# Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR45293 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** August 21, 2018 - **Citation:** R45293 ## Text Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court Andrew Nolan, Coordinator Section Research Manager Updated August 21, 2018 Congressional Research Service 7-.... www.crs.gov R45293 SUMMARY Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court R45293 August 21, 2018 Andrew Nolan, On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Coordinator Section Research Manager Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill -re-acte--@crs.loc.gov retiring Justice Anthony M. Kennedy’s seat on the Supreme Court of the United States. Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on For a copy of the full report, that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored please call 7-.... or visit roughly three hundred opinions (including majority opinions, concurrences, and dissents) and www.crs.gov. adjudicated numerous high-profile cases concerning, among other things, the status of wartime detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current structure of the Consumer Financial Protection Bureau; the validity of rules issued by the Environmental Protection Agency under the Clean Air Act; and the legality of the Federal Communications Commission’s net neutrality rule. Since joining the D.C. Circuit, Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center. Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W. Bush White House, first as associate and then senior associate counsel, before becoming assistant and staff secretary to the President. Before his service in the Bush Administration, the nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years and served in the Office of the Independent Counsel and the Office of the Solicitor General. Judge Kavanaugh began his legal career with three federal clerkships—two for judges on the federal courts of appeals and one for the jurist he is nominated to succeed, Justice Kennedy. Judge Kavanaugh is a graduate of Yale College and Yale Law School. Judge Kavanaugh’s nomination to the High Court is particularly significant as he would be replacing Justice Kennedy, who was widely recognized as the Roberts Court’s median vote. Justice Kennedy was often at the center of legal debates on the Supreme Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues. Accordingly, a critical question now before the Senate as it considers providing its advice and consent to the President’s nomination to the High Court is how Judge Kavanaugh may view the many legal issues in which Justice Kennedy’s vote was often determinative. In this vein, understanding Judge Kavanaugh’s views on the law is one method to gauge how the Supreme Court might be affected by his appointment. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note at the onset that, for various reasons, it often is difficult to predict accurately a nominee’s likely contributions to the Court based on his or her prior experience. That said, the nominee is a well-known jurist with a robust record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role of the judge fairly clear. Central to the nominee’s judicial philosophy is the concept of judicial formalism and a belief that the “rule of law” must be governed by a “law of rules.” In addition, Judge Kavanaugh has endorsed the concept of the judge as a neutral “umpire.” In order to achieve this vision of neutrality, the nominee’s legal writings have emphasized (1) the primacy of the text of the law being interpreted, (2) an awareness of history and tradition, and (3) adherence to precedent. Applying these principles, Judge Kavanaugh’s views on several discrete legal issues are readily apparent, including administrative law, environmental law, freedom of speech, national security, the Second Amendment, and separation of powers. At the same time, perhaps because of the nature of the D.C. Circuit’s docket, less is known about the nominee’s views on other legal issues, including business law, civil rights, substantive due process, and takings law. This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an appellate judge have fared upon review by the Supreme Court. Congressional Research Service Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Contents Predicting Nominees’ Future Decisions on the Court ..................................................................... 6 Judge Kavanaugh’s Judicial Approach, Philosophy, and Influences .............................................. 11 The Craft of Judging ................................................................................................................ 11 Judicial Philosophy ................................................................................................................. 19 Judicial Influences................................................................................................................... 31 Statutory Interpretation.................................................................................................................. 34 General Theory........................................................................................................................ 35 Application and Interpretive Tools .......................................................................................... 36 Severability ............................................................................................................................. 42 Administrative Law ....................................................................................................................... 44 Justiciability Issues.................................................................................................................. 45 Statutory Review ..................................................................................................................... 48 Discretionary and Factual Review .......................................................................................... 56 Conclusion .............................................................................................................................. 58 Business Law................................................................................................................................. 59 Antitrust Law .......................................................................................................................... 60 Labor Law ............................................................................................................................... 65 Securities Law ......................................................................................................................... 68 Conclusion .............................................................................................................................. 71 Civil Rights.................................................................................................................................... 73 Statutory Civil Rights Law...................................................................................................... 74 Voting Rights ........................................................................................................................... 79 Conclusion .............................................................................................................................. 83 Criminal Law and Procedure ......................................................................................................... 85 Fourth Amendment.................................................................................................................. 86 Constitutional Issues in Criminal Sentencing ......................................................................... 89 Other Criminal Procedure Issues ............................................................................................ 90 Substantive Criminal Law ....................................................................................................... 92 Cruel and Unusual Punishments Under the Eighth Amendment ............................................ 93 Conclusion .............................................................................................................................. 93 Environmental Law ....................................................................................................................... 95 Standing to Sue in Environmental Cases ................................................................................ 95 Substantive Environmental Law ............................................................................................. 98 Conclusion ............................................................................................................................ 104 Federalism ................................................................................................................................... 106 Freedom of Religion ..................................................................................................................... 110 Establishment Clause ............................................................................................................. 110 Free Exercise Clause and RFRA ............................................................................................ 114 Freedom of Speech ....................................................................................................................... 118 Political Speech, Political Spending, and Speaker-Based Distinctions .................................. 119 Free Speech and the Modern Communications Marketplace ................................................ 122 Commercial Speech and Commercial Disclosures ............................................................... 126 Limits on First Amendment Protections................................................................................ 130 Conclusion ............................................................................................................................ 131 Congressional Research Service Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court National Security ......................................................................................................................... 133 Second Amendment ..................................................................................................................... 140 Separation of Powers ................................................................................................................... 145 Judge Kavanaugh’s General Theory of the Separation of Powers ........................................ 146 Judicial Role in Maintaining the Separation of Powers ........................................................ 149 Presidential Execution of the Law ........................................................................................ 151 Legislator and Presidential Immunity ................................................................................... 153 Executive Privilege ............................................................................................................... 157 Executive Compliance with a Subpoena ............................................................................... 160 Structural Design of Independent Agencies .......................................................................... 161 Substantive Due Process and Fundamental Rights...................................................................... 167 Abortion Jurisprudence ......................................................................................................... 168 Substantive Due Process Cases Decided Under Glucksberg ................................................ 172 Conclusion ............................................................................................................................ 175 Takings ........................................................................................................................................ 176 Tables Table A-1. Dissents and Concurrences Authored on the D.C. Circuit* ....................................... 177 Table A-2. Majority Opinions That Drew Dissents and Concurrences on the D.C. Circuit* ...... 178 Table A-3. Supreme Court Review of D.C. Circuit Cases in Which Judge Kavanaugh Joined or Authored an Opinion* .............................................................................................. 179 Table A-4. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing Judge Kavanaugh’s Separate Opinions* ............................................................................................ 182 Table A-5. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing D.C. Circuit Judges’ Separate Opinions* ......................................................................................... 185 Table A-6. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing Federal Appellate Court Judges’ Separate Opinions* .............................................................. 187 Appendixes Appendix. Judge Kavanaugh by the Numbers ............................................................................ 177 Contacts Author Contact Information ........................................................................................................ 