Thursday, July 12, 2018

Justice Kavanaugh?

President Trump's nominee to replace Justice Kennedy on the Supreme Court has been named...Judge Brett Kavanaugh of the D.C. Circuit Court.

Judge Kavanaugh in many ways is an obvious choice.  Yale educated, previously clerked for Justice Kennedy in addition to two appellate judges, and worked in the solicitor general's office for George W. Bush.  He has been dubbed by the left as the "Forrest Gump of Republican Politics," involved in a large number of major events in Conservative politics.   Working with Ken Starr on the Clinton investigation and a primary author on the Starr Report.  Representing two members of Congress who filed a brief in a Supreme Court case supporting a New Mexico school district's effort to maintain student-led prayer at football games.  Representing Elian Gonzalez's relatives trying to keep him in Miami.  Representing Jeb Bush in his fight to overcome constitutional hurdles on his school voucher program.  On George W. Bush's legal team in the 2000 election court battle.

His nomination is going to be a very interesting process.  With Senator John McCain out due to illness and a question mark as to whether he would or could return for the vote, the Senate is currently Republicans 50, Democrats 49.  The narrowest of margins for an approval.  Two pro-choice Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, are being looked at as potential swing voters, as are Democrats in states Trump carried, like Joe Donnelly of Indiana and Joe Manchin of West Virginia.  It could very well come down to the wire with a long-drawn out and hard fought confirmation process.

In the interim, it is interesting to look over Kavanaugh's record on various issues, which gives both Republicans and Democrats reason for praise and pause.

Seven-Sky v. Holder - A constitutional challenge to the Affordable Care act.  The D.C. Circuit upheld the law as legitimate under the Commerce Clause.  Kavanaugh dissented, not because he thought the law was unconstitutional, but because he thought the court lacked jurisdiction to consider the case.  In his dissent, he raised the argument of the Affordable Care Act as a tax within Congress' power, which Justice Roberts used in the Supreme Court decision upholding the Affordable Care Act.

Newdow v. Roberts - D.C. Circuit case from 2010 in which atheist activist Michael Newdow challenged the "so help me God" provision in the presidential oath.  Kavanaugh agreed that the challenge failed, but concluded that the plaintiffs at least had standing to bring the case, a bit of an expansion on Supreme Court precedent.

Priests for Life v. Health and Human Services - 2015 religious liberty challenge to Obamacare's contraceptive mandate requiring the employer to provide health insurance to their employees including all FDA approved contraceptives, apply for an exemption by filing a form and allowing the insurer to continue to provide from separate forms, or to pay a fine to the government.  Kavanaugh dissented from the court's denial of a full court hearing and would have ruled in favor of the challenge finding the mandate to unconstitutionally burden religious freedom.  He did though recognize the government's "compelling interest in facilitating women's access to contraception."

Kaemmerling v. Lappin - a 2008 religious liberty case in which a prisoner was claiming that a federal law required him to provide a DNA sample in violation of his free exercise of religion.  Kavanaugh joined the majority opinion in ruling against the prisoner.

Garza v. Hargan - a 2017 immigration case in which a teenager in the United States illegally petitioned to be released from immigration custody to have an abortion.  After a federal judge found she could be released, Kavanaugh wrote an initial panel decision blocking the abortion for up to 10 more days to give the government time to find the 17-year-old an immigration sponsor.  The full court then overturned his ruling.  Kavanaugh dissented arguing that requiring the government to assist the girl in obtaining an abortion would ignore the government's "permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion."

White Stallion Energy Center LLC v. EPA - 2014 opinion regarding EPA emissions standards set in 2012 for mercury and other pollutants from coal-and oil-fired electric utility steam generating units.  One of the key issues was whether the EPA was required to consider the costs imposed by the rule.  THe majority of the court agreed with the EPA that it did not have to consider the costs.  Kavanaugh dissented surprised the EPA did not consider the costs and viewing it unreasonable for the EPA to do so.

Heller v. District of Columbia - 2011 Second Amendment case regarding a District of Columbia ordinance banning most semi-automatic rifles.  The D.C. Circuit Court upheld the ban.  Kavanaugh dissented aruging the Second Amendment included the right to own semi-automatic rifles.  This ban would be overturned by the Supreme Court (agreeing with Kavanaugh).

It may be his work in the Starr report and a 2009 law review article that have the most opportunity for impact in his potential time on the bench.  In the Starr report, Kavanaugh helped outline 11 possible grounds for impeachment including broader interpretations for impeachment than had ever been used.  These included lying to aides "knowing they would relay those falsehoods to the grand jury" and lying to the American public, with senior officials, including the press secretary, relying on those denials in their own misleading public statements.  Both grounds could prove very interesting with the ongoing Mueller investigation.

Further, the article in the 2009 Minnesota Law Review contains Judge Kavanaugh's belief that Congress should pass laws that would protect a president from civil and criminal law suits until they are out of office, leaving impeachment as the only removal process.  Again, something to file away in light of the ongoing investigations.

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