For all of the criticism the Trump Administration has received in recent weeks and months, one thing that Republicans almost universally agree upon is that President Trump has done well in reshaping the federal judiciary. This distinction even led to the genesis of stress balls with the caption “But Gorsuch!” distributed at the most recent Federalist Society annual conference. Taking advice from Leonard Leo, President Trump has seated a cadre of originalist-minded judges across the federal courts with several more in waiting.
Perhaps the most discussed judicial post that President Trump may fill is another slot on the Supreme Court. For years rumors have flurried about what would happen if Justices Ginsburg, Thomas, and/or Kennedy’s left the Court. For the near future, rumors that Justice Kennedy may retire appear the most credible. Given the justices’ ages we may well expect another vacancy within Trump’s initial term as president.
If this speculation becomes a reality, President Trump now has a list of 25 potential nominees. While all aside from Senator Lee are experienced judges, some on the list resonate more strongly as possible nominees. Why did President Trump add five judges to the list of 20 when he did? To be sure there were political motivations such as creating positive buzz among his base during a period with repeated allegations of election tampering. But was this also a strategic tactic meant to add a name or names that stand out at the moment to the list of potential nominees? For a variety of reasons that I will discuss below, D.C. Circuit Judge Brett Kavanaugh differentiates himself from this crowd as a likely candidate for the next nomination.
There are several assumptions that are required to begin to paint the picture of why this is a likely scenario. Perhaps most prominent on this list of assumptions is that President Trump and those that lend him their advice are pleased with Justice Gorsuch on the Court and want a similar outcome the second time around. Gorsuch was notable as a likely candidate well before the nomination was made public because of his credentials, experience, and the lack of controversy swirling around him. These qualities made his confirmation relatively assured and brought with the promise of a new conservative, originalist voice on the Court to fill Justice Scalia’s vacant seat. This equation and outcome could very well be replicated with a Kavanaugh nomination. In particular Kavanaugh similarly possesses strong qualifications and while he is known to rule in the conservative direction, he is not particularly divisive. With the democrats preparing to hunker down for more of a fight next time around, a nominee that could garner consensus from both sides of the aisle seems a prudent choice. This all depends on the source of the vacancy though and how far President Trump wishes to push the Court to the right.
If we assume that President Trump want to move the Court at least minimally right of its current position, we might expect a Kavanaugh nomination if we see a vacancy from Justice Kennedy’s or Ginsburg’s seats but not from Justice Thomas’. This series of potential outcomes is based on speculation that Kavanaugh would be to the right of either Justice Kennedy or Ginsburg on the Court but not as far to the right as Justice Thomas. With this caveat in mind, we can begin to explore why Kavanaugh is perceived as a safe pick and a relatively reliable conservative vote.
Some appeals court judges feed more clerks to the Supreme Court than others. Judge Kavanaugh, a former clerk for Justice Kennedy, is one of the strongest feeder judges falling just behind Merrick Garland as the most central feeder judge in a recent post. This speaks to the regard with which the justices hold his pedagogy on the bench and trust his judgments. Beyond merely feeding clerks to the Supreme Court, Judge Kavanaugh’s prior clerks have worked for a smattering of justices across the ideological spectrum.
Justices Roberts and Kennedy are the two justices that have taken the most Kavanaugh clerks. Both sit towards the ideological center of the Court. Multiple Kavanaugh clerks have also gone on to clerk for Justices Scalia, Alito, Breyer, Kagan, and Sotomayor. Here we see that justices on both ends of the political spectrum respect Kavanaugh’s choice of clerks and the tutelage that he presumably provides as a mentor.
DC Circuit Agreement
Judge Kavanaugh has a broad base of experience from his work on the D.C. Circuit Court of Appeals including 286 authored opinions (majority and secondary) since he joined the circuit in 2006. The D.C. Circuit is often seen as the main feeder to the Supreme Court as many of the justices sat on the D.C. Circuit earlier in their careers. Kavanaugh is 52 years old which places him well within a suitable age bracket for a nomination when compared to other recent nominees.