190 Congressional Research Service Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court n July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. O Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit)1 to fill the vacancy on the Supreme Court of the United States caused by Justice Anthony M. Kennedy’s retirement on July 31, 2018.2 Nominated by President George W. Bush to the D.C. Circuit, a court once described by President Franklin Roosevelt as “the second most important court in the country,”3 Judge Kavanaugh has served on the bench for more than twelve years.4 In his role as a Circuit Judge, the nominee has authored roughly three hundred opinions (including majority opinions, concurrences, and dissents)5 and adjudicated numerous high-profile cases concerning, among other things, the status of wartime detainees held by the United States at Guantanamo Bay, Cuba;6 the constitutionality of the current structure of the Consumer Financial Protection Bureau (CFPB);7 the validity of rules issued by the Environmental Protection Agency (EPA) under the Clean Air Act;8 and the legality of the Federal Communications Commission’s (FCC’s) net neutrality rule.9 Since joining the D.C. Circuit,10 Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center.11 Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W. Bush White House, first as an associate and then senior associate counsel, before becoming an assistant and staff secretary to the President.12 Before his service in the Bush Administration, the nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years and 1 See Press Release, President Donald J. Trump Announces Intent to Nominate Judge Brett M. Kavanaugh to the Supreme Court of the United States (July 9, 2018), https://www.whitehouse.gov/presidential-actions/president-donaldj-trump-announces-intent-nominate-judge-brett-m-kavanaugh-supreme-court-united-states/. See generally CRS Legal Sidebar LSB10168, President Trump Nominates Judge Brett Kavanaugh: Initial Observations, by Andrew Nolan. 2 Letter from Anthony M. Kennedy, Associate Justice, Supreme Court of the United States, to Donald J. Trump, President, United States of America (June 27, 2018), https://www.supremecourt.gov/publicinfo/press/ Letter_to_the_President_June27.pdf. 3 SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 26 (1997). 4 Brett M. Kavanaugh: Professional Biography, U.S. COURT OF APPEALS FOR THE D.C. CIR., https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK (last visited July 20, 2018) [hereinafter Kavanaugh Biography]; Kavanaugh, Brett M., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/kavanaugh-brett-m (last visited July 20, 2018) [hereinafter FJC Biography]. 5 See CRS Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh, coordinated by Michael John Garcia [hereinafter CRS Kavanaugh Opinions Report]; see also Judge Brett Kavanaugh’s 188 Majority Opinions, 52 Concurrences, and 57 Dissents, CIR. BREAKER, https://dccircuitbreaker.org/kavanaugh-opinions/ (last visited July 20, 2018). 6 See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). 7 See PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting); PHH Corp. v. CFPB, 839 F.3d 1, 5 (D.C. Cir. 2016), reh’g en banc granted, order vacated (Feb. 16, 2017). 8 See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 11 (D.C. Cir. 2012), rev’d and remanded, 134 S. Ct. 1584 (2014). 9 See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc). 10 For purposes of brevity, references to a particular circuit in the body of this report (e.g., the D.C. Circuit, the Second Circuit, etc.) refer to the U.S. Court of Appeals for that particular circuit. Collectively, the federal appellate courts are termed “federal courts of appeals.” 11 See Kavanaugh Biography, supra note 4. 12 Id. Congressional Research Service 1 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court served in the Office of the Independent Counsel and the Office of the Solicitor General.13 Judge Kavanaugh began his legal career with three federal clerkships—two for judges on the federal courts of appeals and one for the jurist he is nominated to succeed, Justice Kennedy.14 Judge Kavanaugh is a graduate of Yale College and Yale Law School.15 This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Kennedy. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note that, for various reasons, it is difficult to predict accurately a nominee’s likely contributions to the Court based on his or her prior experience. A section of this report titled Predicting Nominees’ Future Decisions on the Court provides a broad context and framework for evaluating how determinative a judge’s prior record may be in predicting future votes on the Supreme Court.16 Because Judge Kavanaugh would succeed Justice Kennedy on the High Court, the report then focuses on those areas of law where Justice Kennedy can be seen to have influenced the Court’s approach, or provided a fifth and deciding vote,17 with a view toward how the nominee might approach those same issues.18 Justice Kennedy’s retirement is likely to have significant implications for the Court, Congress, and the nation as a whole.19 Justice Kennedy, often described as the Roberts Court’s median vote,20 was frequently at the center of legal debates on 13 Id. 14 Id. One of Judge Kavanaugh’s co-clerks with Justice Kennedy was future-Justice Neil M. Gorsuch. As has been widely reported, Judge Kavanaugh and Justice Gorsuch also attended the same high school—Georgetown Preparatory School in Washington, D.C.—where they were two years apart. See, e.g., Michelle Hackman, The All-Boys High School Producing GOP Bigwigs, WALL ST. J. (July 11, 2018), https://www.wsj.com/articles/the-all-boys-high-schoolproducing-gop-bigwigs-1531310401; Moriah Balingit, With Brett Kavanaugh, Georgetown Prep Can Count Two Supreme Court Nominees Among its Alumni, WASH. POST (July 10, 2018), https://www.washingtonpost.com/news/ education/wp/2018/07/10/with-brett-kavanaugh-georgetown-prep-can-count-two-supreme-court-nominees-among-itsalumni/?utm_term=.62191f877a56; Sarah Mervosh, Kavanaugh and Gorsuch Both Went to the Same Elite Prep School, N.Y. TIMES (July 10, 2018), https://www.nytimes.com/2018/07/10/us/kavanaugh-gorsuch-georgetownprep.html; Brittany Shepherd, Trump’s Two SCOTUS Picks Also Went to High School Together, WASHINGTONIAN (July 9, 2018), https://www.washingtonian.com/2018/07/09/brett-kavanaugh-neil-gorsuch-georgetown-prep/. Of Justice Gorsuch, Judge Kavanaugh has said: [Justice Gorsuch] and I actually went to high school together at Georgetown Prep. I was two years ahead of him. And then we clerked together the same year for Justice Kennedy and got to know each other very well. We worked together in the Bush Administration, and we both became judges in 2006. We serve together now on the Appellate Rules Committee of the Judicial Conference, and were coauthors along with Bryan Garner and several other judges of a book on precedent. . . . So I know [Justice] Gorsuch well and have known him seemingly forever. He is a good friend. He is kind, funny, hard working, and brilliant. He’s a great writer and independent. With his smarts, his character, and his understanding of life and law, I firmly believe he will be one of the great Justices in Supreme Court history, like a Jackson or a Scalia. Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions (Feb. 3, 2017), in 92 NOTRE DAME L. REV. 1907 (May 2017) [hereinafter Kavanaugh, Two Challenges]. 15 Kavanaugh Biography, supra note 4. 16 See discussion infra in Predicting Nominees’ Future Decisions on the Court. 17 These areas are noted in CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon [hereinafter CRS Kennedy Report]. 18 See id. at 31–67 (noting every case in which Justice Kennedy cast a decisive vote on the Roberts Court). 19 See id. 20 Alicia Parlapiano & Jugal K. Patel, With Kennedy’s Retirement, the Supreme Court Loses Its Center, N.Y. TIMES (June 27, 2018), https://www.nytimes.com/interactive/2018/06/27/us/politics/kennedy-retirement-supreme-courtmedian.html. Congressional Research Service 2 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court the High Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues. Accordingly, a critical question now before the Senate as it considers providing its advice and consent21 to the President’s nomination to the High Court is how Judge Kavanaugh may view the many legal issues in which Justice Kennedy’s vote was often determinative.22 As a result, the report begins by discussing two cross-cutting issues—the nominee’s general judicial philosophy and his approach to statutory interpretation. It then addresses thirteen separate areas of law, arranged in alphabetical order, from “administrative law” to “takings.” Within each section, the report reviews whether and how Judge Kavanaugh has addressed particular issues in the opinions he authored.23 In some instances, the report also identifies other votes in which he participated (e.g., votes to join majority opinions authored by other D.C. Circuit judges, votes on whether the D.C. Circuit should grant en banc review to a decision of a three-judge panel, etc.). The report also analyzes, where relevant, Judge Kavanaugh’s non-judicial work, including a 21 U.S. CONST. art. II, § 2, cl. 2. 22 Judge Kavanaugh has himself commented on the judicial confirmation process, opining that it “has become badly flawed in recent decades.” See Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 MINN. L. REV. 1454, 1465–66 (2009) [hereinafter Kavanaugh, Separation of Powers]. The nominee has also offered a number of suggestions to improve the process. See id. at 1468 (“The Senate should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the President. Six months is sufficient time for senators to hold hearings, interest groups to register their preferences, and citizens to weigh in on the qualifications of a judicial nominee for lifetime office. At the end of that time, it seems that senators should stand and be counted. If a home-state senator or a group of ideologically-committed senators wishes to block a judicial nomination, they can do so. But they can do so by persuading their colleagues and voting, not through procedural maneuvers. In this way, voters can properly hold their senators accountable, nominees can receive prompt and respectful treatment, and key judicial vacancies can be filled without unnecessary delay.”); see also Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Courts and the Administrative State (Oct. 1, 2013), in 64 CASE W. RES. L. REV. 711, 715 (2014) [hereinafter Kavanaugh, Administrative State] (“My personal view is that the Senate should require a vote on all judicial nominees within six months of nomination. That would provide a set ground rule for how the Senate would consider the nominees. Now, it is not my place to say whether that should be a majority vote or what the Senate calls—in Washington speak—a cloture vote that requires sixty votes for something to happen. But either way, the Senate in my view should establish a strict time limit so that the process will come to a final determination within a set amount of time.”). 23 Judge Kavanaugh has also sat by designation on panels for the Eighth Circuit, the Ninth Circuit, and the U.S. District Court for the District of Columbia. While he did not author an opinion while sitting by designation on either of the circuit courts, he did author three opinions and joined a memorandum opinion and order of the U.S. District Court for the District of Columbia. See Beaumont Indep. Sch. Dist. v. United States, 944 F. Supp. 2d 23, 24 (D.D.C. 2013) (Kavanaugh, J., joining memorandum opinion and order); South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012) (Kavanaugh, J.); Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104 (2012); Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (Kavanaugh, J.), aff’d, 561 U.S. 1040 (2010). Congressional Research Service 3 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court number of speeches24 and academic articles,25 many of which address the role of the judiciary, separation of powers, and constitutional and statutory interpretation. While this report discusses many of Judge Kavanaugh’s non-judicial writings, it does not address two types of written work. First, the report does not discuss anything written by the nominee in a representative capacity for another party, such as a brief submitted on behalf of a client to a court, as such materials may provide limited insight into the advocate’s personal views on the law.26 For purposes of this report, this limitation also extends to writings related to Judge Kavanaugh’s former government service, such as his work for the George W. Bush Administration, the Office of the Independent Counsel, and the Office of the Solicitor General.27 Second, the report does not 24 See, e.g., Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Role of the Judiciary in Maintaining the Separation of Powers (Oct. 25, 2017), in HERITAGE FOUND., LECTURE (Feb. 1., 2018), https://www.heritage.org/sites/default/files/2018-02/HL1284.pdf [hereinafter Kavanaugh, Role of the Judiciary]; Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist (Sept. 18, 2017), in AM. ENTER. INST., 2017 WALTER BERNS CONSTITUTION DAY LECTURE, at 6, 18 (2017), https://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf [hereinafter Kavanaugh, From the Bench]; Kavanaugh, Two Challenges, supra note 14; Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Judge As Umpire: Ten Principles (Mar. 30, 2015), in 65 CATH. U. L. REV. 683 (2016) [hereinafter Kavanaugh, Judge As Umpire]; Kavanaugh, Administrative State, supra note 22; Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, in 89 NOTRE DAME L. REV. 1907 (2014) [hereinafter Kavanaugh, Our Anchor]. 25 See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118 (2016) (reviewing ROBERT A. KATZMANN, JUDGING STATUTES (2014)) [hereinafter Kavanaugh, Fixing Statutory Interpretation]; Kavanaugh, Separation of Powers, supra note 22. 26 See Confirmation Hearing on Federal Appointments: Hearing Before the S. Comm. on the Judiciary Part 1, 108th Cong. 419 (2003) (statement of John G. Roberts, Jr.) [hereinafter Roberts Confirmation Hearing] (“I do not believe that it is proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client.”); but see William G. Ross, The Questioning of Lower Federal Court Nominees During the Senate Confirmation Process, 10 WM. & MARY BILL RTS. J. 119, 161 (2001) (suggesting that, although “it is unlikely that judges would permit positions that they advocated as attorneys to directly bias their judicial decisions,” and “most lawyers advocate positions about which they hold indifferent or conflicting opinions,” it “often may” be possible to “discern a nominee’s political predilections from the types of clients and cases that a nominee has had as an attorney”). 