Abortion, guns, independent counsels — he’s written about them all. That’s a plus for Republicans who want assurances about the conservative bona fides of Trump’s next pick. But it also gives the left more material to work with in the upcoming confirmation fight.
Conservatives have been wary of US Supreme Court nominees who are unknowns, hoping to avoid another Justice David Souter, the so-called “stealth” George H.W. Bush appointee who turned out to be a liberal champion. Kavanaugh has been a leading conservative voice on the DC Circuit, finding himself in the minority in big cases about the power of executive agencies — a dominant subject in the DC-based court — on a court that tilts ideologically to the left.
But he’s also had critics on the right. A coalition of far-right organizations had sent Trump a letter expressing their preference for 7th Circuit Judge Amy Coney Barrett. Kentucky Sen. Rand Paul has told colleagues he might not support Kavanaugh, citing his work in the George W. Bush administration on issues related to congressional investigations, according to the Associated Press, although Paul tweeted shortly after Kavanaugh's nomination was announced that he was going into the process with an "open mind."
Below, here’s a rundown of what Kavanaugh has had to say, at least on paper, on issues likely to come up as he goes before the Senate.
The future of Roe v. Wade is already at the center of the fight over Anthony Kennedy’s replacement. At his DC Circuit confirmation hearing in 2006, Kavanaugh declined to discuss his personal views about Roe v. Wade, the 1973 case that established a nationwide right to abortion, only saying he would follow Supreme Court precedent if he were confirmed.
Since joining the court, Kavanaugh has written just one opinion citing Roe v. Wade. A district court judge last year ordered the Trump administration to allow a pregnant, undocumented teenager held in US custody to get an abortion. The Justice Department appealed. Kavanaugh was on the three-judge panel that heard the case.
In a two-page order in October, the panel reversed the lower court judge, saying that the administration should be given time to try to find a sponsor for the teen, referred to as Jane Doe, who could then be released from US custody and would be free to seek an abortion. Jane Doe’s lawyers asked the full DC Circuit to reconsider the decision.
The DC Circuit, sitting en banc, reversed the panel’s order. Kavanaugh wrote a dissenting opinion, saying his colleagues had “badly erred.” Jane Doe obtained an abortion the next day, before the Justice Department could petition the Supreme Court.
Kavanaugh wrote that the court had created a “new right” to “immediate abortion on demand” for undocumented, pregnant teenagers in US custody. The panel’s original order was in line with Supreme Court cases that said the government could have an interest in “favoring fetal life” and not facilitating abortions, as long as it didn’t impose an “undue burden” on women who did choose to seek an abortion in the process.
Kavanaugh did not say that Jane Doe, as an undocumented immigrant, had no right to an abortion once she was in the United States. But he concluded that it was not an “undue burden” for the US government to say it wouldn’t “facilitate” abortions for teens in custody, and to transfer a minor in that situation to a sponsor, as long as it was “expeditious.”
Kavanaugh left open the question of what would happen if the government couldn’t find a sponsor. “It could turn out,” Kavanaugh wrote, that the government would be required to allow Jane Doe to get the abortion, noting that the government already facilitates abortions for adult women in criminal and immigration custody. But he argued that the government should first get a chance to try to find a sponsor.
“It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available. Again, that may be debatable as a matter of policy. But unconstitutional? I do not think so,” Kavanaugh wrote.
In a prescient passage at the end of his dissent, Kavanaugh wrote that as a lower court judge, it was his job to apply Supreme Court precedent as best he could to novel situations:
“As a lower court, our job is to follow the law as it is, not as we might wish it to be. The three-judge panel here did that to the best of its ability, holding true to the balance struck by the Supreme Court. The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors. The majority’s decision is inconsistent with the precedents and principles of the Supreme Court — for example, the many cases upholding parental consent laws — allowing the Government to impose reasonable regulations so long as they do not unduly burden the right to abortion that the Court has recognized.”
Special counsels and executive power
Kavanaugh wrote an article in 1998 critical of the independent counsel system in place at the time. The independent counsel law functioned differently from the Justice Department regulations special counsel Robert Mueller was appointed under, but Kavanaugh also called the law that Deputy Attorney General Rod Rosenstein cited in his appointment of Mueller as “problematic.”
In the article in the Georgetown Law Journal, Kavanaugh advocated for a system that gave the president more power over the appointment of an independent or special counsel. He wrote that a “special counsel” should be nominated by the president and confirmed by the US Senate, and that the president should have “absolute discretion” about whether to appoint such a prosecutor. That would give the special counsel more credibility and also insulate them from future political attacks from the president and his or her supporters, Kavanaugh wrote.
He also wrote that Congress should make clear that a president can only be indicted after leaving office, or after being impeached by the House of Representatives and convicted and removed from office by the Senate. Whether the US Constitution allowed a sitting president to be indicted was “debatable,” Kavanaugh wrote, but Congress should remove the uncertainty.
Kavanaugh did write that Congress should limit a president’s ability to claim executive privilege in the face of a grand jury or criminal trial subpoena, an issue that has also come up in the course of Mueller’s investigation.
