On June 27, 2018, Justice Anthony Kennedy announced his intention to retire from the U.S. Supreme Court on July 31. The announcement created an opportunity for President Donald Trump to make a second appointment to the high court following the appointment of Justice Neil Gorsuch in 2017, and to cement a 5-4 conservative majority on the Court for decades to come. The stakes for the Court and for the nation were immediately thrown into sharp relief: the future of access to health care, to reproductive rights, and to civil rights that had been gradually won over many decades are clearly in jeopardy. Within days, on July 9, President Trump nominated D.C. Circuit Court Judge Brett Michael Kavanaugh for the seat to be vacated by Kennedy, confirming the Administration’s intent to push the high court farther to the right. This report reflects the results of a preliminary look at Kavanaugh’s record, which forms the basis for Alliance for Justice’s (AFJ) strong opposition to his confirmation.
It is worth noting that AFJ also opposed Kavanaugh’s appointment to the D.C. Circuit when he was first nominated by President George W. Bush in July of 2003. In opposing his confirmation to the circuit court, AFJ wrote that “Kavanaugh’s career is distinguished only by its extreme partisanship. There is nothing in his record to suggest that he would show the independence of thought necessary for a seat” as a federal judge.
It took three years for Kavanaugh, a highly partisan and controversial nominee, to be confirmed to the D.C. Circuit seat. Prior to his nomination, Kavanaugh’s career as a partisan political operative blossomed. He worked for Republicans on the election recount at the heart of the Bush v. Gore case; helped with the investigation of President Bill Clinton’s relationship with Monica Lewinsky; drafted grounds for President Clinton’s impeachment with Independent Counsel Ken Starr; led the independent counsel’s investigation into the alleged murder of Vince Foster; and served as a lawyer for Jeb Bush.
Kavanaugh also served for five years as a top official in the George W. Bush White House, working in the White House Counsel’s office and as White House Staff Secretary. As Kavanaugh described in his April 2004 confirmation hearing, “throughout my career in the White House as Staff Secretary, one of my jobs is to be the honest broker for competing views that come in on memos to the President.” While he concluded that his job was “ultimately to carry out the direction of my superiors without regard to whether I might have chosen a different path,” he also acknowledged that “my job is to give recommendations and advice[.]”
Kavanaugh’s service in the White House is of exceptional interest and relevance today, as he aspires to join the nation’s highest court. His tenure there overlapped with numerous controversial Bush Administration policies and decisions, including those involving warrantless wiretapping, torture, and the use of signing statements. He was reportedly involved in internal discussions about the Bush Administration’s unconstitutional detention policies, and senators have previously accused Kavanaugh of “misleading” the Senate Judiciary Committee during his previous confirmation hearings about his involvement in these issues. Most documents from this period of his career have yet to be released.
In the meantime, this summary report examines key issue areas Kavanaugh addressed during his twelve years as a judge. There is no shortage of troubling indicators; his writings and rulings attack the right to health care, to reproductive freedom, to clean air and water, and to fair wages and safe working conditions – all highly significant issues in every state in the country. In addition, Kavanaugh’s writings and statements exhibit his belief that there are instances in which the President should not be subjected to the rule of law that applies to ordinary citizens: that there are, in fact, instances in which the President should be above the law. The danger of this view at a time when the President himself seems disdainful of the rule of law cannot be overstated.
In short, the consequences of this nomination for the American people, for decades to come, simply could not be higher.