27 It should be noted, however, that the nominee has previously remarked that he believes his experiences in these various roles were valuable to his career as a federal judge. See, e.g., Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit Before the S. Comm. on the Judiciary, S. Hrg. 109435, at 33, 109th Congress (2006) (statement of Brett M. Kavanaugh) [hereinafter Kavanaugh, 2006 Confirmation Hearing] (“I believe very much that it’s good to have judges who’ve participated in Government.”); see also Kavanaugh, Role of the Judiciary, supra note 24, at 2 (“I think the White House experience made me a far better judge than I otherwise would have been, in terms of understanding of government, of the legislative process, of the regulatory process, of national security decision making, the pressure, the ups and downs and the ins and outs of how our government operates at the very highest level. I believe my White House experience made me a more knowledgeable judge, certainly, and also, a more independent judge. Independent because working at the White House, at least in my view, helps give you the backbone and fortitude to say ‘no’ to the government—even when the stakes are high. I think Chief Justice John Roberts and Justice Elena Kagan, both of whom had substantial White House experience, would probably say that their White House experiences likewise have made them better jurists.”); Kavanaugh, Administrative State, supra note 22, at 713–14 (“White House service, it turns out, is very useful for a job on the D.C. Circuit. It gives you great respect, first of all, for the presidency, the demands of the executive branch, and the burdens of the presidency. But at the same time, it gives you perspectives that might be unexpected to some. Such experience helps refine your ability to determine whether the executive branch might be exaggerating or overstating how things actually work and the problems that would supposedly arise under certain legal interpretations. White House experience also helps—and history shows that executive branch experience helps—when judges need to show some fortitude and backbone in those cases where the independent judiciary has to stand up to the mystique of the presidency and the executive branch.”). Congressional Research Service 4 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court discuss the nominee’s writings that predate his graduation from law school, as such writings may be of limited import to gauging his educated views on the law. While the report discusses numerous cases and votes involving Judge Kavanaugh, it focuses particularly on cases in which the sitting panel was divided, as these cases arguably best showcase how he might approach a legal controversy whose resolution is a matter of dispute and is not necessarily clearly addressed by prior case law.28 In addition, the report highlights areas where the nominee has expressed views on the law that may contrast with those of some of his colleagues. To the extent that the nominee’s votes in particular cases arguably reflect broader trends and tendencies in his decisionmaking that he might bring to the High Court, the report highlights such trends. Nonetheless, this report does not attempt to catalog every matter in which Judge Kavanaugh has participated during his service on the D.C. Circuit. A separate report, CRS Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh, coordinated by Michael John Garcia, lists and briefly describes each opinion authored by the nominee during his tenure on the federal bench.29 Other CRS products discuss various issues related to the vacancy on the Court. For an overview of available products, see CRS Legal Sidebar LSB10160, Supreme Court Nomination: CRS Products, by Andrew Nolan. 28 See Jonathan H. Adler, What Happened When Merrick Garland Wrote for Himself, VOLOKH CONSPIRACY (Mar. 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/what-happened-when-merrickgarland-wrote-for-himself/ (“The best way to get a handle on a circuit judge’s judicial philosophy is to look at the judge’s concurrences and dissents.”); see also Aaron Nielson, D.C. Circuit Review—Reviewed: Brooding Spirits, YALE J. ON REG.: NOTICE & COMMENT (Jan. 30, 2016), http://yalejreg.com/nc/d-c-circuit-review-reviewed-brooding-spiritsby-aaron-nielson/ (“[I]f you really want to understand an appellate judge, look to his or her separate writings. Of course, most separate opinions don’t say much about the judge’s philosophy or personality; sometimes a judge thinks the panel just got it wrong. Even so, despite the fact that not all separate writings are windows to the soul, it is still true that reading opinions that judges don’t have to write can be telling.”). 29 CRS Kavanaugh Opinions Report, supra note 5. Congressional Research Service 5 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Predicting Nominees’ Future Decisions on the Court At least as a historical matter, attempting to predict how Supreme Court nominees may approach their work on the High Court is a task fraught with uncertainty.30 For example, Justice Felix Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the Court in 1939,31 disappointed32 some early supporters by subsequently becoming a voice for judicial restraint and caution when the Court reviewed laws that restricted civil liberties during World War II33 and the early Cold War era.34 Similarly, Justice Harry Blackmun, who served on the Eighth Circuit for a little over a decade prior to his appointment to the Court in 1970,35 was originally considered by President Richard Nixon to be a “strict constructionist” in the sense that he viewed the judge’s role as interpreting the law, rather than making new law.36 In the years that followed, however, Justice Blackmun authored the majority opinion in Roe v. Wade, which recognized a constitutional right to terminate a pregnancy.37 He was generally considered one of the more liberal voices on the Court when he retired in 1994.38 30 Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting Alignments, 1838–2009, 76 MO. L. REV. 999, 1040 (2011) (“[U]ncertainty is empirically well-founded. It is borne out by Justices’ overall voting records since at least 1838. The president’s odds of appointing a Justice who sides with appointees of his party have been no better than a coin flip.”); id. at 1021 (listing Justices William J. Brennan Jr., Tom C. Clark, Felix Frankfurter, Oliver Wendell Holmes Jr., John McLean, James Clark McReynolds, Stanley Forman Reed, David Souter, John Paul Stevens, Earl Warren, and James Moore Wayne as examples of jurists who “disappointed” the expectations of the President who appointed them to the Court); see also The Judicial Nomination and Confirmation Process: Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the Judiciary, 107th Cong. 195 (2001) (statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The Catholic University of America) (similar). 31 See Joseph L. Rauh, Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213, 220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he would become the dominant spirit and intellectual leader of the new liberal Court. After all, he had been, in the words of Brandeis, ‘the most useful lawyer in the United States’: defender of Tom Mooney, the alien victims of the Palmer Red Raids, the striking miners of Bisbee, Arizona, Sacco and Vanzetti, and too many others to mention.”); JAMES F. SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46– 47 (1989) (noting fears in some political circles that Justice Frankfurter was a Communist or Communist sympathizer, “inspir[ing] American conservatives to label Frankfurter a dangerous radical”); see generally NOAH FELDMAN, SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES 14, 21–27 (2010). 32 See, e.g., Rauh, supra note 31, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice Frankfurter’s] lifelong dedication to civil liberties.”). 33 See, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944) (Frankfurter, J., concurring) (contending that the propriety of the Japanese-American civilian exclusion order was the “business” of Congress and the Executive, not the Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (arguing for the constitutionality of a World War II-era law requiring students to salute the flag). 34 See, e.g., Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the conviction of three defendants under the Smith Act for conspiracy to organize the Communist Party as a group advocating the overthrow of the U.S. government by force). 35 See Blackmun, Harry Andrew, BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/blackmun-harry-andrew (last visited Aug. 13, 2018). 36 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979) (“Nixon found Blackmun’s moderate conservatism perfect. . . . [Blackmun] had a . . . predictable, solid body of opinions that demonstrated a levelheaded, strict-constructionist philosophy. . . . Blackmun was a decent man, consistent, wedded to routine, unlikely to venture far.”). 37 410 U.S. 113 (1973). 38 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (declaring that, by 1994, “Harry Blackmun was, by wide consensus, the most liberal member of the Supreme Court”). Congressional Research Service 6 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court The difficulty in attempting to predict how a nominee will approach the job of being a Justice remains even when the nominee has had a lengthy federal judicial career prior to nomination.39 Federal judges on the courts of appeals are bound by Supreme Court and circuit precedent40 and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions.41 Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law.42 As a result, the courts of appeals consider “many routine cases in which the legal rules are uncontroverted.”43 Because lower court judges are often bound by Supreme Court and circuit precedent, moreover, the vast majority44 of federal appellate opinions are unanimous. Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are decided without dissent.45 While the D.C. Circuit, where Judge Kavanaugh serves, witnesses more dissents on average than its sister circuits,46 the overwhelming majority of opinions issued by the nominee’s court are unanimous.47 Accordingly, while Judge Kavanaugh’s work on the D.C. Circuit may provide some 39 Judge Kavanaugh has served for twelve years on the D.C. Circuit. See Kavanaugh Biography, supra note 4. If confirmed, he would have the third-longest tenure on a federal appellate bench of the current members of the Court after Justice Alito (sixteen years) and Justice Breyer (twelve years). See Alito, Samuel A., Jr., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/alito-samuel-jr (last visited Aug. 13, 2018); Breyer, Stephen Gerald, BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/breyer-stephen-gerald (last visited Aug. 13, 2018). 40 See Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369, 1373–74 (D.C. Cir. 1979) (explaining that future panels are bound to follow precedent set by previous panels until the en banc court or Supreme Court overrules that precedent); see generally Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.J. 783, 816 n.160 (2006) (“Vertical stare decisis binds hierarchically inferior federal appellate judges to follow the Supreme Court’s on-point precedent. The relationship is vertical, or between inferior and superior.”). 41 See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (2009) (“Supreme Court decisions bind the courts of appeals in a way in which they do not bind the Court itself, and therefore narrow considerably the scope for those courts to exercise choice.”); see also DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES: PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES 171 (1999) (claiming that the nature of a judge’s work on a federal court of appeals allows “most circuit judges [to] chart a course of moderation” and “more often than not, a circuit judge’s opinions tend to betray outsiders’ perceptions of that judge as a sharp ideological extremist”). 42 Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U. MIAMI L. REV. 1051, 1052 n.8 (1991); see generally POSNER, supra note 41, at 367 (“[M]ore of the work of [the federal appellate] courts really is technical. . . . Most of the appeals they get can be decided uncontroversially by the application of settled principles”). 43 See Sirico & Drew, supra note 42, at 1052 n.8. 44 See Harry T. Edwards, Collegial Decision Making in the U.S. Courts of Appeals (N.Y.U. Sch. of Law, Pub. Law & Legal Theory Research Paper Series, Working Paper No. 17-47, Nov. 2017). 45 See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of circuit court panel dissents”); Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB. POL’Y 743, 753 (2014) (“Over ninety percent of the decisions issued by [the Tenth Circuit] are unanimous; that’s pretty typical of the federal appellate courts.”). 46 See Edwards, supra note 44, at 70–71 (providing data indicating that, over a five-year period beginning on September 30, 2011, roughly 4.5% of cases decided on the merits by the D.C. Circuit drew at least one dissenting opinion, compared to the nationwide average of 1.3% for the geographic circuit courts of appeals). 