Brett Kavanaugh

Brett Kavanaugh
Judge of the United States Court of Appeals for the District of Columbia Circuit
Incumbent
Assumed office May 30, 2006
Appointed by	George W. Bush
Preceded by	Laurence Silberman
White House Staff Secretary
In office June 6, 2003 – May 30, 2006
President	George W. Bush
Preceded by	Harriet Miers
Succeeded by	Raul F. Yanes
Personal details
Born	Brett Michael Kavanaugh (1965-02-12) February 12, 1965 Washington, D.C.
Political party	Republican
Spouse	Ashley Estes ​ (m. 2004)​
Children	2
Education	Yale University (BA, JD)

Brett Michael Kavanaugh (/ˈkævənɔː/; born February 12, 1965) is an American attorney and jurist who serves as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He is currently a nominee to be an Associate Justice of the Supreme Court of the United States.

He graduated from Yale College cum laude, with a degree in American history, where he was a member of the fraternity Delta Kappa Epsilon. After graduating from Yale Law School, Kavanaugh began his career as a law clerk and then a postgraduate fellow working under Judge Ken Starr. After Starr left the D.C. Circuit to take the position as head of the Office of Independent Counsel, Kavanaugh followed him to the OIC and assisted Starr with his various investigations concerning President Bill Clinton. Kavanaugh played a lead role in drafting the Starr Report, which urged the impeachment of President Bill Clinton. After the 2000 U.S. presidential election (in which Kavanaugh worked for the George W. Bush campaign in the Florida recount), Kavanaugh joined the administration as White House Staff Secretary and was a central figure in its efforts to identify and confirm judicial nominees.

Kavanaugh was first nominated to the U.S. Court of Appeals for the D.C. Circuit by President Bush in 2003. His confirmation hearings were contentious; they stalled for three years over charges of partisanship. Kavanaugh was ultimately confirmed to the D.C. Circuit in May 2006 after a series of negotiations between Democratic and Republican U.S. Senators. An analysis covering the period 2003–2018 found that Kavanaugh had the most or second-most conservative voting record on the D.C. Court in every policy area.

To fill the vacancy created by the retirement of Associate Justice Anthony Kennedy, President Donald Trump nominated Kavanaugh on July 9, 2018, to serve as an Associate Justice of the Supreme Court of the United States. During the confirmation process, Christine Blasey Ford alleged that in the early 1980s, when both were in high school, Kavanaugh had attempted to rape her. Kavanaugh "categorically and unequivocally" denied that the event occurred. Over the next few days, two other women alleged sexual misconduct by Kavanaugh. Kavanaugh strongly denied all the allegations, claiming it was a "political hit" by Democrats and left-wing activists.

Early life and education

File:Brett Kavanaugh Yale Yearbook (cropped).jpg

Kavanaugh as a student at Yale

Kavanaugh was born on February 12, 1965, in Washington, D.C., the son of Martha Gamble (Murphy) and Everett Edward Kavanaugh Jr. His mother was a history teacher at Woodson and McKinley high schools in Washington in the 1960s and 1970s. She earned her law degree from Washington College of Law in 1978 and served as a Maryland state Circuit Court judge from 1995 to 2001 in Montgomery County. His father was an attorney and served as the president of the Cosmetic, Toiletry and Fragrance Association for two decades. Kavanaugh is of Irish descent.

Kavanaugh was raised in Bethesda, Maryland. As a teenager he attended Georgetown Preparatory School, a Catholic all-boys high school, where he was two years senior to future U.S. Supreme Court Justice Neil Gorsuch. At Georgetown Prep, he was captain of the school's basketball team and played as a wide receiver and cornerback for the school's football team. He graduated in 1983.

Kavanaugh was friends with classmate Mark Judge; both were in the same class with Maryland State Senate member Richard Madaleno.

After prep school, Kavanaugh went to Yale University and majored in History. Several of Kavanaugh's Yale classmates remembered him as a "serious but not showy student" who loved sports, especially basketball. He unsuccessfully tried out for the Yale Bulldogs men's basketball team, and later played for two years on the university's junior varsity team instead. He also wrote articles about basketball and other sports for the Yale Daily News, and was a member of the fraternity Delta Kappa Epsilon. Kavanaugh graduated from Yale in 1987 with a Bachelor of Arts cum laude.

