Judge, U.S. Court of Appeals for the D.C. Circuit
Education: Yale University; Yale Law School
Clerkships: Walter Stapleton (3rd Circuit); Alex Kozinski (9th Circuit); Justice Anthony Kennedy
Brett Kavanaugh has served on the powerful D.C. Circuit—often regarded as a stepping-stone to the Supreme Court—for 12 years.
Before joining the bench, he worked as a senior associate counsel and assistant to President George W. Bush. He also worked for Independent Counsel Ken Starr and was the principal author of the Starr Report to Congress on the Monica Lewinsky scandal. Bush nominated him to the D.C. Circuit in 2003, but he was not confirmed until 2006, by a vote of 57-36.
Kavanaugh has written extensively about the separation of power and statutory interpretation, and he co-authored a book on judicial precedent (with Bryan Garner and 11 appeals court judges, including then-Judge Neil Gorsuch). Drawing from his experience working for Bush, Kavanaugh argued in an articlethat Congress should consider enacting a law that would protect a sitting president from criminal investigation, indictment, or prosecution while in office. He explained, “The indictment and trial of a sitting president…would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
He delivered the 2017 Joseph Story Distinguished Lecture at The Heritage Foundation—joining the ranks of Justice Clarence Thomas and many other renowned federal judges. He spoke eloquently about the judiciary’s essential role in maintaining the separation of powers.
On the bench, Kavanaugh has written scores of opinions, including PHH Corp. v. Consumer Financial Protection Bureau (2016), finding the Consumer Financial Protection Bureau’s structure is unconstitutional (later reversed by the full D.C. Circuit). He dissented from his court’s ruling that the Environmental Protection Agency could disregard cost-benefit analysis when considering a proposed rule in Coalition for Responsible Regulation v. EPA(2012). The Supreme Court later reversed that decision, citing Kavanaugh’s dissenting opinion.
In Loving v. IRS (2013), Kavanaugh ruled that the IRS exceeded its statutory authority when it attempted to regulate tax preparers. And in al-Bahlul v. U.S.(2015), Kavanaugh joined the per curiam (unsigned) en banc opinion, affirming Ali Hamza al-Bahlul’s conviction by a military commission for conspiracy to commit war crimes.
Before the Supreme Court’s landmark Citizens United v. FEC decision, Kavanaugh ruled in Emily’s List v. FEC (2009) that the commission’s regulation restricting how non-profits raise and spend money violates the First Amendment.
He wrote the opinion In Re Aiken County (2013), dealing with the Obama administration disregarding federal law in the context of a dispute over nuclear waste storage at Yucca Mountain in Nevada.
He upset some conservatives with a dissenting opinion in Seven-Sky v. Holder(2011), in which he said the federal courts lacked jurisdiction to hear the constitutional challenge to Obamacare. He explained, “There is a natural and understandable inclination to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.”
Last fall, he dissented from the D.C. Circuit’s ruling in Garza v. Hargan that cleared the path for an illegal alien minor to immediately obtain an abortion while in federal custody.
Kavanaugh has distinguished himself as a thoughtful jurist who is not afraid to stake out bold positions on complex issues. In fact, we included him on the Heritage Foundation’s list of potential Supreme Court nominees.
More from us as the consent fun unfolds.
H/T Hot Air