’t want to get crosswise with national Republicans,” said Brian Fallon, an aide to Hillary Clinton’s 2016 campaign who now runs the liberal judicial group Demand Justice. “His handling of the 2011 case shows he will put politics above the law in interpreting the constitutionality of key provisions like protections for people with pre-existing conditions.”

Court watchers say Kavanaugh -- a savvy political operator who served on Kenneth Starr’s independent counsel legal team in the 1990s, the George W. Bush 2000 campaign, and the Bush White House -- has been positioning himself for the Supreme Court for decades.

Raising His Profile

“He’s always been considered a short-lister for a Republican president. He’s been thought to be ambitious about getting that position," said Kerr, who noted that Kavanaugh has written law review articles periodically that have raised his profile, and has a knack for hiring law clerks who go on to clerk for the Supreme Court. “Some judges care about that. Others don’t.”

Another example of Kavanaugh threading a needle was a case in late 2017 that melded two other politically explosive issues: immigration and abortion. In a sharply worded dissent, he said the D.C. Circuit erred by ordering the Trump administration to allow a pregnant undocumented minor to be extracted from custody to terminate her pregnancy.

The judge said the government should have been allowed more time to find the teenage girl a sponsor so that it wouldn’t be in the position of “facilitating” the abortion she ultimately received. He stopped short of backing one of his colleagues who said the girl, as a person in the U.S. illegally, didn’t have a constitutional right to an abortion.

Kavanaugh wrote that the court was establishing a right to “obtain immediate abortion on demand” and exerting itself on a “momentous life decision” -- rhetoric echoing that of anti-abortion advocates. He called the majority decision “a radical extension of the Supreme Court’s abortion jurisprudence” in Roe v. Wade and subsequent precedents, which he made a point to say he respects.

Just 24 days later, Kavanaugh was added to Trump’s updated list of Supreme Court prospects.

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