47 See id.; see also Douglas H. Ginsburg, Circuit Judge, U.S. Court of Appeals for the D.C. Circuit, Remarks Upon Receiving the Lifetime Service Award of the Georgetown Federalist Society Chapter, Georgetown University Law Center (Apr. 26, 2011), in 10 GEO. J.L. & PUB. POL’Y 1, 7 (2012) (noting that in 2010, panels of the D.C. Circuit “disposed of 873 cases, 191 of them with published opinions, but our nine active and four senior judges . . . issued a total of only nineteen dissenting opinions”); Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991– Congressional Research Service 7 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court insight into his general approach to particular legal issues,48 the bulk of the opinions that the nominee has authored or joined may not be particularly insightful with regard to his views on specific areas of law, or how he would approach these issues if he were a Supreme Court Justice. When a federal appellate judge takes the step to write separately, however, such an opinion need not accommodate the views of other colleagues, and can therefore provide unique insight into a circuit judge’s judicial approach.49 Even in closely contested cases where concurring or dissenting opinions are filed, however, it still may be difficult to determine the preferences of the nominated judge if the nominee did not actually write an opinion in the case.50 The act of joining an opinion authored by another judge does not necessarily reflect full agreement with the underlying opinion.51 For example, in an effort to promote consensus on a court, some judges will decline to dissent unless the underlying issue is particularly contentious.52 As one commentator notes, “the fact that a judge joins in a majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.’”53 Using caution when interpreting a judge’s vote isolated from a written opinion may be particularly important with votes on procedural matters. For example, a judge’s vote to grant an extension of time for a party to submit a filing generally does not signal agreement with the substantive legal position proffered by that party. And while some observers have highlighted votes by Judge Kavanaugh in favor of having certain three-judge panel decisions reconsidered by the D.C. Circuit sitting en banc, these votes should be viewed with a degree of caution. A vote to 2002, 70 GEO. WASH. L. REV. 259, 265 (2002) (noting that, from FY1995 through FY2001, a dissent was filed in only 9% of published decisions of the D.C. Circuit). 48 See YALOF, supra note 41, at 170 (“Although hardly dispositive, federal appellate opinions offer perhaps the best gauge available for predicting an individual’s future voting behavior on the Supreme Court.”). 49 See, e.g., M. Todd Henderson, Citing Fiction, 11 GREEN BAG 2D 171, 181 (2008) (“[N]on-majority opinions are quite different in tone and purpose. When a judge dissents or concurs, the shackles are removed . . . .”). 50 See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1754–55 (2015) (suggesting that the “presence of a concurrence or dissent serves as a signal” that the case before the court is a “hard case”); see generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1412–15 (1995) (noting the motivations that prompt judges to write concurring or dissenting opinions); Diane P. Wood, When to Hold, When to Fold, When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 CAL. L. REV. 1445, 1451–57 (2012) (describing the considerations that prompt judges to author separate opinions). 51 See Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y. TIMES (Oct. 24, 2015), http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html (quoting Justice Ruth Bader Ginsburg as remarking that “an opinion of the court very often reflects views that are not 100 percent what the opinion author would do, were she writing for herself”). 52 See Sanford Levinson, Trash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional Good Faith, 129 HARV. L. REV. F. 166, 174 (2016) (declaring the assumption that “all adjudicators are splendidly isolated” is “foolish,” and arguing that it may be “incumbent” upon judges to engage in “intellectual compromise[s]” “to serve the public weal”). There is an academic debate as to whether the decision to join a concurrence or dissent signals complete agreement with that opinion. Compare Robert H. Smith, Uncoupling the “Centrist Bloc”—An Empirical Analysis of the Thesis of A Dominant, Moderate Bloc on the United States Supreme Court, 62 TENN. L. REV. 1, 10 n.36 (1994) (arguing that “decisions to join or not join others’ opinions may in fact be influenced by a number of factors” outside of a judge’s agreement with that decision), with Jason J. Czarnezki et al., An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court, 24 CONST. COMMENT. 127, 143 (2007) (“[A] decision to join a special opinion is a more finely tuned tool, one that almost certainly indicates agreement not just with the outcome but also with the reasoning.”). 53 See Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L. REV. 915, 924 (2011). Congressional Research Service 8 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court rehear a case en banc could signal disagreement with the legal reasoning of the panel decision, and may suggest that a judge wants the entire court to have an opportunity to correct a perceived error by the panel.54 On the other hand, a vote to rehear a case en banc may be prompted by a judge’s desire to resolve an intracircuit conflict between panel decisions, or may be indicative of the judge’s view that the issue is of such importance as to merit consideration by the full court.55 Moreover, as one federal appellate judge noted in a dissent from a decision denying a petition for a rehearing en banc: Most of us vote against most such petitions . . . even when we think the panel decision is mistaken. We do so because federal courts of appeals decide cases in three judge panels. En banc review is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important cases. 56 Consequently, a vote for or against rehearing a case en banc or on other procedural matters does not necessarily equate to an endorsement or repudiation of a particular legal position.57 Finally, it should be noted that, despite having served on the federal appellate bench for more than a decade, Judge Kavanaugh has said little about some areas of law because of the nature of the D.C. Circuit’s docket and, as a consequence, it may be difficult to predict how he might rule on certain issues if he were elevated to the Supreme Court. Due to the D.C. Circuit’s location in the nation’s capital, and the number of statutes providing it with special or even exclusive jurisdiction to review certain agency actions, legal commentators generally agree that the D.C. Circuit’s docket, relative to the dockets of other circuits, contains a greater percentage of nationally significant legal matters.58 For instance, the D.C. Circuit hears a large number of cases on administrative59 and environmental law matters.60 In contrast, cases at the D.C. Circuit rarely, if 54 See Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or Collegiality Under Challenge?, 42 MD. L. REV. 766, 784 (1983) (noting that “[s]ome judges vote routinely for rehearings en banc on all cases with which they disagree”). 55 See Stephen L. Wasby, Why Sit En Banc?, 63 HASTINGS L.J. 747, 763–73 (2012). 56 See United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J., dissenting from denial of rehearing en banc); see also Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987) (Edwards, J., concurring in denial of rehearing en banc) (“By declining to rehear a case, ‘we do not sit in judgment on the panel; we do not sanction the result it reached’. . . . We decide merely that . . . review by the full court is not justified.”). 57 See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in denial of rehearing en banc) (“No one thinks a vote against rehearing en banc is an endorsement of a panel decision . . . .”). 58 See, e.g., Aaron Nielson, D.C. Circuit Review—Reviewed: The Second Most Important Court?, NOTICE & COMMENT (Sept. 4, 2015), http://yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-court-by-aaron-nielson/ (discussing reasons behind D.C. Circuit’s reputation as the “second most important court” after the Supreme Court). 59 See Kavanaugh, Administrative State, supra note 22, at 715 (“[T]he bread and butter of our docket[ ] is our administrative law docket. What I mean by that is determining in a particular case whether an administrative agency, like the EPA, the NLRB, or the FCC, exceeded statutory limits on their authority or violated a statutory prohibition on what they can do. These are the cases that come up to our court constantly. We see very complicated administrative records, and we adjudicate very complex statutes.”); see also Harry T. Edwards, A Conversation with Judge Harry T. Edwards, 16 WASH. U. J.L. & POL’Y 61, 64 (2004) (“The D.C. Circuit docket largely consists of very dense administrative law cases in appeals that often include huge records and numerous parties with their numerous briefs.”); Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL J.L. & PUB. POL’Y 131, 152 (2013) (“The modern D.C. Circuit hears a disproportionate share of administrative petitions and other cases involving the federal government . . . .”). 60 See Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. COLO. L. REV. 767, 790 (2008) (noting that, in a data set of 347 judicial votes cast in the federal courts of appeals from 2003 to 2005 on environmental law matters, “cases involving environmental statute interpretation tend to occur in the D.C. Circuit”); Patricia M. Wald, Regulation at Risk: Are Congressional Research Service 9 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court ever, involve “hot-button” social issues such as abortion, affirmative action, or the death penalty.61 Moreover, the D.C. Circuit docket has a lower percentage of cases involving criminal matters, prisoner petitions, or civil suits between private parties.62 As a result, this report focuses primarily on areas of law where Judge Kavanaugh has written extensively, and notes only in passing those areas where little can arguably be gleaned from his judicial record on account of his participation in few, if any, decisions directly addressing those particular areas of law. Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L. REV. 621, 623, 633 (1994) (stating that the D.C. Circuit has decided a number of significant environmental law cases). 61 See David G. Savage, Supreme Court Nominee Merrick Garland Has a Record of Restraint, Not Activism, L.A. TIMES (Mar. 18, 2016), http://www.latimes.com/nation/la-na-garland-legal-analysis-20160318-story.html. (“[T]he D.C. Circuit focuses more on dense regulatory questions than hot-button cultural issues.”). 62 See, e.g., Kavanaugh, Administrative State, supra note 22, at 715; John G. Roberts, Jr., What Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 377 (2006) (“[W]hen you look at the docket . . . you really see the differences between the D.C. Circuit and the other courts. One-third of the D.C. Circuit appeals are from agency decisions. That figure is less than twenty percent nationwide. About one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government; nationwide that figure is only five percent. All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide.”). Congressional Research Service 10 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Judge Kavanaugh’s Judicial Approach, Philosophy, and Influences Notwithstanding the difficulty of predicting a nominee’s future behavior, three overarching (and interrelated) considerations may inform an assessment of how a jurist is likely to approach the role of a Supreme Court Justice. First, the nominee’s general approach to the craft of judging—a phrase that this report uses to refer to the process of how a judge approaches key aspects of the job, including writing legal opinions and resolving legal disputes on a multi-member court—may be an important consideration in predicting how a jurist would behave on the High Court.63 Second, the judge’s overarching judicial philosophy, including how he evaluates legal questions as a substantive matter, is another central concern in gauging how a nominee may perform.64 Third, it may be helpful to reflect on a nominee’s influences or judicial heroes, as those individuals may exhibit qualities that the nominee will aspire to emulate.65 On all three fronts, there are a host of clues on how President Trump’s latest nominee to the High Court views the proper role of a Supreme Court Justice. Indeed, Judge Kavanaugh is a wellknown jurist with a robust record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role of the judge fairly clear.66 This section begins by discussing how the nominee has approached the craft of judging, including by examining how he prepares for a case, his writing style, his approach to working with his colleagues on the D.C. Circuit, and how his opinions have fared at the Supreme Court. The section then turns to more substantive questions about Judge Kavanaugh’s judicial philosophy, noting two key aspects that have undergirded how the nominee has resolved legal disputes in the cases before him on the appellate bench. Finally, this section notes the jurists that Judge Kavanaugh has identified as judicial role models, either because of their general approach to the craft of judging or for their judicial philosophy. The Craft of Judging After his nomination to the Supreme Court, commentators noted Judge Kavanaugh’s “reputation on both sides of the aisle as a solid and careful judge,”67 highlighting his diligence throughout the process of authoring opinions for the D.C. Circuit.68 For instance, according to Time Magazine, the nominee requires his law clerks to create, even for routine cases, “thick black binders” “filled with memos and briefs . . . [and] every law-review article” that has been written on the relevant topic, resulting in “binders stack[ing] up in the kitchenette in [Judge] Kavanaugh’s chambers.”69 In this vein, Judge Kavanaugh’s colleague, Judge Laurence Silberman, called the nominee “one of the most serious judges” he “ever encountered.”70 Echoing these comments are anonymous evaluations in the Almanac of the Federal Judiciary from attorneys who practiced in front of the nominee, describing Judge Kavanaugh as “extremely well prepared,” “careful[],” and “thorough” in his approach.71 63 See ROBERT A. KATZMANN, COURTS AND CONGRESS 14 (1997) (suggesting for Supreme Court nominees with prior judicial experience, Senators “can focus on the way nominees approach the craft of judging: how they identify issues, present facts, apply precedent, address opposing arguments, and state the grounds for decision”); LINDA GREENHOUSE, THE U.S. SUPREME COURT: A VERY SHORT INTRODUCTION 28–29 (2012) (observing that a “judicial record that indicates how a potential nominee approaches the craft of judging” can provide insights into how a nominee may approach the role of Supreme Court Justice). 