Kavanaugh remained at Yale to attend Yale Law School During law school he lived in a dilapidated group house with future judge James E. Boasberg and played basketball with Professor George L. Priest, who was the sponsor of the school's Federalist Society. Kavanaugh served as a Notes Editor for the Yale Law Journal, and graduated with a Juris Doctor in 1990.

Early legal career (1990–2006)

Brett Kavanaugh while working for the Independent Counsel in the 1990s

Kavanaugh first worked as a law clerk for Judge Walter King Stapleton of the United States Court of Appeals for the Third Circuit. During Kavanaugh's clerkship, Stapleton wrote the majority opinion in Planned Parenthood v. Casey, in which the Third Circuit upheld many of Pennsylvania's abortion restrictions. Priest recommended Kavanaugh to Ninth Circuit Judge Alex Kozinski, who was regarded as a feeder judge. After clerking for Kozinski, Kavanaugh next interviewed for a clerkship with Chief Justice William Rehnquist on the U.S. Supreme Court, but was not offered a clerkship.

Kavanaugh was admitted to the Maryland Bar in 1990 and the District of Columbia Bar in 1992.

In 1992, Kavanaugh then earned a one-year fellowship with the Solicitor General of the United States, Ken Starr. Kavanaugh next clerked for Supreme Court Justice Anthony Kennedy 1993–1994, working alongside his high school classmate Neil Gorsuch and with future-Judge Gary Feinerman.

Kavanaugh with President George W. Bush and other White House staffers in 2001. Kavanaugh is seated directly to the left of Bush.

After his Supreme Court clerkship, Kavanaugh worked until 1997 for Ken Starr again as an Associate Counsel in the Office of the Independent Counsel, where his colleagues included Rod Rosenstein and Alex Azar. In that capacity, he handled a number of the novel constitutional and legal issues presented during the investigation of the death of Vincent Foster. Though Starr's investigation concluded that Foster had indeed committed suicide, Kavanaugh has been criticized for investing federal money and other resources into investigating partisan conspiracy theories surrounding the cause of Foster's death.

From 1997 to 1998, Kavanaugh was a partner at the law firm of Kirkland & Ellis. In 1998 he rejoined Starr as an Associate Counselor. In Swidler & Berlin v. United States (1998), Kavanaugh argued his first and only case before the Supreme Court. Arguing for Starr's office, Kavanaugh asked the court to disregard attorney-client privilege in relation to the investigation of Foster's death. The court rejected Kavanaugh's arguments by a vote of 6–3.

Kavanaugh was a principal author of the Starr Report to Congress, released in September 1998, on the Monica Lewinsky–Bill Clinton sex scandal; the report argued on broad grounds for Clinton's impeachment. Kavanaugh had urged Starr to ask Clinton sexually graphic questions, and described Clinton as being involved in "a conspiracy to obstruct justice", having "disgraced his office" and "lied to the American people". The report provided extensive and explicit descriptions of each of the President's sexual encounters with Monica Lewinsky, a level of detail which the authors described as "essential" to the case against Clinton.

In 1999, Kavanaugh rejoined the law firm of Kirkland & Ellis, as a partner. While there in 2000, he was pro bono counsel of record for relatives of Elián González, a six-year-old rescued Cuban boy. After the boy's mother's death at sea, relatives in the U.S. wanted to keep him from returning to the care of his sole surviving parent, his father in Cuba. Kavanaugh was among a series of lawyers who unsuccessfully sought to stop efforts to repatriate Gonzalez to Cuba. The district court, the Circuit Court and the Supreme Court all followed precedent, refusing to block the boy's return to his home.

While at Kikland & Ellis, Kavanaugh authored two amicus briefs to the Supreme Court, supporting religious activities and expressions in public places. The first, in 2000, in Santa Fe Independent School District v. Doe, argued that a student speaker at football games voted for by a majority of students should be treated as private speech in a limited public forum; the second, in Good News Club v. Milford Central School, argued that a Christian Bible-instruction program should have the same access, after school, to school facilities, as other non-curriculum-related student groups.

