Kavanaugh Will Be at End of Court Bench, Center of Attention

(Bloomberg) -- Brett Kavanaugh will be at the end of the U.S. Supreme Court’s bench when he hears his first argument as a justice Tuesday. But he’ll be the center of attention.

After surviving one of the most contentious confirmation battles in American history, Kavanaugh faces the challenge of defining himself on the top court and winning the trust of his eight new colleagues.

He’ll do so even as controversy continues to swirl over his selection by President Donald Trump and the sexual assault allegations that almost derailed it. Protesters occupied the steps of the court after the Senate confirmed Kavanaugh on Saturday, and they may be back for his first appearance on the bench.

Kavanaugh’s first cases will be mostly technical, but later this term he’ll hear a case that could affect criminal investigations of people tied to Trump. The court is considering overturning the “separate sovereigns” doctrine, which lets a state and the federal government each press its own prosecution stemming from the same conduct. A ruling to overturn the doctrine could mean that pardons by Trump in federal cases would block similar state charges, even though states could continue to pursue unrelated charges against the same people.

The separate-sovereigns doctrine dates to the mid-19th century as an exception to the constitutional protection against double jeopardy. Arguments haven’t been scheduled but could be held in December.

On Kavanaugh’s first day, though, the business at hand will be more mundane. He and his new colleagues will tackle two previously little-noticed cases involving the Armed Career Criminal Act, a federal law that imposes heightened penalties on people who repeatedly commit serious crimes.

The pair of hour-long sessions will give Kavanaugh, 53, his first chance to ask questions as a justice, most likely before a packed courtroom of several hundred people. Kavanaugh was an active questioner while serving on a federal appeals court in Washington for a dozen years.

Later this term, the justices are being asked in appeals to decide whether federal law bars job discrimination based on sexual orientation and gender identity. They also could soon be drawn into the fight over Trump’s effort to rescind deportation protections for young undocumented immigrants.

And before long, the court could be confronted with Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election and possible obstruction of justice by Trump. The Supreme Court has never said whether a president must obey a subpoena to testify in a criminal investigation.

Kavanaugh’s colleagues have signaled that they’ll welcome him, notwithstanding any misgivings some may have had over his Senate testimony. Most of his new colleagues were on hand to see him sworn in on Saturday, as was the man Kavanaugh succeeded, retired Justice Anthony Kennedy.

Two liberal justices -- Sonia Sotomayor and Elena Kagan -- said Friday they want to see the court stay above the political fray.

“We have to rise above partisanship in our personal relationships,” Sotomayor said. “We have to treat each other with respect and dignity, and with a sense of amicability that the rest of the world doesn’t often share.”

That will be a challenge given the ferocity of the confirmation fight and Kavanaugh’s testimony, in which he accused Democrats of arranging a “calculated and orchestrated political hit” to try to defeat his nomination. But Walter Dellinger, who served as President Bill Clinton’s top Supreme Court lawyer, says he thinks the justices will rise to the occasion.

“I would guess that there are justices who were genuinely shocked at how partisan his remarks were,” Dellinger said. “But I think the tendency is to get over that on the court and to put that behind you. The justices always hope for the best from the new justice, even if they might fear the worst.”


Kagan, one of the court’s key bridge-builders, is especially likely to reach out to Kavanaugh. In recent years she’s tried to work with Kennedy and Chief Justice John Roberts to craft limited rulings and avert more sweeping conservative victories. Her task, however, will be tougher with Kavanaugh, whose appeals court record suggests he’ll be more deeply conservative than either Roberts or Kennedy.

Speaking Friday, Kagan said the justices can’t afford to have bad relationships because they would lose the ability to persuade their colleagues.

“We live in this world where it’s just the nine of us,” Kagan said. “We are the consummate repeat players.”

Still, the adjustment could be awkward at times. Kavanaugh’s new benchmates will include Justice Ruth Bader Ginsburg, who’s praised the “Me Too” movement of women coming forward to say they were the subjects of sexual misconduct, as well as Justice Clarence Thomas, whose 1991 nomination almost failed in the face of sexual harassment allegations.

For his part, Kavanaugh isn’t likely to bring a partisan attitude to the court, says retired Washington appellate lawyer Maureen Mahoney.

“Judge Kavanaugh has not behaved as a partisan on the D.C. Circuit and is among the most highly respected jurists in the country,” Mahoney said. “He is not going to change his judicial temperament on the bench just because he was openly anguished about the confirmation process.”

©2018 Bloomberg L.P.