Full Article: SCOTUS Pick Announced

Politicians and activists have begun poring over Kavanaugh's lengthy record on issues such as presidential power, voting rights and government surveillance

President Donald Trump last week announced his selection of Judge Brett Kavanaugh for the Supreme Court, his second selection to the nation’s highest court in as many years in office, immediately launching a confirmation battle likely to be even more sharply contested than the administration’s successful 2017 effort to seat Justice Neil Gorsuch.

In a primetime address announcing his choice of Kavanaugh to replace Justice Anthony Kennedy, who is retiring, Trump said, “I have often heard that, other than matters of war and peace, this is the most important decision a president will make. The Supreme Court is entrusted with the safeguarding of the crown jewel of our republic, the Constitution of the United States.”

Kavanaugh, 53, spent the last 12 years on the high-powered U.S. Court of Appeals for the D.C. Circuit, notably as a colleague of Judge Merrick Garland. In 2016, then President Obama nominated Garland to fill the vacancy left by the death of Antonin Scalia, but Sen. Mitch McConnell refused to hold hearings on Garland, citing the fact that it was an election year, saying “the American people should have a voice in the selection their next Supreme Court Justice.”

A graduate of Yale Law School, and former clerk for Kennedy, Kavanaugh also has close ties to the George W. Bush administration. Prior to his time as a federal appeals court judge, Kavanaugh worked for independent counsel Kenneth Star, who conducted the investigation that led to the House of Representatives impeaching President Bill Clinton. Kavanaugh was one of the authors of the controversial Starr report.

Denver attorney Tom Downey, director at Ireland Stapleton Pryor & Pascoe, who attended high school with Kavanaugh at Georgetown Preparatory School, an elite Jesuit high school outside Washington D.C. thought his classmate’s connections to the Bush presidency would be enough to keep him from being the final choice. “Brett has been talked about for years,” Downey said. “Then he was a finalist. My assumption was that it wouldn’t be him because president Trump would see him as too much of a Bush person.” (Georgetown Prep also claims Justice Neil Gorsuch as an alumnus.)

Downey was one of more than 100 of Kavanaugh’s former classmates to sign a letter addressed to Senate leadership requesting they “promptly and fully consider his nomination as an Associate Justice to the U.S. Supreme Court.” One portion of the five-paragraph letter reads: “Given our diverse backgrounds and beliefs, we acknowledge that not all of us may agree with each of his conclusions or decisions, nor with the positions that various groups may espouse during his confirmation process. Nevertheless, we are united in the belief that Brett will discharge his duty in the same manner he always has: impartially, justly and with intellectual honesty and consistency.”

Downey, who considers himself a passionate, active Democrat, said he falls in that particular category. “If it wasn’t Brett, it was going to be someone else and if the Dems can’t stop them then I want it to be someone I know to be a really decent person,” Downey said. “If he were rejected, Trump would come back with someone so much worse…. It’s not a Fox News judge and that’s something the president could have done and that terrifies me.”

Another local Georgetown Prep alum whose signature appears on the letter is Tim Gaudette, a small business advocate and former chair of the Denver Gay & Lesbian Chamber of Commerce. Gaudette said this was a challenging decision for him, and that he might not have signed the letter had he felt the Democrats had enough leverage to produce a more moderate justice. “This is pretty much going to happen, even though it will get ugly,” said Gaudette, who considers Kavanaugh a longtime friend. “Brett’s a hell of a person, an incredibly smart person; sometimes our elected officials might not always meet that bar, but he does.”

Gaudette added, “I hope his experience with Justice Kennedy can lead him to see both sides of the argument. People think he’s a political animal, I don’t know that that’s true.”

Whenever McConnell schedules Kavanaugh’s confirmation hearing in the coming months, he’s more likely to be judged on his political and judicial writing. Sarah Auchterlonie, shareholder at Brownstein Hyatt Farber Schreck, somewhat recently had a case before the D.C. Circuit court in which Kavanaugh wrote the opinion. The experience left her with one particular takeaway; that Kavanaugh’s opinion was anti federal agency. “He considers independent agencies like those that regulate banks to be unchecked fourth branches of government,” Auchterlonie said. “The thing I thought was strange was it was almost like he went in knowing how he was going to rule, and was really reaching for a logical argument to support his ruling; he based a lot of his argument on history—‘well, they’ve never done it this way before, so it must be wrong.’”

In addition to the writing Kavanaugh has produced that deals with regulatory agencies—an important topic in Western law and politics—here are three other pieces of writing that have already drawn significant attention and could be key to the confirmation fight ahead.

1. PRESIDENTIAL POWER
In 2009, Kavanaugh wrote an article for the Minnesota Law Review in which he made several arguments. Most notably, perhaps, is that Kavanaugh argued Congress should enact a statute that would defer any criminal investigations against the president while he was in office. “In particular, Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” Also of note, Kavanaugh suggested in the article that a single, six-year presidential term might be more suitable.

2. SURVEILLANCE
In 2013, leaks by Edward Snowden revealed that the National Security Agency was running a warrantless phone metadata collection program. In 2015, Kavanaugh affirmed in an opinion the legality of the NSA program. Kavanaugh wrote: “Even if the bulk collection of telephony metadata constitutes a search, … the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.

The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” — that is, a need beyond the normal need for law enforcement — that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports.

3. VOTING RIGHTS
A South Carolina voter identification law Signed by then Gov. Nikki Haley in 2011 required residents to produce a government-issued photo ID when voting. The federal government blocked the law, arguing it would disenfranchise tens of thousands of minority citizens, and South Carolina’s attorney general sued.

Kavanaugh was part of a three-judge D.C. Circuit panel that heard an appeal of the law the following year. According to a report, the panel “accepted a watered-down version of the original,” that allowed residents to vote as long as they cite a “reasonable impediment” to obtaining such an ID. In the opinion, Kavanaugh wrote for the panel, “In short, Act R54 allows citizens with non-photo voter registration cards to still vote without a photo ID so long as they state the reason for not having obtained one; it expands the list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a qualifying photo ID than it was under preexisting law. Therefore, we conclude that the new South Carolina law does not have a discriminatory retrogressive effect, as compared to the benchmark of South Carolina’s preexisting law. We also conclude that Act R54 was not enacted for a discriminatory purpose.”

To read this story and other complete articles featured in the July 16, 2018 print edition of Law Week Colorado, copies are available for purchase online.