In December 2000, Kavanaugh joined the legal team of George W. Bush, which was trying to stop the ballot recount in Florida. After Bush became president in January 2001, Kavanaugh was hired as an associate by the White House Counsel, Alberto Gonzales. There, Kavanaugh worked on the Enron scandal, the successful nomination of Chief Justice John Roberts, and the unsuccessful nomination of Miguel Estrada. Starting in July 2003, he served as Assistant to the President and White House Staff Secretary, succeeding Harriet Miers. In that position he was responsible for coordinating all documents going to and from the president.

U.S. Circuit Judge (2006–present)

President George W. Bush first nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003, to a vacancy created by Judge Laurence Silberman, who took senior status in November 2000. Kavanaugh's nomination was stalled in the Senate for nearly three years. Democratic senators accused him of being too partisan, with Senator Dick Durbin calling him the "Forrest Gump of Republican politics". In 2003, the American Bar Association rated Kavanaugh as "well qualified", but, after opposition from Senate Democrats, rated him in 2006 as only "qualified". His nomination was opposed by People for the American Way.

The United States Senate Committee on the Judiciary recommended confirmation on a 10–8 party-line vote on May 11, 2006, and Kavanaugh was thereafter confirmed to the court by the United States Senate on May 26, 2006, by a vote of 57–36. On June 1, 2006, he was sworn in by Justice Anthony Kennedy, for whom he had previously clerked, during a special Rose Garden ceremony at the White House. Kavanaugh was the fourth judge nominated to the D.C. Circuit by Bush and confirmed by the United States Senate. Kavanaugh began hearing cases on September 11, 2006, and had his formal investiture on September 27, at the Prettyman Courthouse. His first published opinion was released on November 17, 2006.

Kavanaugh being sworn in by Justice Anthony Kennedy as President George W. Bush and Kavanaugh's wife, Ashley Estes Kavanaugh, look on

In July 2007, Democratic Senators Patrick Leahy and Dick Durbin accused Kavanaugh of "misleading" the Senate Judiciary Committee during his nomination. Durbin and Leahy accused Kavanaugh of lying to them in his confirmation hearing when he denied being involved in formulating the Bush administration's detention and interrogation policies in the aftermath of the September 11 terrorist attacks. In 2002, Kavanaugh had met with other White House lawyers, and talked about whether or not the Supreme Court would approve of denying lawyers to prisoners detained as enemy combatants. Kavanaugh had previously been a law clerk for Supreme Court Justice Anthony Kennedy, and predicted in that meeting that Kennedy would not approve of denying legal counsel to those prisoners. Durbin said, "It appears that you misled me, the Senate Judiciary Committee and the nation." This issue re-emerged in July 2018 as Kavanaugh was under consideration for a nomination to the Supreme Court, which Kavanaugh received.

Notable cases

When Kavanaugh has written an opinon and the case has been considered by the Supreme Court, that court has adopted his position thirteen times while reversing his position only once. These included cases involving environmental regulations, criminal procedure, the separation of powers and extraterritorial jurisdiction in human rights abuse cases. He has been regarded as a feeder judge.

Abortion

Kavanaugh ruled in favor of abortion restrictions in at least one case. In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could temporarily prevent an unaccompanied alien minor in its custody from traveling to obtain an abortion. Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh dissenting. The girl then obtained an abortion. In his dissent, Kavanaugh criticized the majority for creating "a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand". In Azar v. Garza (2018), the girl's claim was ultimately dismissed as moot after the en banc D.C. Circuit's judgment was vacated by the U.S. Supreme Court.

Affordable Care Act

In November 2011, Kavanaugh dissented when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case. In his dissent concerning jurisdiction, he compared the individual mandate to a tax. After a unanimous panel found that the ACA did not violate the Constitution's Origination Clause in Sissel v. United States Department of Health & Human Services (2014), Kavanaugh wrote a lengthy dissent from the denial of rehearing en banc. In May 2015, Kavanaugh dissented from a decision that denied an en banc rehearing of the Priests for Life v. HHS ruling in which the panel upheld the ACA's contraceptive mandate accommodations against Priests for Life's Religious Freedom Restoration Act claims. In Zubik v. Burwell (2016), the Supreme Court vacated the circuit's judgment in a per curiam decision.