64 See CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS 98 (2007) (declaring “[j]udicial philosophy” to be the “Holy Grail of Senate confirmation hearings”). Congressional Research Service 11 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Judge Kavanaugh’s Writing Style. On a technical level, Judge Kavanaugh’s writing has been widely praised for its clarity, including by the President, who described the nominee as “a brilliant jurist with a clear and effective writing style.”72 And D.C. Circuit practitioners have likewise described Judge Kavanaugh’s writing as “well reasoned,” “thorough and clear,” and “meticulous.”73 As one commentator remarked, Judge Kavanaugh has “made a name for himself on the D.C. Circuit with clear, concise writing.”74 It has also been observed that Judge Kavanaugh employs a number of mechanical techniques in crafting his judicial opinions, “includ[ing] strong lead-in sentences, lists, summaries, pointed questions, informal expressions and lots of repetition.”75 Such techniques are evident throughout his written opinions wherein the nominee frequently employs bulleted lists,76 mathematical expressions and logical sequences77—quite unusual in judicial writing—and regularly parses out the various components of his analysis through the use of introductory ordinals78 (i.e., first, second, third). Judge Kavanaugh also 65 See Richard Wolf, Supreme Court Brett Kavanaugh Likes Conservative, and Some Liberal, Justices and Judges, USA TODAY (July 13, 2018), https://www.usatoday.com/story/news/politics/2018/07/13/supreme-court-pick-brettkavanaugh-conservative-liberal-friends-mentor/780256002/ (noting, with respect to Judge Kavanaugh, that “you can tell a lot about” the nominee based on his judicial friends and mentors); see also 2006 Confirmation Hearing, supra note 27, at 23–24 (identifying the jurists who have served as “role models” to the nominee). 66 Nielson, supra note 28 (describing Judge Kavanaugh as a “very significant figure” on the D.C. Circuit). 67 Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, TIME MAG., July 23, 2018, at 22; Jack Goldsmith, Kavanaugh Will Right the Course of the Court, TIME MAG., July 23, 2018, at 25 (“Kavanaugh’s hundreds of judicial opinions show his commitment to careful, honest, detached interpretation of the Constitution and laws of the United States.”). 68 Bennett, supra note 67, at 23 (“On the [D.C. Circuit], Kavanaugh developed a reputation as a diligent judge who often combed through dozens of drafts for even routine opinions . . . .”). 69 Id. 70 Id. (quoting Judge Silberman). 71 See Brett M. Kavanaugh, 2 ALMANAC OF THE FED. JUDICIARY, 2018 WL 3222137, at *4 [hereinafter ALMANAC] (“He is extremely well prepared. . . . He asks very hard questions; he understands the issues fully . . . [and] he thinks things through very carefully.”). 72 President Donald J. Trump, Remarks at Supreme Court Nomination Ceremony (July 9, 2018) (transcript available at http://www.cq.com/doc/newsmakertranscripts-5353814?0). 73 See ALMANAC supra note 71, at *4. 74 Jacqueline Bell, ‘Not a Complicated Case’: Kavanaugh’s Straightforward Style, LAW360 (July 10, 2018), https://www.law360.com/articles/1061755; see also id. (observing that “legal writing experts agree: Whatever you think of Judge Kavanaugh’s judicial philosophy, this judge can write”). 75 Id. 76 See, e.g., PHH Corp. v. CFPB, 881 F.3d 75, 177–78, 179–81 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting); U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 420 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc); White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1261 (D.C. Cir. 2014) (Kavanaugh, J., concurring in part and dissenting in part); United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013). 77 See, e.g., Priests for Life v. HHS, 808 F.3d 1, 17 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc) (“In most religious liberty cases, the Government has said in essence: ‘Do X or suffer a penalty.’ The religious objector responds that X violates his or her religious beliefs. . . . Here, the situation is only slightly more complicated. The Government has said in essence: ‘Do X or Y or suffer a penalty.’ X is provide contraceptive coverage. Y is submit the form.”); Seven-Sky v. Holder, 661 F.3d 1, 31 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“But as we learn in logic class, when A=B and B=C, then A=C.”), abrogated by Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012); see also Kavanaugh, Role of the Judiciary, supra note 24, at 5 (“I tend to be a judge who finds clarity more readily than some of my colleagues—perhaps a little less readily than a couple. I probably apply something approaching a 65/35 or 60/40 rule. In other words, if it is 60/40 clear, it is not ambiguous, and I do not resort to the canons. I think a few of my colleagues and other judges around the country apply more of, say, a 90/10 rule, at least in certain cases. Only if the proffered interpretation is at least 90/10 clear will they call it clear.”). 78 See, e.g., PHH Corp., 881 F.3d at 166–68 (Kavanaugh, J., dissenting); Garza v. Hargan, 874 F.3d 735, 753 (D.C. Cir. Congressional Research Service 12 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court seemingly attempts to enhance the accessibility of his opinions through the occasional witticism or colloquialism.79 For instance, in one dissent, he equated the majority’s decision to grant a writ of mandamus requiring a district court to enter a temporary stay to using a “chainsaw to carve your holiday turkey.”80 On a more substantive level, the nominee frequently includes an extensive discussion on the background and history of a given issue or topic, particularly in his dissenting opinions.81 Throughout his judicial and non-judicial writings, moreover, Judge Kavanaugh relies heavily on academic scholarship, citing law review articles, treatises, and other materials,82 perhaps reflective of the depth of research for which the nominee is renowned.83 The nominee has commented: “I love looking at treatises, law review articles. The more I can read about how we got in this statute to where we are, in this constitutional provision and how it’s been applied. So academic writing does matter to me.”84 In a similar vein, he has advised his fellow jurists: [T]o be a good judge . . . we must keep learning. We do not know it all. . . . We have to constantly learn. We should draw from the law reviews and the treatises that professors 2017) (en banc) (Kavanaugh, J., dissenting), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018); U.S. Telecom Ass’n, 855 F.3d at 417–18 (Kavanaugh, J., dissenting from denial of rehearing en banc); Priests for Life, 808 F.3d at 15–16 (Kavanaugh, J., dissenting from denial of rehearing en banc); Cardoza, 713 F.3d at 660; Seven-Sky, 661 F.3d at 32–34, 48–50 (Kavanaugh, J., dissenting); Heller v. D.C., 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (PCAOB), 537 F.3d 667, 698–700 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010); id. at 710–11, 713–15. 79 Lorenzo v. SEC, 872 F.3d 578, 598 (D.C. Cir. 2017) (“In a Houdini-like move, the Commission rewrote the administrative law judge’s factual findings to make those factual findings correspond to the legal conclusion that [the defendant] was guilty and deserving of a lifetime suspension.”), cert. granted sub nom. Lorenzo v. SEC, 138 S. Ct. 2650 (2018); U.S. Telecom Ass’n, 855 F.3d at 429 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“What First Amendment case or principle supports that theory? Crickets.”); Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1079 (D.C. Cir. 2017) (“Believe it or not, the fax machine is not yet extinct.”); id. at 1082 (“If you are finding the FCC’s reasoning on this point difficult to follow, you are not alone. We do not get it either.”); Priests for Life, 808 F.3d at 21 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“To begin with, how do we determine whether the Government has a ‘compelling interest’ in overriding a fundamental constitutional or statutory right such as RFRA’s right to religious freedom? Good question.”); Seven-Sky, 661 F.3d at 23 (Kavanaugh, J., dissenting) (“The Tax Code is never a walk in the park.”). 80 See Belize Soc. Dev., Ltd. v. Gov’t of Belize, 668 F.3d 724, 734 (D.C. Cir. 2012) (Kavanaugh, J., dissenting). 81 See, e.g., PHH Corp., 881 F.3d at 164–65, 167–71 (Kavanaugh, J., dissenting) (recounting the history of executive and independent agencies before discussing the governance of the CFPB); Heller, 670 F.3d at 1287–88 (Kavanaugh, J., dissenting) (recounting the history of semi-automatic rifles in the United States); Free Enter. Fund, 537 F.3d at 687–97 (“discuss[ing] the text and original understanding [of Article II and the Appointments Clause] at some length”). 82 See, e.g., PHH Corp., 881 F.3d at 178 (Kavanaugh, J., dissenting) (quoting a number of law review articles to support his assertion that there is a “deeply rooted tradition” that independent agencies are headed by multiple commissioners or board members); U.S. Telecom Ass’n, 855 F.3d at 421–22 (Kavanaugh, J., dissenting from denial of rehearing en banc) (quoting a law review article by Stephen Breyer on administrative law and another by Abbe R. Gluck and Lisa Schultz Bressman on statutory interpretation); Priests for Life, 808 F.3d at 23 (dissenting from denial of rehearing en banc) (quoting Eugene Volokh on the First Amendment); Vann v. Dep’t of Interior, 701 F.3d 927, 929 (D.C. Cir. 2012) (quoting Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane on federal practice and procedure); Heller, 670 F.3d at 1273 (Kavanaugh, J., dissenting) (quoting Eugene Volokh and Joseph Blocher on the Second Amendment); id. at 1281 (quoting a number of law review articles, including by Mario L. Barnes, Erwin Chemerinsky, Alan Brownstein, Stephen A. Siegel, and Darrell A.H. Miller, in support of the proposition that the application of different levels of scrutiny in individual rights cases amounts to using balancing tests); Free Enter. Fund., 537 F.3d at 690, 692 (citing Akhil Reed Amar and Saikrishna Prakash on Article II); id. at 697 (citing Donna M. Nagy and Peter L. Strauss on separation-of-powers issues); id. at 713 (quoting Laurence H. Tribe on Article II). 83 See Bennett, supra note 67, at 23. 84 Kavanaugh, Two Challenges, supra note 14, at 1908. Congressional Research Service 13 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court have worked on for years to study a problem that we may have a couple of days to focus on. We should study the briefs and precedents carefully and challenge our instincts or prior inclinations. We are not the font of all wisdom.85 Working on a Multi-member Court. Given Judge Kavanaugh’s industrious approach toward legal research and writing, it may be unsurprising that the nominee has been incredibly prolific both on and off the bench,86 perhaps providing one indication of the quality of the nominee’s work.87 With regard to judicial opinion writing, the nominee frequently writes separately to express his particular views on the law, authoring more separate opinions than any of his colleagues on the D.C. Circuit during the 12 years he served on the appellate bench.88 Moreover, as Table A-1 indicates, during the nominee’s tenure on the D.C. Circuit, Judge Kavanaugh also authored separate opinions at a greater rate than his colleagues who served as active judges on that court during that entire time period.89 While a judge’s rate of concurrence or dissent in the abstract may reveal very little about the judge’s ideological approach to a particular area of law,90 Judge Kavanaugh’s tendency to write separately is somewhat probative in understanding his broad views on judging. As a general matter, some legal observers characterize a judge who tends to write separately as being more concerned with “getting the law right” than with countervailing interests that might otherwise lead a judge to join fully the opinion for the court.91 In a 2016 speech, Judge Kavanaugh noted 85 Kavanaugh, Judge As Umpire, supra note 24, at 689. 86 See CRS Legal Sidebar LSB10170, Brett M. Kavanaugh: Selected Primary Material, by Julia Taylor, Keri B. Stophel, and Eva M. Tarnay (noting the nominee has authored more than three hundred opinions during his judicial career, as well as dozens of other writings). 87 Stephen J. Choi et al., Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges, 58 DUKE L.J. 1313, 1320 (2009) (“All else being equal, a judge who publishes more opinions is better than a judge who publishes fewer opinions.”); but see Daniel A. Farber, Supreme Court Selection and Measures of Past Judicial Performance, 32 FLA. ST. U.L. REV. 1175, 1178 (2005) (“[P]roductivity may measure good judicial traits such as effort or writing ability or bad judicial traits such as self-centeredness or sloppy treatment of facts.”). 88 See Table A-1. 