At his confirmation hearing in 2006, Kavanaugh said he thought it was a mistake to give Ken Starr as much jurisdiction as he ended up having — the investigation had started with a probe into the Clintons’ real estate investments, and over time came to include a variety of other matters, including the Monica Lewinsky scandal. Republicans have argued that Mueller shouldn’t have the power to go beyond the question of Russian collusion, so Democrats and Republicans are likely to dig into Kavanaugh’s views on the proper scope of power for a specially appointed prosecutor.
“By adding to the jurisdiction, it created the impression that Judge Starr was somehow the permanent special investigator of the administration,” Kavanaugh said in 2006. “I think there was too much jurisdiction added to Judge Starr that created a mistaken public impression that harmed the credibility of the investigation.”
In a 2009 article in the Minnesota Law Review, Kavanaugh wrote that Congress should pass a law deferring any civil lawsuits against a president while they're in office, as well as advocating for exempting a sitting president from criminal investigation or prosecution.
Kavanaugh has repeatedly written in favor of giving the president more authority to fire agency officials. In October 2016, Kavanaugh wrote an opinion concluding that the structure of the Consumer Financial Protection Bureau — an Obama-era creation that Republicans have longed to undo — was unconstitutional because of the limits placed on the president’s ability to fire the director. He was reversed by a full sitting of the DC Circuit earlier this year.
The Second Amendment
In 2011, Kavanaugh dissented from a decision that upheld a series of DC gun laws adopted after the US Supreme Court in 2008 struck down the city’s handgun ban. Two members of the three-judge panel in large part agreed with a lower court judge who found the city’s ban on semiautomatic rifles and large-capacity magazines constitutional; the majority did send the case back for more litigation over some of the new registration requirements.
Kavanaugh, in his dissenting opinion, wrote that he would find all of the challenged laws unconstitutional. There was no “meaningful or persuasive constitutional distinction” between the semiautomatic handguns that the US Supreme Court found the city could not ban in 2008 and the semiautomatic rifles banned under the latest iteration of the city’s gun laws.
“As with D.C.’s handgun ban, therefore, holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms — a history and tradition that Heller affirmed and adopted as determining the scope of the Second Amendment right,” Kavanaugh wrote.
In June 2016, a DC Circuit panel upheld the net neutrality regulations adopted under the Obama administration. The telecommunications industry asked the full court to consider that ruling, and the majority of judges voted to let the panel’s decision stand. Kavanaugh would have voted to rehear the case, and he wrote a dissenting opinion explaining that he believed the net neutrality rule was unlawful and should be struck down.
Congress hadn’t authorized the Federal Communications Commission to impose such regulation on internet service providers, Kavanaugh wrote. He also concluded that the rule violated the First Amendment because the government was restricting the “editorial discretion” of providers.
The FCC under Trump has rolled back the net neutrality rules, but Kavanaugh’s dissent in the case speaks to broader concerns among conservative lawyers and judges about the power of federal agencies. As a lower court judge, now-Justice Neil Gorsuch had written at length about his belief that the courts should give less deference to agencies, and White House counsel Don McGahn has said that scaling back the administrative state is a priority — one that he sees as going hand-in-hand with his other priority of getting conservative judges confirmed.
Same-sex marriage has been legal in Washington, DC, since 2010, so there were no court fights that reached the DC Circuit the way there were in other districts before the US Supreme Court legalized it in 2015.
Since 2015, the fight over LGBT rights has shifted to litigation over whether people, companies, and organizations can raise religious objections to providing services to the LGBT community. Kavanaugh wrote a lengthy dissent in a case about the Affordable Care Act’s contraception coverage mandate that touched on a number of issues related to religious liberty claims.
Religious organizations had sued in DC to challenge the contraception mandate, and in 2015 a majority of the court voted to keep in place a panel decision that upheld the mandate. Kavanaugh dissented. He wrote that the mandate “substantially” burdened the religious exercise of the challengers. Earlier Supreme Court precedent “strongly suggest[ed]” that the government had a “compelling interest” in helping employees of religious organizations access contraception, he wrote, but he concluded that the rules in place for how an organization could opt out of the mandate was not the “least restrictive” way of accomplishing that.
At his confirmation hearing in 2006, Kavanaugh said that he wasn’t involved in decisions in the Bush administration about the use of torture on detainees, but that he agreed with the decision to repeal a Justice Department memo that had authorized the use of various “enhanced interrogation” techniques.
“I think that memo did not serve the presidency or this president well,” Kavanaugh said at the time.
The Trump Organization
If a case about Trump’s businesses — for instance, one of several pending lawsuits that accuse Trump of violating the US Constitution’s emoluments clauses by keeping a stake in his companies — came before the court, it wouldn’t be the first time Kavanaugh considered the president’s business empire. In 2012, Kavanaugh was on a three-judge panel that ruled for the Trump Plaza Hotel and Casino in Atlantic City in a labor dispute.
Updated with comment from Sen. Rand Paul.