Appointments Clause and separation of powers

In August 2008, Kavanaugh dissented when the circuit found that the Constitution's Appointments Clause did not prevent the Sarbanes–Oxley Act from creating a board whose members were not directly removable by the President. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Supreme Court reversed the circuit's judgment by a vote of 5–4.

In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design. In October 2016, Kavanaugh wrote for a divided panel finding that the CFPB's design was unconstitutional, and made the CFPB Director removable by the President of the United States. In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.

Environmental regulation

In 2013, Kavanaugh issued an extraordinary writ of mandamus requiring the Nuclear Regulatory Commission to process the license application of the Yucca Mountain nuclear waste repository, over the dissent of Judge Merrick Garland. In April 2014, Kavanaugh dissented when the court found that Labor Secretary Tom Perez could issue workplace safety citations against SeaWorld regarding the multiple killings of its workers by Tilikum the orca.

After Kavanaugh wrote for a divided panel striking down a Clean Air Act regulation, the Supreme Court reversed by a vote of 6–2 in EPA v. EME Homer City Generation, L.P. (2014). Kavanaugh dissented from the denial of rehearing en banc of a unanimous panel opinion upholding the agency's regulation of greenhouse gas emissions and a fractured Supreme Court reversed by a vote of 5–4 in Utility Air Regulatory Group v. Environmental Protection Agency (2014). After Judge Kavanaugh dissented from a per curiam decision allowing the agency to disregard cost–benefit analysis, the Supreme Court reversed by a vote of 5–4 in Michigan v. EPA (2015).

Extraterritorial jurisdiction

In Doe v. Exxon Mobil Corp. (2007), Kavanaugh dissented when the circuit court allowed a lawsuit making accusations of ExxonMobil human rights violations in Indonesia to proceed, arguing in his dissent that the claims were not justiciable. Kavanaugh dissented again when the circuit court later found that the corporation could be sued under the Alien Tort Statute of 1789.

First Amendment and free speech

Kavanaugh wrote for unanimous three-judge district courts when they held that the Bipartisan Campaign Reform Act could restrict soft money donations to political parties and could forbid campaign contributions by foreign citizens. Those judgments were both summarily affirmed on direct appeal by the Supreme Court.

In 2014, Kavanaugh concurred in the judgment when the en banc D.C. Circuit found that the Free Speech Clause did not forbid the government from requiring meatpackers to include a country of origin label on their products. In United States Telecom Ass'n v. FCC (2016), Kavanaugh dissented when the en banc circuit refused to rehear a rejected challenge to the net neutrality rule, writing, "Congress did not clearly authorize the FCC to issue the net neutrality rule".

Fourth Amendment and civil liberties

In November 2010, Kavanaugh dissented from the denial of rehearing en banc after the circuit found that attaching a Global Positioning System tracking device to a vehicle violated the Fourth Amendment to the United States Constitution. The circuit's judgment was then affirmed by the Supreme Court in United States v. Jones (2012). In February 2016, Kavanaugh dissented when the en banc circuit refused to rehear police officers' rejected claims of qualified immunity for arresting partygoers in a vacant house. In District of Columbia v. Wesby (2018), the Supreme Court unanimously reversed the circuit's judgment.

In Klayman v. Obama (2015), Kavanaugh concurred when the circuit court denied an en banc rehearing of its decision to vacate a district court order blocking the National Security Agency's warrantless bulk collection of telephony metadata. In his concurrence, Kavanaugh wrote that the metadata collection was not a search, and, even if it were, no reasonable suspicion would be required because of the government's special need to prevent terrorist attacks.

National security

In April 2009, Kavanaugh wrote a lengthy concurrence when the court found that detainees at the Guantanamo Bay detention camp had no right to advanced notice before being transferred to another country. In Kiyemba v. Obama (2010), the Supreme Court vacated that judgment while refusing to review the matter. In June 2010, Kavanaugh wrote a concurrence in judgment when the en banc D.C. Circuit found that the Al-Shifa pharmaceutical factory owners could not bring a defamation suit regarding the government's allegations that they were terrorists. In October 2012, he wrote for a unanimous court when it found that the Constitution's Ex Post Facto Clause made it unlawful for the government to prosecute Salim Hamdan under the Military Commissions Act of 2006 on charges of providing material support for terrorism.

