Supreme Court Nominations

ABA committee gives Kavanaugh a well-qualified rating

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U.S. Supreme Court nominee Judge Brett Kavanaugh via Wikimedia Commons.

The confirmation hearing for U.S. Supreme Court nominee Brett Kavanaugh begins Tuesday, with an introduction by a liberal litigator and later testimony by the ABA committee that rates judicial nominees.

The ABA Standing Committee on the Federal Judiciary on Friday gave its highest rating of well-qualified to Kavanaugh, a 53-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh was nominated July 9 to replace Justice Anthony M. Kennedy, who announced his retirement June 27. Kavanaugh is a former Kennedy clerk.

The ABA standing committee evaluates nominees based on professional competence, integrity and judicial temperament. Two representatives from the ABA committee are scheduled to appear before the Senate Judiciary Committee on Friday. They are standing committee chair Paul Moxley of Salt Lake City and former committee member John Tarpley of Nashville, Tennessee, who led the review.

Among those scheduled to introduce Kavanaugh on Tuesday is Arnold & Porter partner Lisa Blatt, a Supreme Court litigator who describes herself as a liberal Democrat and feminist, the National Law Journal reports. She had supported Kavanaugh in an Aug. 2 Politico op-ed that called Kavanaugh a supremely qualified “superstar” who deserves to be confirmed.

Also supporting Kavanaugh is Yale law professor Akhil Reed Amar, a Hillary Clinton supporter who said in a New York Times op-ed that Kavanaugh is a superb, widely respected nominee whose ideas have influenced the U.S. Supreme Court. Amar is on the witness list for the Republican majority, the National Law Journal reports.

Others testifying in support of Kavanaugh include former law clerks, a former student of Kavanaugh’s at Harvard Law School, and several BigLaw lawyers, including former U.S. solicitors general Ted Olson of Gibson, Dunn & Crutcher and Paul Clement of Kirkland & Ellis.

Among those testifying on behalf of Democrats is John Dean, who was White House counsel to former President Richard Nixon. Dean pleaded guilty to obstruction of justice for the Watergate cover-up. His testimony before the Senate Watergate Committee implicated Nixon in the cover-up, leading to Nixon’s resignation, the Washington Post and the New York Times report.

Dean told the Post he would testify about Kavanaugh’s views on executive power and his statements on the Nixon tapes case, a decision that Kavanaugh once questioned in a panel discussion.

Kavanaugh could be more conservative than Kennedy, the justice he is replacing, in several areas of the law, according to University of California at Berkeley law dean Erwin Chemerinsky. Kavanaugh could provide a conservative vote that shifts the court to the right in the areas of abortion rights, affirmative action, gay rights, the exclusionary rule, and disparate impact liability.

See also: Live blog of confirmation hearings, day 1: Hearings begin amid records dispute

The Lawyers’ Committee for Civil Rights Under Law is opposing Kavanaugh after examining about 300 of his opinions. “Based upon our review,” the group said in a report, “we believe that Judge Kavanaugh’s views reflect a very narrow definition of what constitutes a civil right and an undue skepticism about the importance of protecting those rights in the courtroom. Judge Kavanaugh’s record raises serious concerns that he would weaken voter, anti-discrimination and environmental protections, limit reproductive rights and access to quality healthcare, and insulate the president and the government from the rule of law.”

The public is somewhat split on Kavanaugh, according to an August poll of likely voters by C-SPAN, which is broadcasting the confirmation hearing on C-SPAN 3. Thirty-nine percent of people surveyed supported Kavanaugh’s confirmation, and 35 percent opposed it. Twenty-six percent had no opinion, according to a press release.

Sixty-nine percent of the people polled said they have been following the news about the Supreme Court nominee, but only 35 percent could name Kavanaugh as the nominee.

When Kavanaugh accepted Trump’s nomination July 9, he told a national TV audience that he believes judges should interpret rather than make the law. Judges should “interpret the Constitution as written, informed by history and tradition and precedent,” he said.