89 Id. 90 See Eugene Kiely, Fact Check: Gorsuch’s “Mainstream” Measurement, FACTCHECK.ORG (Apr. 7, 2017), https://www.factcheck.org/2017/04/gorsuchs-mainstream-measurement/ (noting similarities between the dissent rates of Justices Alito, Sotomayor, and Gorsuch in concluding that “[a] circuit court judge’s overall dissent rate isn’t useful in determining a nominee’s ideology”); cf. CROSS, supra note 45, at 174 (noting that the addition of a more ideologically driven judge to a circuit court panel increases the likelihood that that judge “wield[s] more influence on the ideologically opposed panel member”). 91 See Frank B. Cross, Collegial Ideology in the Courts, 103 NW. U.L. REV. 1399, 1399–1400 (2009) (“Collegiality and ideology inevitably conflict. Given the range of ideological preferences and political ‘hot button’ issues facing courts today, one would expect judges to disagree about the resolution of certain legal issues. Because such disagreement puts collegiality and individuality in conflict, any model of judicial decisionmaking must account for the interaction of these potentially opposing factors.”); see generally Lee Epstein, William M. Landes, & Richard A. Posner, Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, 3 J. LEGAL ANALYSIS 101 (2011). Cf. Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CAL. L. REV. 299, 310–13 (2004) (using a judge’s dissents and concurrences as a proxy for how many disagreements a judge had with his or her colleagues); Corey Rayburn Yung, A Typology of Judging Styles, 107 NW. U. L. REV. 1757, 1775 (2013) (“Two types of disagreements were incorporated in the measurement: concurrences and dissents. In both situations, a judge presumably writes separately because she cannot find common ground with other written opinions.”). As one commentator has noted, while “a study of dissent alone will exclude instances of judicial disagreement,” there may be “compelling reasons to concentrate on the frequency of dissent alone.” See Jeffrey A. Lefstin, The Measure of the Doubt: Dissent, Indeterminacy, and Interpretation at the Federal Circuit, 58 HASTINGS L.J. 1025, 1051–52 (2007) (“The concurring judge is not so easy to pin down: he may agree with the outcome but disagree with the reasoning adopted by the majority; he may agree that the legal regime dictates the outcome of the case but wish to express dissatisfaction with that legal regime; he may be engaged in preemptive exegesis of the opinion to influence future Congressional Research Service 14 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court that, while he “love[s] the idea of courts working together” and trying to “find common ground,” he “dissent[s] a fair amount” and that “dissent is good” for a court.92 The frequency with which Judge Kavanaugh has authored majority opinions for divided judicial panels may also support the view that consensus is not necessarily a driving force in the nominee’s approach to opinion writing.93 As Table A-2 demonstrates, while not as pronounced as his own propensity to author concurring or dissenting opinions, Judge Kavanaugh’s majority opinions have tended to draw more separate opinions (and dissents specifically) relative to the majority opinions of his colleagues the D.C. Circuit.94 Jurists of various backgrounds have long debated the benefits and drawbacks of consensus on a multi-member court,95 and Judge Kavanaugh himself has claimed that a judge needs to “balance” various, competing interests when deciding whether to write separately.96 Regardless of the merits of that debate, the fact that the nominee tends to author separate opinions and prompts others to write separately may suggest that the nominee values independence and consistency in his judicial approach over consensus building,97 ideals the nominee has explicitly endorsed in his cases; he may wish to criticize (or expand) dictum in the majority opinion. Only the first of these possibilities represents a disagreement arising from the indeterminacy of the legal regime, and disentangling them requires subjective judgments by the researcher about the degree to which the concurring judge expresses agreement or disagreement with the majority opinion.”); see generally Wald, supra note 50, at 1415 (“Concurrences . . . serve as vehicles for judges to present additional arguments rejected or ignored by the majority, to preserve doubts or reservations about the majority opinion for the future, to caution against its too-broad application, to disagree with all or part of its reasoning. The tone of concurrences is usually calm and rational, not agitated as in a dissent—after all, their authors agree with the result.”). 92 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Justice Scalia and Deference, Keynote Address at the Center for the Administrative State Public Policy Conference: Rethinking Judicial Deference: History, Structure, and Accountability, at 36:38 (June 2, 2016), https://vimeo.com/169758593?utm_source=email&utm_ medium=vimeo-cliptranscode-201504&utm_campaign=28749 [hereinafter Kavanaugh, Justice Scalia]. 93 Cf. Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 AM. J. POL. SCI. 362, 364–65 (2001) (arguing that Justices, driven by a norm of suppressing dissent in order to preserve consensus, will write broad unanimous opinions). 94 See Table A-2. 95 Compare Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639, 1640–41 (2003) (“Collegiality mitigates judges’ ideological preferences and enables us to find common ground and reach better decisions.”), and Deanell Reece Tacha, Judges on Judging: The “C” Word: On Collegiality, 56 OHIO ST. L.J. 585, 586 (1995) (“I nevertheless believe that there is a value in collegiality that affects the quality of judicial decisionmaking.”), with RICHARD A. POSNER, DIVERGENT PATHS: THE ACADEMY AND THE JUDICIARY, at ix–x (2016) (criticizing the “staleness in the current judicial culture—a tendency of judges to recite propositions of doubtful veracity just because they had been repeated before; a lack of curiosity and imagination; a lack of clarity and candor; and a weak sense of fact”), and Antonin Scalia, Dissents, in SCALIA SPEAKS: REFLECTIONS ON LAW, FAITH, AND LIFE WELL LIVED 274–90 (Christopher J. Scalia & Edward Whelan eds., 2017) (discussing the advantages of “separate opinions . . . both within and without the court”). 96 Kavanaugh, Justice Scalia, supra note 92, at 37:36. 97 See William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 DUKE L.J. 1087, 1089–90 (1989) (“One appropriate measure of independence is the frequency a judge submits separate concurring and dissenting opinions. An independent judge is more likely to write separate opinions, rather than simply join colleagues without expressing a distinct point of view.”); RICHARD A. POSNER, LEE EPSTEIN & WILLIAM M. LANDES, THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE 256 (2013) (noting that the aim of a dissent “is to promote one’s own legal views”); Rochelle Cooper Dreyfuss, The Federal Circuit As an Institution: What Ought We to Expect?, 43 LOY. L.A. L. REV. 827, 835 (2010) (noting a high dissent rate suggests a judge has “locked into a position from which he or she refuses to deviate”); but see David C. Vladeck, Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 FLA. ST. U.L. REV. 1415, 1440 (2005) (“Dissents can (but not always) tell us something about independence, but only a small part of the story.”). Congressional Research Service 15 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court non-judicial writings.98 Moreover, Judge Kavanaugh’s apparent propensity to eschew consensus in favor of candor99 may reflect his preference for clear rules in adjudication, as discussed in more detail below.100 There may be limits to the lessons that can be drawn from the frequency in which the nominee writes separately from other colleagues on the bench or prompts others to write separately. The choice to write separately is one that stems from various factors, and may simply depend on the personality and preferences of an individual judge, or the nature of the dispute before the court.101 More broadly, while the data contained in Table A-1 and Table A-2 may indicate Judge Kavanaugh’s willingness to depart from the views of his colleagues, legal commentators have broadly noted his “very good reputation” for promoting collegiality on the D.C. Circuit and for “working with people across ideological lines.”102 This reputation aligns with the nominee’s public comments about how a judge should behave toward his colleagues. For instance, in a 2016 speech, Judge Kavanaugh described the “proper demeanor” for a judge as having empathy for one’s colleagues, “demonstrat[ing] civility,” and not “be[ing] a jerk.”103 In his remarks during his Supreme Court nomination ceremony, Judge Kavanaugh described the seventeen other judges he worked with on the D.C. Circuit as “colleague[s]” and “friend[s].”104 While a judge’s propensity to write on behalf of himself or a divided panel may suggest that the judge has idiosyncratic views on the law,105 Judge Kavanaugh’s record on appeal to the Supreme Court appears to belie such a suggestion. As Table A-3 indicates, during the nominee’s twelve years of service on the D.C. Circuit, the Supreme Court has reversed an opinion authored by Judge Kavanaugh only once,106 and reversed one additional opinion in which the nominee 98 See Kavanaugh, Judge As Umpire, supra note 24, at 688 (arguing that “to be a good judge and a good umpire you have to possess some backbone”). 99 See Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1388 (1995) (noting that “candor is often forsaken in the process of amassing the votes necessary for a majority”). 100 See Kavanaugh, Two Challenges, supra note 14, at 1909 (“I believe very deeply in . . . the rule of law as a law of rules . . . .”). Judge Kavanaugh’s experience as a law professor may also explain his tendency to write separately. See Aaron J. Ley et al., The Mysterious Persistence of Non-Consensual Norms on the U.S. Supreme Court, 49 TULSA L. REV. 99, 122 (2013) (“Those Justices having experience as law professors are more likely to write separate opinions than Justices who began their careers in other professions.”); see also ALMANAC, supra note 71, at *4 (“‘Intellectually he is a law professor . . . .’”). 101 See supra notes 90–91, 97. 102 Jess Bravin & Brent Kendall, Kavanaugh’s Collegial Nature Could Change Supreme Court’s Tenor, WALL ST. J. (July 15, 2018), https://www.wsj.com/articles/kavanaughs-collegial-nature-could-change-supreme-courts-tenor1531687687; see also Aaron Nielson, D.C. Circuit Review—Reviewed: Justice Brett Kavanaugh? Some Preliminary Thoughts, NOTICE & COMMENT (July 13, 2018), http://yalejreg.com/nc/d-c-circuit-review-reviewed-justice-brettkavanaugh-some-preliminary-thoughts/ (describing Judge Kavanaugh “as nice as he appears” and passing the “collegiality” test); ALMANAC, supra note 71, at *4 (describing the nominee as “collegial”). 103 Kavanaugh, Judge As Umpire, supra note 24, at 689. 104 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Remarks at Supreme Court Nomination Ceremony (July 9, 2018) (transcript available at http://www.cq.com/doc/newsmakertranscripts-5353814?0) [hereinafter Kavanaugh, Nomination Ceremony]. 105 See Hunter Smith, Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion, 24 YALE J.L. & HUMAN. 507, 510–24 (2012) (discussing the criticism of dissent “as an expression of private idiosyncrasy”); but see supra notes 90–91 (noting that a judge’s ideology has little to do with his dissent rate). 106 See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). Congressional Research Service 16 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court joined.107 Relative to his colleagues,108 the dearth of scrutiny by the Supreme Court of Judge Kavanaugh’s opinions is notable and could be a metric by which to gauge the nominee’s work.109 Perhaps more telling of the strength of the nominee’s record before the Court are several cases in which the Supreme Court adopted110 the reasoning in Judge Kavanaugh’s opinions.111 As Table 107 See Munaf v. Geren, 553 U.S. 674 (2008). 108 For example, comparing Judge Kavanaugh to Judge Thomas B. Griffith, a colleague whose time of service on the D.C. Circuit is nearly identical to the nominee (Judge Griffith was appointed a year earlier than Judge Kavanaugh), Judge Griffith authored at least three opinions and joined six additional opinions that were reversed or vacated by the Supreme Court during the years he served on the D.C. Circuit with the nominee. See United States v. Class, No. 153015, 2016 U.S. App. LEXIS 12620 (D.C. Cir. July 5, 2016) (Griffith, J., joining per curiam opinion), rev’d, 138 S. Ct. 798 (2018); Perry v. Merit Sys. Prot. Bd., 829 F.3d 760 (D.C. Cir. 2016) (Griffith, J., joining majority opinion), rev’d, 137 S. Ct. 1975 (2017); Maqaleh v. Hagel, 738 F.3d 312, 317 (D.C. Cir. 2013), cert. granted, judgment vacated sub nom. Amanatullah v. Obama, 135 S. Ct. 1545 (2015), and cert. granted in part, judgment vacated in part sub nom. alNajar v. Carter, 135 S. Ct. 1581 (2015); EME Homer City, 696 F.3d 7 (Griffith, J., joining majority opinion authored by Judge Kavanaugh), rev’d and remanded, 134 S. Ct. 1584 (2014); Shelby Cty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012) (Griffith, J., joining majority opinion), rev’d, 133 S. Ct. 2612 (2013); Auburn Reg’l Med. Ctr. v. Sebelius, 642 F.3d 1145 (D.C. Cir. 2011) (Griffith, J.), rev’d and remanded, 568 U.S. 145 (2013); Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1228 (D.C. Cir. 2009) (Griffith, J.), vacated and remanded sub nom. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012); Taylor v. Blakey, 490 F.3d 965, 968 (D.C. Cir. 2007) (Griffith, J., joining majority opinion), vacated and remanded sub nom. Taylor v. Sturgell, 553 U.S. 880 (2008); Davis v. FEC, 501 F. Supp. 2d 22, 24 (D.D.C. 2007) (Griffith, J.), rev’d, 554 U.S. 724 (2008). Comparable calculations for the time period Judge Kavanaugh served on the D.C. Circuit for other active status colleagues are as follows: Chief Judge Merrick Garland (zero written opinions vacated or remanded by the Supreme Court; joined four opinions that were vacated or remanded by the Supreme Court); Judge Karen L. Henderson (1, 3); Judge Judith W. Rogers (3, 6); Judge David S. Tatel (4, 3). The methodology for these calculations is contained in Table A-3. 