In August 2010, Kavanaugh wrote a lengthy concurrence when the en banc circuit refused to rehear Ghaleb Nassar Al Bihani's rejected claims that the international law of war limits the Authorization for Use of Military Force Against Terrorists. In 2014, Kavanaugh concurred in the judgment when 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". In October 2016, Kavanaugh wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if his offenses are not internationally recognized as war crimes under the law of war.

In Meshal v. Higgenbotham (2016), Kavanaugh concurred when the divided panel threw out a claim by an American that he had been disappeared by the FBI in a Kenyan black site.

Second Amendment and gun ownership

In October 2011, Kavanaugh dissented when the circuit court found that a ban on the sale of semi-automatic rifles was permissible under the Second Amendment. This case followed the landmark Supreme Court ruling in District of Columbia v. Heller (2008).

Law clerk hiring practices and controversy

More than half of Kavanaugh's law clerks have been women (25 of 48) and more than a quarter have been people of color (13 of 48). A number of Kavanaugh's law clerks are the children of other judges and high profile legal figures, including Clayton Kozinski (son of former federal Judge Alex Kozinski), Porter Wilkinson (daughter of Judge J. Harvie Wilkinson III), Philip Alito (son of Justice Samuel Alito), Sophia Chua-Rubenfeld (daughter of Yale Law Professor Amy Chua), and Emily Chertoff (daughter of former DHS Secretary Michael Chertoff).

On September 20, 2018, The Guardian reported that two prominent Yale professors had advised female law students at Yale that their physical attractiveness and femininity could play a role in securing a clerkship with Kavanaugh. Amy Chua reportedly stated that female law students should exude a "model-like" femininity and "dress outgoing" in their job interview with Kavanaugh. Jed Rubenfeld reportedly stated that Kavanaugh "hires women with a certain look". In a statement to The Guardian in response to the report, Chua released a statement in which she denied the notion that Kavanaugh's hiring was impacted by the attractiveness of female clerks. She stated, "Judge Kavanaugh's first and only litmus test in hiring has been excellence." Yale Law School Dean Heather Gerken has stated that the allegations reported by the Guardian "are of enormous concern to me and the school", and Yale is currently investigating the allegations.

Nomination to the Supreme Court of the United States (2018)

Main article: Brett Kavanaugh Supreme Court nomination

Kavanaugh and his family with President Donald Trump in 2018

On July 2, 2018, Kavanaugh was one of four U.S. Court of Appeals judges to receive a personal 45-minute interview by President Donald Trump as a potential replacement for Justice Anthony Kennedy. On July 9, Trump nominated Kavanaugh for a seat on the Supreme Court.

Legal philosophy and approach

The Washington Post's statistical analysis estimated that the ideologies of most of Trump's announced candidates were "statistically indistinguishable" and placed Kavanaugh between Justices Neil Gorsuch and Samuel Alito. Brian Bennett writing for Time magazine in July 2018 reported that Trump and his advisors viewed Kavanaugh as "a stalwart originalist". Jonathan Turley of George Washington University has stated that among the judges considered by Trump, "Kavanaugh has the most robust view of presidential powers and immunities". Brian Bennett writing for TIME magazine cites Kavanaugh's 2009 Minnesota Law Review article as defending the privilege of the President to immunity from prosecution during tenure in office. In a 2017 speech at the American Enterprise Institute about former Chief Justice, William Rehnquist, he praised his opinions in Roe v. Wade and Furman v. Georgia, where Rehnquist dissented in rulings that overturned the ban against abortion and the statutes which supported the death penalty. An analysis covering the period 2003–2018 found that Kavanaugh had the most or second-most conservative voting record on the D.C. Court in every policy area.

During his hearing, he noted that he has repeatedly described the four greatest moments in Supreme Court history as being the cases Brown v. Board of Education, Marbury v. Madison, Youngstown Steel, and United States v. Nixon, with Brown being the single greatest.

According to the Judicial Common Space scores, a score based on the ideology scores of the home state senators and president who nominated the judge to the federal bench, Clarence Thomas is the only justice more conservative than Kavanaugh. According to this metric, Kavanaugh's confirmation would mean the composition of the court would shift to the right. Had Merrick Garland been confirmed, Stephen Breyer would have become the median swing vote when Justice Kennedy retired. However, since Scalia was replaced by another conservative (Gorsuch), it is expected that Chief Justice John Roberts will become the median swing vote on the Supreme Court if Kavanaugh is confirmed.

