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Panelist grills Kavanaugh's past opinions

Panelists discuss Trump nominee for Supreme Court Brett Kavanaugh's opinion that presidents should be shielded from litigation while in office.

Posted: Jul 10, 2018 6:12 PM
Updated: Jul 10, 2018 6:33 PM

When President George W. Bush was torn among finalists for a Supreme Court seat in 2005, he turned to young staff lawyer Brett Kavanaugh for advice. On Monday night, Kavanaugh, now a 53-year-old appellate judge, came full circle as President Donald Trump selected him for America's highest court.

Kavanaugh, who also served in the George H.W. Bush administration, is a classic Washington insider whose deep conservative legal record, persuasive style and engaging demeanor are proven by the fact that Trump -- the anti-establishment President -- chose a lawyer so identified with the Bush dynasty to succeed retiring Justice Anthony Kennedy.

His career path led him from doggedly investigating one president to later on arguing for more legal protections for presidents -- after working for another one. His convincingly right-wing credentials, along with a Yale law degree and scholarly writings -- not to mention Trump staff contacts -- plainly influenced the choice. A native of suburban Washington whose mother and father went to law school later in their professional lives, Kavanaugh has spoken often of his commitment to public service and neutral, dispassionate judging.

"We need to be able to tune out the crowd noise," he said in one recent speech at Catholic University, adopting the familiar "judge as umpire" mantra. "At the same time ... we can't tune it out so much that we're not willing to learn from our mistakes, to learn from informed commentary ... remembering that we're not perfect, far from it."

Kavanaugh's 12-year record on the US Court of Appeals for the District of Columbia Circuit would place him to the right of Kennedy, for whom he was once a law clerk, and more in ideological sync with Justice Samuel Alito, a George W. Bush nominee who has been a reliable conservative vote on the court.

Kavanaugh was involved in that Bush appointment and served more crucially when the president was torn on his first nomination, in July 2005, and chose John Roberts, now the chief justice.

For the law in America, a Justice Kavanaugh would mean more restrictions on abortion rights, if not total reversal of Roe v. Wade; fewer university options for affirmative action; greater scrutiny for environmental regulations; and a tougher stance on criminal defendants.

Last October, Kavanaugh dissented when the full DC Circuit prevented the Trump administration from blocking a teenage migrant at the southern border from obtaining an abortion. Kavanaugh stressed that the "government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion."

Yet Kavanaugh has never expressed outright opposition to the 1973 Roe v. Wade ruling, which made abortion legal nationwide, and he is likely to try to evade such questions during Senate confirmation hearings. He similarly has no record on gay rights and same-sex marriage -- a defining issue of swing-vote Kennedy.

Clinton impeachment and presidential privilege

No stranger to controversy, including on issues that resonate today, Kavanaugh worked for independent counsel Ken Starr's investigation of President Bill Clinton in the 1990s. That initial Whitewater real estate inquiry expanded into an investigation of Clinton's relationship with White House intern Monica Lewinsky. On that independent counsel team, Kavanaugh argued his one Supreme Court case, as Starr tried to obtain a lawyer's notes of his conversation with deputy White House counsel Vincent Foster. Kavanaugh argued that the attorney-client privilege ended upon the death of the client. (Foster had committed suicide.) Kavanaugh lost the 1998 case of Swidler & Berlin v. United States in a 6-3 vote.

The then 33-year-old Kavanaugh became a lead author of the 1998 Starr report, which detailed Clinton's sexual involvement with Lewinsky and laid out 11 grounds for Clinton's impeachment, including obstruction of justice and lying under oath. The Republican-controlled House of Representatives voted to impeach Clinton, but the GOP-controlled Senate acquitted him in 1999.

A decade later, after Kavanaugh had worked closely with President George W. Bush, he wrote in a law review that he had new appreciation for the demands of the presidency and the toll any legal proceeding could take on the White House. He recommended presidents be shielded from civil and criminal litigation until they leave office.

"Having seen first-hand how complex and difficult that job is," he wrote, "I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible." He acknowledged that blocking litigation would suggest the President was "above the law," but he added that "the point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office."

Kavanaugh noted in the 2009 Minnesota Law Review piece that a check against a "bad-behaving or law-breaking President" would still exist. "If the President does something dastardly, the impeachment process is available."

Obamacare and Roe v. Wade

On the US Court of Appeals for the District of Columbia Circuit, Kavanaugh has tacked to the right and taken pains to avoid controversy.

He was not on candidate Trump's 2016 lists of potential Supreme Court candidates, likely because of his inside-the-Beltway markers and perhaps a 2011 decision in which he declined to find President Barack Obama's health care law unconstitutional.

Reversal of that law was a rallying cry for hard-right Republicans, including Trump. Kavanaugh flatly avoided the issue, based on grounds arising from the so-called Anti-Injunction Act, which limits federal court jurisdiction over certain tax-related matters.

In a separate case associated with the Affordable Care Act, Kavanaugh dissented when the DC Circuit declined a full court review of a religious group's objection to the process for employers seeking to opt out of the contraceptive mandate. (The ACA required employers to offer insurance covering birth control and detailed a process for submitting paperwork to win an exemption.)