He also stressed his Catholic roots. He was an altar boy as a youth and now serves meals to the homeless for Catholic Charities. He also coached youth basketball teams at Blessed Sacrament School, where his two daughters go to school.

Kavanaugh’s Senate Judiciary Committee questionnaire provides information on his background. He was appointed to the D.C. Circuit in May 2006 after his nomination by President George W. Bush. He is a graduate of Yale’s college and law school, and, before his Supreme Court clerkship, he clerked for Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals and for Judge Walter Stapleton of the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

Kavanaugh was also a partner in Kirkland & Ellis and worked for independent counsel Ken Starr. He was an associate counsel to Bush from 2001 to 2003, a senior associate counsel to Bush in 2003, and assistant and staff secretary to Bush from 2003 to 2006.

Kavanaugh met his wife, Ashley, when they were both working in the Bush White House.

When working for the independent counsel, Kavanaugh helped write Starr’s report arguing that President Bill Clinton could be impeached for lying to his staff and misleading the public. He also suggested 10 sexually explicit questions for President Clinton about his relationship with Monica Lewinsky.

“The president has disgraced his office, the legal system and the American people, ” Kavanaugh wrote in his memo to Starr, “by having sex with a 22-year-old intern and turning her life into a shambles—callous and disgusting behavior that has somehow gotten lost in the shuffle.”

But Kavanaugh argued in another memo to Starr that the independent counsel should not pursue an indictment of Clinton while he was in office. He expressed a similar view in a 2009 law review article arguing that Congress should pass laws to protect presidents from criminal and civil cases until they have left office. Impeachment rather than indictment is the best way to deal with a president who “does something dastardly,” he wrote.

Kavanaugh has written several notable opinions. They include:

SeaWorld v. Perez. Kavanaugh’s dissent sided with SeaWorld when the theme park challenged a citation for exposing its trainers to hazards when working with killer whales. The case stemmed from the death of SeaWorld trainer Dawn Brancheau, who was killed by a whale that grabbed and held her underwater during a performance.

Heller v. District of Columbia. Kavanaugh argued in a dissent in this “Heller 2” case that the Second Amendment protects the right to own semi-automatic rifles.

Garza v. Hargan. Kavanaugh dissented from a decision allowing an immigrant teen being held in a government shelter to have an abortion.

PHH Corp. v. CFPB. Kavanaugh wrote a dissent contending that massive power given to the director of the Consumer Financial Protection Bureau was unconstitutional. Kavanaugh’s solution was to strike down the provision requiring cause for removal of the agency’s director.

Related articles: “Kavanaugh is said to be a front-runner to replace retiring Justice Anthony Kennedy” “Meet Brett Kavanaugh, Trump’s nominee for the Supreme Court” “ABA committee to evaluate Trump’s Supreme Court pick Kavanaugh” “Chemerinsky: “What’s at stake if Kavanaugh is on the Supreme Court” “What Brett Kavanaugh’s SeaWorld dissent says about a likely Supreme Court record in labor cases” “Kavanaugh seems to shun gun registration laws, but may not oppose license training requirements” “Full DC Circuit upholds structure of Consumer Financial Protection Bureau” “Kavanaugh once questioned the Nixon tapes decision; was he espousing a ‘unitary executive’ theory?” “Kavanaugh memo urged independent counsel Starr not to pursue Clinton indictment while in office” “Did Kavanaugh’s ‘one race’ assertion signal a vote against racial preferences?” “Kavanaugh email shows offer to prepare ex-AG Ashcroft on attorney-client monitoring issue” “Supreme Court nominee Kavanaugh got mostly glowing evaluations from his law students” “Democrats want to know whether Kavanaugh had any role in torture and detainee policies under GW Bush” “Supreme Court nominee Kavanaugh’s record on surveillance could raise questions for Rand Paul” “Kavanaugh praised Rehnquist’s stand against unenumerated rights in Roe v. Wade dissent” “Love of baseball contributed to significant credit card debt for Supreme Court nominee”

SCOTUSblog: “Blog resources on Judge Kavanaugh’s record and nomination”

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