President Donald Trump has chosen Brett Kavanaugh, a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, as his next nominee for the U.S. Supreme Court.
The first clues that it was Kavanaugh came from Peter Baker on Twitter:
It had also been reported today that Trump's advisors had been well aware of Kavanaugh's comments from 2009 on the indictment of a sitting president:
"The indictment and trial of a sitting President, moreover, would cripple the federal government..."
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Kavanaugh is perhaps best known for the leading role he played in drafting the Starr report, which advocated for the impeachment of President Bill Clinton––and his views about when to impeach a president are likely to become contentious subjects during his Senate confirmation hearing.
Kavanaugh, for his part, has since expressed misgivings about the Starr report; in 2009, he wrote that Clinton should have been spared the investigation, saying that indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis.” Writing in the Minnesota Law Review, he suggested that Congress should pass laws that would protect a president from civil and criminal lawsuits until they leave office. He added that there was always a way to remove a “bad-behaving or lawbreaking President.”
“If the president does something dastardly,” he wrote, “the impeachment process is available.”
Kavanaugh also was tasked with investigating the death of deputy White House counsel Vince Foster in 1994. He concluded Foster's death was a suicide, though it did little to quell suspicions of murder from many Clinton opponents.
Kavanaugh further made a name for himself as a member of President George W. Bush's administration, serving for two years as Senior Associate Counsel and Associate Counsel to the President and as Assistant to the President and as the White House Staff Secretary thereafter. There was some controversy after Bush first nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit; Kavanaugh's nomination stalled in the Senate for three years on charges that he was too partisan. He was eventually sworn in by Justice Anthony Kennedy, for whom he had previously clerked, and whose seat he now assumes.
Among Kavanaugh's more notable opinions:
- ON ABORTION: Kavanaugh has said that he considers Roe v. Wade binding and that he would seek to uphold it; he has, however, ruled in favor of some abortion restrictions. For example, in October 2017, Kavanaugh, in an unsigned divided panel opinion, found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. Although the D.C. Circuit reversed its judgment a few days later, Kavanaugh dissented. The Supreme Court later vacated the D.C. Circuit's opinion.
- ON THE AFFORDABLE CARE ACT: Although the D.C. Circuit, in the case of Seven-Sky v. Holder, upheld the Affordable Care Act as legitimate under the Commerce Clause––legislation which empowers Congress to regulate interstate commerce––Kavanaugh dissented based on his belief that the court did not have jurisdiction to hear the case. He cited 1867’s Anti-Injunction Act, which prohibits people from challenging taxes until after they’ve paid them. (Kavanaugh viewed the individual mandate as a tax that could not be challenged until the first mandate penalties were levied in the spring of 2015.)
- ON TERRORISM: Kavanaugh, in concurrence with the en banc circuit, found that Ali al-Bahlul could be retroactively convicted of war crimes, provided existing statute already made it a crime "because it does not alter the definition of the crime, the defenses or the punishment." He later wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if the international community did not recognize his crimes as offenses as war crimes under the law of war.
Kavanaugh is the son of Martha Gamble, who served as a Maryland State Circuit Court Judge from 1995 to 2001. He is married to Ashley Estes, who served as Personal Secretary to the President for President Bush from 2001 to 2004, and has two daughters. President Trump is said to resent Kavanaugh's close relationship with the Bushes, though White House officials assured the press it would not hurt Kavanaugh's chances at the nomination.
Reactions to the news streamed in on Twitter:
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