109 See William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 325–26 (1998) (hypothesizing that the Supreme Court “rarely takes cases” from certain “top-ranked” federal appellate judges because these judges “get things ‘right’”); Frank B. Cross & Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1405 (2009) (“[The] Supreme Court selectively reviews the most important decisions rendered by circuit courts, making it reasonable to use these important decisions as a metric. . . . [T]o the degree that evaluation of circuit court judges is employed as a standard for Supreme Court appointments, it seems appropriate to consider the fate of their decisions at the Supreme Court level.”); but see id. at 1405 (noting the rate of Supreme Court review may not fully gauge the quality of a federal appellate judge’s work because “[m]any incorrect circuit court rulings may go unexamined by the Supreme Court, which is not a court of ‘error correction’”). Cf. Keith Perine, Sotomayor Poses Difficult Choice for Senate Republicans, CONG. Q. TODAY ONLINE NEWS (May 26, 2006), http://www.cq.com/doc/news-3125545?0 (quoting Wendy E. Long, Counsel to the Judicial Confirmation Network, arguing that the high reversal rate of then-Judge Sonia Sotomayor indicated that she was a “liberal activist”); but see Guy-Uriel Charles et al., Sonia Sotomayor and the Construction of Merit, 61 EMORY L.J. 801, 811 (2012) (arguing that “the rate at which the Supreme Court reverses a judge” is a poor metric to gauge judicial activism). 110 While legal commentators have agreed that the Supreme Court has “adopted” positions taken by Judge Kavanaugh in the lower courts on a number of occasions, discrepancies exist as to the precise number. Compare David Lat, The Supreme Court Sweepstakes: The Case for Judge Kavanaugh, ABOVE THE LAW (July 3, 2018, 9:59 AM), https://abovethelaw.com/2018/07/the-supreme-court-sweepstakes-the-latest-state-of-play-and-the-case-for-judgekavanaugh/ (“By my count, Judge Kavanaugh’s opinions have been adopted by the justices 11 times . . . .”), and Matt Schlapp, With Brett Kavanaugh, America Will Have a Bold, Brilliant Supreme Court Justice, THE HILL (July 5, 2018, 7:00 AM), http://thehill.com/opinion/judiciary/395524-with-brett-kavanaugh-america-will-have-a-bold-brilliantsupreme-court (“[D]uring the past decade, the Supreme Court has adopted Kavanaugh’s position an astonishing 11 times.”), with Scott Shane, et al., Influential Judge, Loyal Friend, Conservative Warrior—and D.C. Insider, N.Y. TIMES (July 14, 2018), https://www.nytimes.com/2018/07/14/us/politics/judge-brett-kavanaugh.html (“His record in the Supreme Court has been exceptional, with the justices adopting positions advanced in his opinions 13 times.”), and Carrie Severino, 8 Things You Didn’t Know About Brett Kavanaugh, NAT’L REV. (July 18, 2018, 12:00 PM), https://www.nationalreview.com/bench-memos/8-things-you-didnt-know-about-brett-kavanaugh/ (“On at least 13 occasions, the Supreme Court has adopted positions that Judge Kavanaugh previously took in his opinions.”). 111 See Cross & Lindquist, supra note 109, at 1402–05 (discussing why the “success of judges’ opinions before the Congressional Research Service 17 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court A-3 demonstrates, the Supreme Court has reversed a number of judgments from which the nominee dissented in the lower court. In at least five of these cases, the nominee’s reasoning was adopted, at least in part, by the Supreme Court.112 Beyond the cases in which the Court directly reviewed a judgment in which Judge Kavanaugh authored a substantive opinion, in at least five other cases, the Supreme Court adopted, at least in part, reasoning from an earlier opinion of the nominee in a separate case (i.e., not the lower court opinion under review by the Supreme Court).113 More broadly, the Supreme Court has cited Judge Kavanaugh’s opinions more frequently than it has cited other judges. As noted in Table A-4, the Supreme Court has cited the nominee’s separate opinions (i.e., dissents and concurrences), either in a majority or an individual Justice’s separate opinion, eight times during the nominee’s tenure on the D.C. Circuit. As Table A-5 indicates, no other D.C. Circuit judge who served on active status for Judge Kavanaugh’s entire tenure on that court was cited by the Supreme Court as much during this same time period. And, as Table A-6 demonstrates, the Supreme Court cited only one other federal appellate judge who served on active duty during Judge Kavanaugh’s entire tenure on the D.C. Circuit—Judge Jeffrey Sutton of the Sixth Circuit—more frequently than the nominee.114 While there may be limits as to what can reasonably be discerned by the sheer number of times the Supreme Court cites a particular jurist’s separate opinions,115 these quantitative data suggest Supreme Court . . . is a legitimate factor to be considered” when evaluating circuit court judges). 112 See, e.g., District of Columbia v. Wesby, 138 S. Ct. 577 (2018); Michigan v. EPA, 135 S. Ct. 2699 (2015); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014); United States v. Jones, 565 U.S. 400 (2012); Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010). 113 See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014) (adopting the logic of Grocery Manufacturers Ass’n v. EPA, 693 F.3d 169, 180–92 (D.C. Cir. 2012) (Kavanaugh, J., dissenting)); Lagos v. United States, 138 S. Ct. 1684 (2018) (interpreting the Mandatory Victims Restitution Act in a manner largely consistent with Judge Kavanaugh’s majority opinion in United States v. Papagno, 639 F.3d 1093 (D.C. Cir. 2011)); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) (agreeing with Judge Kavanaugh’s partial dissent in Doe v. Exxon Mobil Corp., 654 F.3d 11, 73 (D.C. Cir. 2011), maintaining that the Alien Tort Statute did not apply to claims against foreign corporations); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (agreeing with Judge Kavanaugh’s partial dissent in Doe v. Exxon Mobil Corp., 654 F.3d 11, 72 (D.C. Cir. 2011) (Kavanaugh, J., dissenting in part), that the presumption against the extraterritorial application of federal law applies to the Alien Tort Statute); Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (concluding, as Judge Kavanaugh concluded in his concurring opinion in El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 856–57 (D.C. Cir. 2010) (Kavanaugh, J., concurring), that the political question doctrine generally does not prevent courts from reviewing the constitutionality of federal statutes). There have been at least two cases in which the Supreme Court resolved a circuit split in a manner that abrogated an earlier opinion authored by Judge Kavanaugh. For instance, in Kokesh v. SEC, 137 S. Ct. 1635 (2017), the Supreme Court abrogated the nominee’s earlier opinion in Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010) (Kavanaugh, J.). See also, e.g., Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. ex rel. Fed Nat’l Mortg. Ass’n v. Raines, 534 F.3d 779 (D.C. Cir. 2008) (Kavanaugh, J.), abrogated by Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017). 114 To ensure consistency, the searches for purposes of Table A-5 and Table A-6 were limited to majority opinions written by judges who were on active status as circuit judges during the entire period in which Judge Kavanaugh served, from the date after he assumed office as a Circuit Judge (May 31, 2006) through the date of his nomination to the Supreme Court (July 9, 2018). As a consequence, judges who joined the bench after May 31, 2006 are excluded from the search, as were judges who retired from active status before July 9, 2018. To ensure a somewhat consistent comparison, Table A-5 and Table A-6 list only citations to opinions written by the appellate judge between the relevant timeframe. As a result, if a Supreme Court opinion is written in the operative time period, but cites to an opinion written before May 31, 2006, that citation is not included in either table. 115 See Farber, supra note 87, at 1191 n.53 (noting the “problem” with a 2004 study valuating lower court judges by number of citations by the Supreme Court “is that the numbers are small, ranging from 0 to 16,” and therefore there was a risk that “the numbers could represent mostly random variation”); cf. Robert Anderson IV, Distinguishing Judges: An Empirical Ranking of Judicial Quality in the United States Courts of Appeals, 76 MO. L. REV. 315, 324 Congressional Research Service 18 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court that the nominee is an influential lower court judge, and one the Justices on the Supreme Court hold in some esteem.116 This assessment also finds support in qualitative assessments of Judge Kavanaugh by legal commentators, who have described the nominee as one who approaches the craft of judging with “serious[ness]” and “commands wide and deep respect among scholars, lawyers and jurists.”117 Judicial Philosophy Turning to the question of judicial philosophy,118 while commentators have described Judge Kavanaugh’s interpretative approach in various ways—including as “conservative”119 or “pragmatic”120—the nominee’s own writings have been fairly clear as to his judicial approach. Perhaps the best insights into Judge Kavanaugh’s approach toward judging come from a speech he delivered in 2017 at Notre Dame Law School. Specifically, in themes that pervade both his judicial opinions and his non-judicial writing, Judge Kavanaugh focused on two central visions for adjudication in which he “believe[s] very deeply”: (1) the “rule of law as a law of rules” and (2) the role of the judge as “umpire.”121 The Rule of Law as a Law of Rules. Judge Kavanaugh’s first vision for judging suggests that the nominee embraces a more formalist view of the law, favoring clarity to flexibility when rendering legal opinions. The phrase “rule of law as a law of rules” itself references Justice Antonin Scalia’s famous speech from 1989 in which he argued for a more formalist approach that embraced clear rules and principles in lieu of balancing tests that, in the view of Justice Scalia, transformed the judge from a determiner of law to a finder of fact.122 Judge Kavanaugh has (2010) (surveying the literature on the assessment of lower court judges based on citation counts and noting the frequent criticism that it is “impossible to measure judicial performance with quantitative data”); Lawrence B. Solum, A Tournament of Virtue, 32 FLA. ST. U.L. REV. 1365, 1389 (2005) (characterizing the argument “that citation rate correlates with judicial excellence” as “somewhat obscure”). 116 See Choi & Gulati, supra note 91, at 306 (suggesting the number of times an appellate judge is “cited by the Supreme Court” is indicative of the quality of that judge); RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 72 (1990) (arguing that “citation studies,” despite their imperfections, “remain an attractive tool of judicial evaluation”); cf. Richard A. Posner, The Learned Hand Biography and the Question of Judicial Greatness, 104 YALE L.J. 511, 540 (1994) (arguing that the number of citations to Judge Learned Hand indicates he was a “great judge”). 117 See Akhil Reed Amar, A Liberal’s Case for Brett Kavanaugh, N.Y. TIMES (July 9, 2018), https://www.nytimes.com/ 2018/07/09/opinion/brett-kavanaugh-supreme-court-trump.html; see also supra notes 66–71 and accompanying text. 118 In critiquing the judicial nomination process, see supra note 22, the nominee has commented that “questions regarding general judicial philosophy can shed light on matters relevant to judicial decision making and to the Senate’s ultimate decision without threatening judicial independence.” Kavanaugh, Separation of Powers, supra note 22, at 1467. 119 See, e.g., David G. Savage, Brett Kavanaugh, a Washington Veteran, Is Trump’s Second Pick for the Supreme Court, L.A. TIMES (July 6, 2018), http://www.latimes.com/politics/la-na-pol-brett-kavanaugh-supreme-court20180709-story.html (“‘I predict that he would be a rock-solid conservative in the Alito-Thomas mold.’” (quoting Justin Walker, former law clerk to Judge Kavanaugh)). 120 Domenico Montanaro, Who is Brett Kavanaugh, President Trump’s Pick for the Supreme Court?, NPR.ORG (July 9, 2018), https://www.npr.org/2018/07/09/626164904/who-is-brett-kavanaugh-president-trumps-pick-for-the-supremecourt (“[B]ased on some 300 opinions in 12 years on the federal bench, Kavanaugh is considered a pragmatic but conservative judge, who believes in textualism and originalism.”); Edith Roberts, Potential Nominee Profile: Brett Kavanaugh, SCOTUSBLOG (June 28, 2018, 5:48 PM), http://www.scotusblog.com/2018/06/potential-nominee-profilebrett-kavanaugh (“Perhaps because of his years of executive-branch experience, Kavanaugh generally brings a pragmatic approach to judging, although his judicial philosophy is conservative . . . .”). 121 Kavanaugh, Two Challenges, supra note 14, at 1909 (“I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire.”). 