Senate Judiciary Committee public hearings

The Senate Judiciary Committee scheduled three or four days of public hearings on Kavanaugh's nomination, commencing on September 4, 2018. The hearings were at the onset delayed with objections from the Democratic members, concerning the absence of records during the nominee's time in the George W. Bush administration, prior to his service as a federal circuit court judge. The Democrats also complained that 42,000 pages of documents had been received at the 11th hour, the night before Day One of the hearings. Repeated statements from the Republicans included the assertion that the volume of documents available on this nominee equaled that of the previous 5 nominees for the court; the Democrats, whose opposition has been unanimously declared, responded with their repeated contention that only 15% of demanded documents about the nominee had been obtained. Numerous motions by the Democrats to adjourn or suspend the hearings were ruled to be out of order by Chairman Chuck Grassley, who argued that Judge Kavanaugh had written over 300 legal opinions available for review. The first day's session closed after statements from each senator and the nominee, with question and answer periods to begin the following day.

During the first round of questions from senators on September 5, 2018, Kavanaugh held to his earlier stated position that he would not express an opinion on matters which might come before the court. He thus refused to promise to recuse himself from any case, including any that might involve President Trump. He also declined to comment on coverage of prexisting healthcare conditions, semiautomatic rifle possession, the precedent of Roe v. Wade, or the President's power to issue a self-pardon. The nominee was given the opportunity, and expounded at length upon various Constitutional amendments, stare decisis, and the President's power to dismiss federal employees. As in the prior session, there were frequent outbursts of protest in the audience, requiring security intervention and removal, as well as repeated procedural objections from Democrats.

The Committee's third day of hearings began with furor over release of emails of Kavanaugh relating to a concern about potential racial profiling in security screenings. The day continued with Kavanaugh's attempts to articulate his jurisprudence, including refusing direct questions to opine on matters that he characterized as hypothetical. Senator Chris Coons had tendered Kavanaugh written questions about any knowledge of inappropriate behavior on the part of Judge Alex Kozinski, for whom he had clerked, including his circulations of sexually explicit emails via his "Easy Rider Gag List". Though Coons had asked him to review his emails from the judge, Kavanaugh's responses were vague, and did not address the senator's direct inquiry. A fourth day of hearings featured witnesses speaking in favor or opposed to his nomination.

The Committee released a 2003 email in which Kavanaugh said, "I am not sure that all legal scholars refer to [Roe v. Wade] as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so." Kavanaugh stressed that he was commenting on the views of legal scholars at the time, not his own views, and noted that the case had been reaffirmed on a number of occasions since the time of the statement. Sen. Susan Collins, a key but undeclared vote in the confirmation, indicated the statement did not contradict Kavanaugh's personal assurance to her that Roe is settled law. Kavanaugh noted that Planned Parenthood v. Casey (1992), which reaffirmed Roe v. Wade, was "precedent on precedent". According to Kavanaugh, Casey is a key decision about when the Court's precedent may be overturned.

On September 27, 2018, the Committee held an additional day of public hearings to discuss allegations that Kavanaugh engaged in sexual misconduct while in high school. The only witnesses were Kavanaugh and Christine Blasey Ford, who had accused him. Republican members of the committee did not question the witnesses directly; questioning on their behalf was was done by Rachel Mitchell, "a career prosecutor with decades of experience prosecuting sex crimes, [who] comes from the Maricopa County Attorney's Office in Phoenix, Arizona where she heads the Special Victims Division, which covers sex crimes and family violence", according to CBS News. Alternating with her questions, Democratic members of the committee questioned Ford and Kavanaugh themselves. In his opening statement, Kavanaugh claimed the accusations were a "political hit" by left-wing activists and Democrats, saying he faced retaliation by the "Clinton machine" for his work on the Starr Report against Bill Clinton.

At the conclusion of the hearing the Republican leadership of the committee indicated that they plan to hold a committee vote on the nomination the next day, September 28, with a procedural vote on the Senate floor on September 29.

