Article Jul 10, 2018

Explainer: What you should know about Judge Brett Kavanaugh

President Donald Trump has announced his nominee to replace retiring Justice Anthony Kennedy. Here is what you should know about the latest nominee for associate justice of the Supreme Court of the United States.

Brett Kavanaugh

Age: 53

Birthplace: Washington, D.C.

Education: B.A. from Yale University; J.D. from Yale Law School.

Current judgeship:  U.S. Court of Appeals for the District of Columbia Circuit (appointed by George W. Bush).

Previous roles: After graduating law school, Judge Kavanaugh clerked for two appeals court judges and for Justice Anthony Kennedy on the U.S. Supreme Court. He also served as an attorney in the Office of the Solicitor General of the United States and an Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. During the Presidency of George W. Bush, Kavanaugh served as an Associate Counsel and then Senior Associate Counsel to the President, and as an Assistant to the President and Staff Secretary to the President. 

Religious denomination: Catholic

Family: Judge Kavanaugh is married and has two daughters. His wife, Ashley Estes Kavanaugh, served as Personal Secretary to the President George W. Bush between 2001 and 2004.

Judicial philosophy: Judge Kavanaugh is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted, and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning.

Positions and rulings

Rule of law

In a 2017 speech at Notre Dame Law School, Judge Kavanaugh said:

I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.

Religious Liberty

While in private practice in the 1990s, he served as chair of the Federalist Society’s Religious Liberties Practice Group and wrote two pro bono Supreme Court amicus briefs in support of the cause of religious liberty. (The Federalist Society is a group of conservatives and libertarians interested in “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”)

In a dissenting opinion in Priests for Life v. HHS—a case involving the Obama administration’s contraceptive mandate—argued that the courts “may not question the wisdom or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs – including about complicity in wrongdoing” and that “Judicially second-guessing the correctness or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs is exactly what the Supreme Court in Hobby Lobby told us not to do.”

He submitted an amicus brief to the Supreme Court in Good News Club v. Milford Central School as pro-bono work in his private law practice. He argued for religious organizations to have equal access as any other organization for a public school that allows after school use of its facilities.

Abortion

In a 2017 case involving an unaccompanied and undocumented migrant teenager who sought an abortion while living in a government-funded shelter, Kavanaugh issued a dissenting opinion. In that dissent he wrote that a previous “ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” However, he found the opinion of the majority on his appeals court represented a “radical extension of the Supreme Court’s abortion jurisprudence.”

“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,” wrote Kavanaugh.

 Press release and Russell Moore's thoughts on the appointment can be found here.