122 Antonin Scalia, Associate Justice, Supreme Court of the U.S., The Rule of Law as a Law of Rules (Feb. 14, 1989), Congressional Research Service 19 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court embraced legal formalism in a variety of contexts. For the nominee, critical questions for the judiciary include how “can we make the rule of law more stable, and how can we increase confidence in judges as impartial arbiters of the rule of law”?123 The answer to these questions for Judge Kavanaugh is to establish “stable rules of the road” for interpreting law “ahead of time,” thereby enhancing the legitimacy of the judiciary by “prevent[ing] [courts] from allowing . . . personal feelings about a particular issue [to] dictate” how a case is resolved.124 As a result, Judge Kavanaugh has maintained that judicial decisionmaking that is not grounded in clear rules “threatens to undermine the stability of the law and the neutrality (actual and perceived) of the judiciary.”125 With respect to statutory interpretation, the nominee has criticized binaries in which the invocation of a particular interpretive rule depends on a threshold question about whether the text being interpreted is ambiguous or clear.126 Ambiguity is often the threshold inquiry for determining whether a court should, for example, employ legislative history as an interpretive aid127 or defer to an administrative agency’s legal interpretation.128 For Judge Kavanaugh, questioning whether text is ambiguous is problematic because “there is no objective or determinate way to figure out whether something is ambiguous.”129 Because, in Judge Kavanaugh’s view, “judgments about clarity versus ambiguity turn on little more than a judge’s instincts,” such an approach to interpretation threatens judicial legitimacy, as “it is hard for judges to ensure that they are separating their policy views from what the law requires of them.”130 Instead, as discussed in more detail below,131 the nominee has argued that judges should “stop” using the “ambiguity trigger” in statutory interpretation and instead “strive to find the best reading of the statute” based on the text, context, and established rules of construction.132 in 56 U. CHI. L. REV. 1175 (Fall 1989). 123 Brett M. Kavanaugh, One Government, Three Branches, Five Controversies: Separation of Powers Under Presidents Bush and Obama, MARQ. LAW., Fall 2016, at 19 [hereinafter Kavanaugh, One Government]. 124 Id. 125 See Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2143. 126 See Kavanaugh, Two Challenges, supra note 14, at 1910 (“Here’s my biggest problem. Several substantive canons of statutory interpretation, such as constitutional avoidance, legislative history, and Chevron, depend on an initial determination of whether the text is clear or ambiguous.”). 127 See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J., concurring) (“Resort to legislative history is only justified where the face of the Act is inescapably ambiguous . . . .”). 128 See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”). 129 Kavanaugh, Two Challenges, supra note 14, at 1913; see also Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2137 (“One judge will say that the statute is clear, and that should be the end of it. The other judge will respond that the text is ambiguous, meaning that one or another canon of construction should be employed to decide the case. Neither judge can convince the other. That’s because there is no right answer.”); Kavanaugh, Role of the Judiciary, supra note 24, at 5 (“Here is the problem. And it is a major problem. All of these canons depend on a problematic threshold question. Courts may resort to the canons only if the statute is not clear but rather is ambiguous. But how do courts know when a statute is clear or ambiguous?”). 130 See Kavanaugh, Role of the Judiciary, supra note 24, at 6. 131 See discussion infra in Statutory Interpretation. 132 See Kavanaugh, Two Challenges, supra note 14, at 1912; see also Kavanaugh, Role of the Judiciary, supra note 24, at 7, 10 (“[C]ourts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons. Once they have discerned the best reading of the text in that way, they can depart from that baseline if required to do so by any of the relevant substantive canons.”). Congressional Research Service 20 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court Judge Kavanaugh’s criticism of modern constitutional interpretation parallels his apprehensions about statutory interpretation, with the nominee expressing his broad concerns about “vague and amorphous” standards employed in constitutional interpretation, which he views as “antithetical to impartial judging.”133 One of the nominee’s primary criticisms concerns the use of tiers of scrutiny, such as strict scrutiny or rational basis review, to evaluate whether government action is permissible.134 Central to the nominee’s criticism of the tiers of scrutiny is their requirement that a judge make a determination about whether a governmental interest is sufficiently “compelling” or “important,” an inquiry that he views as lacking any objective measurement, and which puts the judge “in the position of making judgment calls that inevitably seem rooted in policy, not law.”135 In this vein, Judge Kavanaugh’s critique of the tiers of scrutiny echoes similar criticisms by Justice Clarence Thomas, who observed in a 2016 dissent that the “Constitution does not prescribe tiers of scrutiny,”136 as well as Justice Scalia, who once described the tiers of scrutiny as adding an “element of randomness” to constitutional interpretation.137 While Judge Kavanaugh has been less specific as to how judges “should square up to the problem” of ambiguity in constitutional interpretation,138 his dissent in Heller v. District of Columbia (Heller II) suggests that he believes focusing on a constitutional provision’s “text, history, and tradition” provides a more stable alternative.139 The “key threshold question” in Heller II concerned the constitutional test that a court should “employ to assess” whether a gun law comported with the Second Amendment.140 And while acknowledging that in its cases interpreting the Second Amendment, “the [Supreme] Court never said something as succinct as ‘Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations,’” Judge Kavanaugh concluded that the “clear message” to “take away from the Court’s holdings and reasoning”141 is to eschew balancing tests “in favor of categoricalism—with the categories defined by text, history, and tradition.”142 At the same time, there are limits to Judge Kavanaugh’s formalism. As the nominee has acknowledged, “there are areas of the law that sometimes entail discretion. And it is important to acknowledge that sometimes judges must exercise reasoned decision-making within a law that gives judges some discretion over the decision.”143 Accordingly, Judge Kavanaugh has cautioned against a vision of judging that could be “caricatured as being ‘every case is simply mechanical 133 See Kavanaugh, Two Challenges, supra note 14, at 1919. 134 See id. at 1915. 135 Id. 136 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J., dissenting). 137 See United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). 138 See Kavanaugh, Two Challenges, supra note 14, at 1919 (“At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these ‘exceptions’ cases.”). 139 Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). 140 Id. at 1271. 141 Id.; see also id. at 1273 (“[T]he Court made no mention of strict or intermediate scrutiny when approving such laws. Rather, the test the Court relied on—as it indicated by using terms such as ‘historical tradition’ and ‘longstanding’ and ‘historical justifications’—was one of text, history, and tradition.”). 142 Id. at 1282. 143 Kavanaugh, Judge As Umpire, supra note 24, at 692; Kavanaugh, Role of the Judiciary, supra note 24, at 5 (“To be sure, on occasion, the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common-law-like function. Federal Rule of Evidence 501 is a good example.”). Congressional Research Service 21 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court and robotic for judges.’”144 To the nominee, there are certain cases where “[t]here is a body of precedent that helps inform” a decision, but nonetheless the judge must exercise some degree of discretion in reaching a decision.145 Judge Kavanaugh identifies a number of questions that he believes require such discretion, including, among others: “what is ‘reasonable’ under the Fourth Amendment?”; “[w]hat is a ‘compelling government interest’ under the Religious Freedom Restoration Act?”; and “what are ‘unreasonable restraints of trade’ for purposes of the Sherman Act.”146 At the same time, the nominee has contended that ambiguity in the law exists in “far fewer places than one would think,”147 and, to the extent possible, judges should avoid “injecting” ambiguity into the heart of interpretation.148 Judge as Umpire. The second, and closely related, pillar of Judge Kavanaugh’s judicial philosophy—an embrace of the role of the judge as “umpire”—derives from an analogy Chief Justice John Roberts used during his Supreme Court confirmation hearing wherein he likened a judge’s job to that of an umpire in baseball. During that hearing, the future Chief Justice described the umpire and judge as having “limited” roles in that a good judge, like an umpire, does not “make the rules,” but instead “applies” them to ensure “everybody plays by the rules.”149 Judge Kavanaugh has discussed “the notion of judges as umpires” extensively150 in his nonjudicial writings, highlighting his “agree[ment] with that vision of the judiciary.”151 According to the nominee: The American rule of law . . . depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of cases would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.152 In this vein, Judge Kavanaugh has defined “a neutral, impartial judiciary” as one “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.”153 This vision of a neutral, impartial judiciary is 144 Kavanaugh, Judge As Umpire, supra note 24, at 692. 145 Id. 146 Id. (“[W]hat is ‘reasonable’ under the Fourth Amendment? There is a body of precedent that helps inform that, but what’s ‘reasonable’ under the Fourth Amendment is not a question that can be answered by staring at a code or dictionary. What is a ‘compelling government interest’ under the Religious Freedom Restoration Act? ‘Compelling government interest’ is all the statute says—what are judges supposed to do with that? Rule 501 of the Federal Rules of Evidence directs judges to devise evidentiary privileges in light of ‘reason and experience.’ How are we supposed to do that? The Sherman Act prohibits ‘unreasonable restraints of trade.’ How are we supposed to figure out what are unreasonable restraints of trade?”). 147 Kavanaugh, Our Anchor, supra note 24, at 1926–27. 148 Kavanaugh, Role of the Judiciary, supra note 24, at 7. 149 Roberts Confirmation Hearing, supra note 26, at 55. 150 See, e.g., Kavanaugh, Judge As Umpire, supra note 24, passim; Kavanaugh, Two Challenges, supra note 14, passim; Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2119–21; Kavanaugh, Our Anchor, supra note 24, at 1927. 151 Kavanaugh, Two Challenges, supra note 14, at 1919. 152 Kavanaugh, Role of the Judiciary, supra note 24, at 4. 153 Kavanaugh, Two Challenges, supra note 14, at 1909. In his remarks during his nomination ceremony, moreover, Judge Kavanaugh stated: “I revere the Constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic.” Kavanaugh, Nomination Ceremony, supra note 104; see also Kavanaugh, 2006 Confirmation Hearing, supra note 27, at 45 (“In terms of the independence of the judiciary, I think that is something that is the hallmark of our judiciary, the hallmark of our system that judges are independent from the legislative branch and independent from the executive branch. I think that is central to my understanding of the proper judicial role.”). Congressional Research Service 22 Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court echoed throughout the nominee’s non-judicial writings and speeches,154 as well as in his written opinions155 and during his confirmation hearing in 2006 as a nominee to the D.C. Circuit.156 For instance, Judge Kavanaugh emphasized at that hearing his view that “the worst moments in the Supreme Court’s history have been moments of judicial activism . . . where the Court went outside its proper bounds . . . in interpreting clauses of the Constitution to impose its own policy views and to supplant the proper role of the legislative branch.”157 As a result, the nominee has highlighted his belief “in judicial restraint, recognizing the primary policymaking role of the legislative branch in our constitutional democracy.”158 These broad statements about the role of the judge as a neutral umpire may prompt the question as to how the nominee strives to achieve such neutrality. In accepting the nomination to the Supreme Court, Judge Kavanaugh articulated what he viewed as a “straightforward” means to ensure that a judge remains “independent” and “interpret[s] the law” but does “not make the law.” Specifically, Judge Kavanaugh stated that a judge must interpret the Constitution “as written, informed by history and tradition and precedent.”159 At a high level, this statement summarizes the three main aspects of the nominee’s approach to ensuring that a judge remains an umpire, an approach that emphasizes (1) the primacy of the text of the law being interpreted, (2) an awareness of history and tradition, and (3) adherence to precedent. Each of these themes is examined below. Textualism. A foundational aspect of Judge Kavanaugh’s judicial philosophy is his embrace of textualism, the doctrine that the words of a governing text are paramount to understanding the meaning of a law.160 As discussed in more detail below,161 Judge Kavanaugh has, like Justice Scalia, emphasized the “centrality of the words of the statute” and counseled against the use of certain “substantive principles of interpretation”162 that, in the nominee’s view, pose risks to 154 See, e.g., Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2120 (“For me, one overarching goal is to make judging a neutral, impartial process in all cases—not just statutory interpretation cases. Like cases should be treated alike by judges of all ideological and philosophical stripes, regardless of the subject matter and regardless of the identity of the parties to the case.”); id. at 2121 (describing “the neutral and impartial rule of law, and . . . the ideal and reali [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45293. Public record. Not legal advice.