His range of experience includes work with a variety of other judges on the circuit. The following figure visualizes Kavanaugh’s work on panels based on all of his written opinions. The thicker lines denote more opportunities working together.
Two non-circuit judges, Judges Kollar-Kotelly and Bates appear on this network map based on Kavanaugh’s D.C. District Court opinion on a three judge district court panel with these judges. The next chart breaks down the numbers constituting the network graph as it shows the times Judge Kavanaugh sat on a panel with the other judges when he wrote an opinion.
Much of the distinctions in the chart above have to do with judges’ tenures on the D.C. Circuit as Judges Rogers, Henderson, and Brown have each sat on the court with Judge Kavanaugh for many years while Judges Srinivasan, Millett, and Pillard are more recent additions to the D.C. Circuit.
A lot of what makes Judge Kavanaugh a strong potential pick who should gain support from across the political spectrum has to do with his moderately conservative behavior and his high level of agreement with the other judges on the circuit. In a recent paper with co-author Kevin Cope, Kevin and I derived ideology scores for the D.C. Circuit judges based on lawyers’ (who practiced before these judges) perceptions of the judges’ political preferences. This measure of ideology is mapped in the following figure which ranges from -3 for very liberal to 3 for very conservative. Judge Kavanaugh’s ability to toe a moderate line while ruling predominately conservatively should attract a mixed ideological base. Judge Kavanaugh has also experienced a high level of agreement with fellow D.C. Circuit judges across the preference spectrum.
Judge Kavanaugh is well to the right of the average for the D.C. Circuit, but is not as far right as several of his colleagues. The following figure shows the counts of concurrences and dissents per D.C. Circuit judge when Kavanaugh was the majority opinion author.
Dissents come from judges with varied preferences. Judge Henderson with the most dissents is situated closely to Judge Kavanaugh on this spectrum while Judges Rogers and Pillard are far to his left. In terms of concurrences we see a number from other conservative judges such as Henderson and Williams along with the more moderate Judge Brown.
Kavanaugh’s secondary opinions relate to opinions from a mix of judges as well.
He dissented most often from the more liberal Judges Rogers and Tatel as well as from the moderate Judge Brown. He also concurred several times with Judge Brown although he concurred most often with his conservative colleague, Judge Ginsburg. Judge Kavanaugh’s ability to work with and find agreement with a mix of judges on the circuit highlights his ability to find judicial solutions on varied panels.
Looking at the lay of the land, Judge Kavanaugh has worked on an assortment of cases although he has written opinions predominately in a smaller set of areas. As the figure below shows, the majority of his written opinions reviewed agency decisions.
Like many other appeals court judges, Judge Kavanaugh also has multiple opinions in criminal cases and as a member of the D.C. Circuit, he has also ruled in multiple cases evaluating government actions. On the other hand, he has low level of opinion writing in other cases areas often before the Supreme Court such as IP and antitrust.
Of the opinions Judge Kavanaugh has written, he has taken repeated sides on several positions.
He has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases. In terms of agencies he has written in support of Homeland Security decisions and mainly in favor of FERC while he has had a more of a mix of opinions relating to EPA decisions. Judge Kavanaugh wrote multiple opinions relating to military commissions and mainly supported their establishment and actions. While he decided on behalf of the federal government in a majority of cases, he did not do so universally.
Kavanaugh’s jurisprudence speaks both to why he may be an attractive candidate for an open post on the Court and why some might take pause before supporting such a move. Compared to the recent addition of Justice Gorsuch to the Supreme Court, Judge Kavanaugh differs along several dimensions. Judge Kavanaugh uses less originalist and textualist language in his opinions although he is well-versed in statutory interpretation. While he has taken limited opportunities to defer to originalist principles, we see such these motivations in a handful of occasions. One example is from his opinion in We the People Foundation, Inc. v. U.S., where he wrote,
“As they suggest, moreover, the Framers and Ratifiers did not intend to incorporate every historical practice of British or colonial governments into the text of the Constitution.”
