Brett Kavanaugh of the Court of Appeals for the DC Circuit was nominated as the next Associate Justice for the Supreme Court. In this episode, our initial thoughts on his nomination, some of the big question marks about him, and what’s next.
Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at firstname.lastname@example.org…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by a member of the ragtag gang of the usual suspects… Adam Shah! Lena Zwarensteyn continues to be on assignment but says, “hi.”
Don nominated Brett Kavanaugh to be the next Associate Justice
Brett Kavanaugh, is a judge on the U.S. Court of Appeals for the D.C. Circuit where he has been since 2006. He has a lengthy record on that court and we have plenty of information on his points of view on a variety of issues.
He has a fairly political background, most notably working on the Starr Commission.
Stats and data nerds… UVA professor Kevin Cope analyzed his rulings, and has him ranked somewhere ideologically between Justices Gorsuch and Alito. So, yeah.
Trivia: he went to Georgetown Prep in DC with another guy you might have heard of… Neil Gorsuch.
Tim: I cannot believe this didn’t leak. Also, in retrospect, it seems obvious why Don picked him considering Kavanaugh’s position on criminal investigations of the President “should be deferred” while he is in office. That alone will get a large amount of attention in private meetings and the hearings.
Adam We are going to be hearing a lot about the case dealing with an immigrant in government custody seeking an abortion. We’re going to be hearing a lot about the Starr report. I think the two focuses are going to be abortion and partisanship. The way to get conservative Democrats on board with opposition is to say he’s just too partisan for the Court. The way to get Collins and Murkowski is to convince them he’s a likely vote to overturn Roe.
His record really is partisan. He basically wrote the Starr report. He represented Elian Gonzalez when it was clear that Republicans thought it would be a way to hurt Gore in 2000. He was part of the Bush recount team. He picked judges for Bush. He has repeatedly ruled against unions and the ACA (although not in the most high-profile ACA case).
Questions We Have on Issues
Having been in the election law-o-sphere for a stretch of years, I’m very interested in what we will learn about the VRA, voter ID laws, stance on Citizens United, and much more. I have a laundry list of fears, but I think the Court has a chance to skew anti-democratic (small d) with this new nominee. Section 2 of the VRA may be at risk, minority communities may find SCOTUS more amenable to putting up voting registration barriers and corporate influence on elections may be cemented in for decades.
A good follow on all of this is UC Irvine’s Rick Hassen.
Having… studied J. Kavanaugh’s writings in this and related areas, to me the only question is whether he’d be more like Justice Scalia (voting to strike down more and more campaign limits) or like Justice Thomas (voting to do that AND strike down campaign finance disclosure laws).
One other big issue for me is environmental law (my OG lawyerdom). Kavanaugh’s been a consistent vote against environmental enforcement. We’ll cover more of that in future episodes.
Also… what about Griswold? But that’s just because it’s my favorite.
Kavanaugh’s work on labor and employment law: The other area besides environmental law and presidential power that the DC Circuit really deals with all the time is labor law. Any decision by the National Labor Relations Board, which decides disputes between employers and employees/unions can be appealed to the DC Circuit (as well as the circuit that has territorial jurisdiction on the issue). He has been strongly pro-corporate on this.
Guns: Thomas (sometimes joined by Gorsuch and Alito) have been going nuts about the Court ignoring all gun rights cases since striking down DC’s and Chicago’s handgun bans. The Court hasn’t taken up decisions by lower courts upholding assault weapons bans, ammunition bans, and other restrictions. What is Kavanaugh’s view on guns? If there’s a 4th justice who sides with Thomas, that means the Court will start hearing these cases, and then we might be in a situation where there is a constitutional right to an AR-15.
What to expect from here
Adam on process
Last episode I said this might be a fait accompli. I don’t think that’s the right way to look at this now. Yes, the most likely scenario is this goes by party lines, but… the margin is so razor thin — perhaps only 1 vote. I think the GOP would like Democrats to throw their hands up like they did for Garland and then Gorsuch. But as we keep asking questions and revealing more about what this nomination means for areas of law that have real-world impacts on people, I have to believe there’s a chance the American public can demand a centrist in this 50-50 country, particularly in light of the whole stolen seat thing (see Season 1 of Advice & Consent).
Brett Kavanaugh is no centrist. Not by a long shot. There are a lot of principled reasons to vote against him.