File:Senate Judiciary Committee requests FBI investigation of Brett Kavanaugh sexual assault allegations.png

Senate Judiciary Committee requests FBI investigation of Brett Kavanaugh sexual assault allegations

Sarah Sanders @PressSec

Statement from President @realDonaldTrump: “I’ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh’s file. As the Senate has requested, this update must be limited in scope and completed in less than one week.”

Sep 28, 2018

The same day of hearing, the American Bar Association (which had endorsed Kavanaugh as well-qualified) requested the Senate Judiciary Committee to halt the confirmation vote for Kavanaugh's nomination, saying it should not move forward until an FBI investigation into the sexual assault allegations against him can be completed.

On September 28, the committee voted on party lines to advance the nomination to the full Senate; Senator Jeff Flake's vote in support was conditional on a proposal that the vote be delayed for a week to allow investigation of the current claims by the FBI. Later, Senators Joe Manchin and Lisa Murkowski also said they will not vote to confirm without an FBI investigation. On this request from the Judiciary Committee, Trump ordered a "supplemental investigation to update Judge Kavanaugh's file", to be limited in scope and completed within one week.

Sexual assault and attempted rape allegations

Christine Blasey Ford

See also: Christine Blasey Ford

Professor Christine Blasey Ford testimony

U.S. Senate Judiciary Committee Ranking Member Dianne Feinstein Calls for Postponement of Kavanaugh Nomination, FBI Investigation

On September 16, 2018, Christine Blasey Ford, a professor at Palo Alto University, said Kavanaugh had sexually assaulted her when she was 15 and he was a 17-year-old high school student. Specifically, Ford stated that in the early 1980s, Kavanaugh and Mark Judge, one of Kavanaugh's friends from Georgetown Prep School, corralled her in a bedroom at a house party in Maryland and turned up the music that was playing in the room. According to Ford, Kavanaugh pinned her to the bed, groped her, ground against her, tried to pull off her clothes, and covered her mouth with his hand when she tried to scream. Ford said she was afraid Kavanaugh "might inadvertently kill [her]" during the attack. Ford stated that she got away when Judge jumped on the bed, knocking them all to the floor. Ford's attorney, Debra Katz, stated that Ford considers the assault to have been an attempted rape.

Ford's statement came to light on September 13 when Senator Dianne Feinstein (D-California) acknowledged the existence of a complaint against Kavanaugh by a woman who had requested not to be identified. Feinstein stated that the woman accused Kavanaugh of trying to force himself on her while physically restraining her when they were both in high school. On the same day, Feinstein stated she had forwarded the allegation to federal authorities. Ford came forward publicly after Republicans criticized the fact that the statement had come from an unnamed person.

Kavanaugh issued the following statement through the White House: "I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time." Republicans criticized the decision to withhold "a vague, anonymous accusation for months" before releasing it on the "eve of [Kavanaugh's] confirmation" as an attempt to delay the Kavanaugh confirmation hearings. Kavanaugh later prepared a statement that insisted that due to the serious nature of the allegations, both he and Ford deserved to be heard.

The Washington Post reported that it reviewed a portion of the therapist's notes from a 2012 couples therapy session involving Ford and her husband that relate to the alleged event and its psychological effects upon her. The therapist's notes, parts of which were released on September 16, 2018, confirm that Ford stated that she was assaulted by four students "from an elitist boys' school" who eventually became "highly respected and high-ranking members of society in Washington"; the notes do not name Kavanaugh. Notes from another session a year later show that Ford had previously described a "rape attempt" while in high school. Ford also took a polygraph test, administered by a former FBI agent. The test concluded she was being truthful when she said a statement summarizing her allegations was accurate. In her testimony to the Senate Judiciary Committee, Ford said she could not remember whether she gave the therapist's notes to The Washington Post or merely summarized them for the reporter.

Kavanaugh letter to U.S. Senate Judiciary Chairman, after second allegation of sexual misconduct

The Senate Judiciary Committee released a letter on September 14, 2018 in which 65 women signatories who stated they had known Kavanaugh "for more than 35 years" asserted that during the time they had known him, Kavanaugh had "behaved honorably and treated women with respect". Twenty-four women who attended the Holton-Arms School along with Ford sent a letter to Congress expressing support for her. Over 1,000 alumnae of Holton-Arms School signed a letter stating that Ford's accusation was "all too consistent with stories we heard and lived" while attending the school; some of the alumnae delivered the letter personally to Senator Shelley Moore Capito, Republican from West Virginia, who is herself an alumna of the school.