Priests for Life challenged the process for certifying eligibility for exemptions, contending it burdened religious rights. Kavanaugh's dissent suggested other certification options, while acknowledging government's "compelling interest in facilitating access to contraception."

Because Trump has vowed to appoint justices who would reverse Roe v. Wade, Kavanaugh's opinion last fall involving a pregnant migrant will be scrutinized in Senate hearings. Kavanaugh said the government should be able to postpone the abortion until the girl, held at an immigration detention center, was placed with a sponsor.

As the appeals court majority declared the Trump administration had interfered with the constitutional right to abortion, Kavanaugh's dissenting opinion offered a window into his legal reasoning and writing style. "[C]onsider the circumstances here. The minor is alone and without family or friends. She is in a US Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor -- ordinarily a family member, relative, or friend -- before she makes that decision?

"And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion. I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched."

Controversial with Democrats

When President George W. Bush first nominated Kavanaugh to the DC Circuit in 2003, Senate Democrats stalled for almost three years.

"If there's been a partisan, political fight that needed a very bright legal foot-soldier in the last decade," Sen. Chuck Schumer of New York said in 2006, "Brett Kavanaugh was probably there."

Schumer, who is now Senate Democratic leader, described Kavanaugh's nomination as "not just a drop of salt in the partisan wounds" but "the whole shaker."

The Senate ultimately approved Kavanaugh 57-36 on May 26, 2006, and he was sworn in less than a week later in an elaborate Rose Garden ceremony presided over by Bush -- not the standard practice for an appeals court appointee. Kennedy administered the oath.

Holding the Bible was Kavanaugh's wife, Ashley, who was Bush's personal secretary. Their marriage, Bush quipped at the investiture, "was the first lifetime appointment I arranged for Brett."

The couple now has two daughters, ages 10 and 12.

Roots in DC area

Kavanaugh grew up in Bethesda, Maryland, an only child. His mother, Martha, was a schoolteacher who, after earning her law degree at American University, eventually became a Montgomery County, Maryland, circuit judge. She retired in 2001. His father, Edward, was a lobbyist for the Cosmetic, Toiletry, and Fragrance Association who, after gaining his law degree at American, rose to president and CEO of the trade association.

Both parents graduated from law school in 1978, when Kavanaugh was 13 years old.

Monday at the White House, Kavanaugh described his mother as influential in his legal path. After teaching high school history, she went to law school, became a prosecutor and later a state court judge during his youth, and he said he thinks of her as the real "Judge Kavanaugh."

"Her trademark line was, 'Use your common sense -- what rings true, what rings false.' That's good advice for a juror and for a son," he said.

Kavanaugh attended Georgetown Preparatory high school -- as did Trump's first selection to the court, Justice Neil Gorsuch -- and was captain of the basketball team. After Yale University, Kavanaugh studied at Yale Law School. Referring to his early ideology, Kavanaugh said he found himself jotting down his agreement with William Rehnquist, who was an associate justice beginning in 1972 and chief justice from 1986 until his death in 2005.

"I would constantly make notes to myself," Kavanaugh recounted in a speech at the American Enterprise Institute last year. "Agree with Rehnquist majority opinion. Agree with Rehnquist dissent. Agree with Rehnquist analysis. Rehnquist makes a good point here. Rehnquist destroys the majority's reasoning here."

Rehnquist was known in the 1970s and early 1980s as a "lone ranger" for his singular conservatism. Kavanaugh regarded him as his "first judicial hero."

On the fast track after law school, Kavanaugh was a judicial clerk to Appeals Court Judges Walter Stapleton, on the Philadelphia-based 3rd Circuit, then Alex Kozinski, on the San Francisco-based 9th Circuit. He was a law clerk to Kennedy in the 1993-1994 term.

Kavanaugh also served in the US solicitor general's office, which represents the federal government before the Supreme Court. The office was led at the time by Starr, then solicitor general, and deputy John Roberts, now the chief justice.

George W. Bush years

Kavanaugh's tenure in the George W. Bush White House, first as associate White House counsel, then as staff secretary, put him at the center of the administration's response to the September 11 terrorist attacks, Hurricane Katrina and, relevant today, efforts to put more conservatives on the federal bench.

In 2005, when Bush was down to the wire with a Supreme Court choice among top contenders Roberts, Alito and Michael Luttig -- all appeals court judges at the time -- for the vacancy created by Sandra Day O'Connor's announced retirement on July 1, 2005, he asked Kavanaugh for advice.

As Bush recounted in his memoir, "Decision Points," "The tiebreaker question, he suggested, was which man would be the most effective leader on the Court -- the most capable of convincing his colleagues through persuasion and strategic thinking."

Bush chose Roberts. Less than two months later when Chief Justice William Rehnquist died late on September 3, Kavanaugh was among those summoned to the White House early the next morning.

"I remember it vividly," Kavanaugh recalled at the American Enterprise Institute last year. "Hurricane Katrina had hit earlier that week. ... When all of us met in the Oval Office on Sunday morning, it did not take long for the President to settle on nominating John Roberts for the Rehnquist vacancy; he decided that he would worry about the O'Connor vacancy after Roberts was confirmed." (Bush ended up naming Alito to the O'Connor seat in January 2006.)

Said Kavanaugh: "The enormity of it all -- Katrina, Rehnquist, Roberts -- still hits me when I think about it in retrospect."

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