Although not a textualist to the same extent as other strong proponents of this interpretive method, several of his opinions have textualist features. This includes Judge Kavanaugh’s opinion in Fund for Animals, Inc. v. Kempthorne where he wrote,
“The canon against construing ambiguous statutes to abrogate prior treaties does not help plaintiffs here, however, because the amended Migratory Bird Treaty Act is unambiguous, as we concluded above. To accept plaintiffs’ argument with respect to the canon, we would have to distort the plain meaning of a statute in an attempt to make it consistent with a prior treaty. The Supreme Court has not extended the canon that far, and for good reason: Distorting statutory language simply to avoid conflicts with treaties would elevate treaties above statutes in contravention of the Constitution.”
More recently, Judge Kavanaugh has taken positions on hot-button issues. In the recent decision on an immigrant minor’s right to an abortion in Garza v. Hargan, Kavanaugh dissented writing,
“Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”
Such a decision should strongly appeal to a pro-life, conservative base .
In his decision in Heller v. District of Columbia, a postscript to the Supreme Court case, Kavanaugh adopted a pro-gun stance writing,
“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny…Because the Supreme Court in Heller did not adopt a strict or intermediate scrutiny test and rejected judicial interest balancing, I must disagree with the majority opinion’s decision in this case to adopt the intermediate scrutiny balancing test.”
On the other hand Judge Kavanaugh has written opinions that might be construed as opposing a conservative ethos. Two of his opinions supported upholding the Affordable Care Act enacted under President Obama. In Sissel v. U.S. Dept. of Health and Human Services Judge Kavanaugh wrote,
“In my view, the Affordable Care Act complied with the Origination Clause, but not for the reason articulated by the three-judge panel opinion…the Act did in fact originate in the House, as required by the Clause. Although the original House bill was amended and its language replaced in the Senate, such Senate amendments are permissible under the Clause’s text and precedent.”
In Seven-Sky v. Holder, Judge Kavanaugh argued that the D.C. Circuit should not have decided in the case due to the Anti-Injunction Act,
“[T]he Affordable Care Act penalties at issue here are defined to be taxes for purposes of the IRS’s assessment power under Section 6201. That necessarily means that these penalties also are taxes for purposes of the Anti–Injunction Act’s protection against pre-enforcement suits seeking to restrain the IRS’s assessment of “any tax.” For that alternative and independent reason, the Anti–Injunction Act bars the Court from deciding this suit.”
While Judge Kavanaugh was not prepared to rule against the ACA in either case, he did decide in support of religious organizations (albeit not to the full extent possible) in Priests for Life v. U.S. Dept. of Health and Human Services, an ACA case and a predecessor case to Supreme Court’s Zubik v. Burwell. In Priests for Life, Kavanaugh wrote,
“It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can. Doing so here, in my respectful view, leads to the conclusion that the plaintiff religious organizations should ultimately prevail on their RFRA claim, but not to the full extent that they seek.”
Judge Kavanaugh has many other significant opinions worthy of a read. As with the decisions described above, he tends to move conservatively but treads lightly. This should help him garner support from a broad base and create an impediment to any attempt to filibuster his nomination if we ever reach that point.
There are still more questions that must be answered before we can gauge the accuracy behind this assessment. Most prominently, President Trump needs another SCOTUS vacancy. For Judge Kavanaugh to be selected as the nominee the vacancy should likely come from a justice to the left of Justices Gorsuch, Thomas, and Alito. Conservatives with strong voices in the Federalist Society such Leonard Leo that also have the President’s ear must throw their support behind a Kavanaugh nomination. If a series of events moves in this direction, then we may very well see Judge Kavanaugh as the next Supreme Court Justice nominee and as a future justice on the Court.
On Twitter: @AdamSFeldman
Now consulting at Optimized Legal