The Senate Judiciary Committee invited both Kavanaugh and Ford to provide testimony about the allegation on September 24, 2018. Kavanaugh agreed to testify on September 24. Ford requested that the Federal Bureau of Investigation investigate the matter first, but Senate Judiciary Committee Chair Chuck Grassley declined the request, and gave Ford a deadline of September 21 to inform the Committee whether she intended to testify. Grassley added that Ford was welcome to appear before the Committee either privately or publicly. On September 20, Ford opened negotiations with the Committee to potentially reschedule the hearing. A bipartisan panel from the Judiciary Committee and Ford's representatives agreed to a hearing after September 24.

President Trump commented on the initial sexual assault allegation against Brett Kavanaugh for the first time on September 17, 2018, saying, "Judge Kavanaugh is one of the finest people that I've ever known. He's an outstanding intellect, an outstanding judge, respected by everybody. Never had even a little blemish on his record. The FBI has, I think, gone through a process six times with him over the years, where he went to higher and higher positions. He is somebody very special." On September 20, at a rally in Las Vegas, Trump again strongly endorsed Kavanaugh, stating, "Brett Kavanaugh is one of the finest human beings you will ever have the privilege of knowing or meeting." Trump also addressed the Democrats’ demand for an FBI probe by asking why the FBI was not notified of the alleged attack 36 years ago. Trump later responded on Twitter to Ford's claims, arguing that Ford would have informed law enforcement of the incident at the time if it had truly taken place. Trump wrote that Ford's statement was an "assault" made by "radical left wing politicians" intended to undermine his presidency.

Ford has stated that Leland Ingham Keyser, a lifelong friend, was present at the party where the alleged assault took place. On September 22, Keyser stated through her attorney that she did not know Kavanaugh and had no memory of any such party or sexual assault. The attorney did confirm that Keyser was a friend of Ford and Keyser reportedly told The Washington Post that she believed Ford's assertions. Multiple U.S. senators acquired copies of Mark Judge's books about his time at Georgetown Preparatory School, to prepare for questioning of Kavanaugh and Ford before the United States Senate Committee on the Judiciary.

In September 2018, Kavanaugh had the lowest Gallup polling for any potential justice since Robert Bork. Another poll on September 23-25 found that a majority of Republicans thought Kavanaugh should be confirmed even if the allegations of sexual assault were true.

Deborah Ramirez

Ronan Farrow and Jane Mayer of The New Yorker published a piece with an additional sexual assault allegation against Kavanaugh on September 23, 2018. Deborah Ramirez, who attended Yale University with Kavanaugh, alleged Kavanaugh exposed himself to her and thrust his penis against her face after they had both been drinking at a college party during the 1983–1984 academic year. Kavanaugh said, "This alleged event from 35 years ago did not happen". The New York Times interviewed several dozen of her classmates in an attempt to corroborate her story, and could find no one with firsthand knowledge. Ramirez had contacted some of her former classmates, and told some that she could not be certain Kavanaugh was the one who exposed himself.

Julie Swetnick

Michael Avenatti, the lawyer representing Stormy Daniels in her suit against Donald Trump, stated in a tweet on September 23, 2018, that he represented a woman who had "credible information" regarding Brett Kavanaugh and Mark Judge. Avenatti asserted that his client would be willing to testify before the Senate Judiciary Committee. On September 26, Avenatti revealed the woman to be Julie Swetnick, a former government employee, who declared in a sworn statement that she went to high school parties involving Judge and Kavanaugh and that it was common at such parties for boys to prey on girls, sometimes by spiking or drugging the drinks so that the girls could not resist. Kavanaugh has characterized her allegations as "ridiculous".

Teaching and scholarship

Since joining the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh taught full-term courses on Separation of Powers at Harvard Law School from 2008 to 2015, on the Supreme Court at Harvard Law School between 2014 and 2018, on National Security and Foreign Relations Law at Yale Law School in 2011, and on Constitutional Interpretation at Georgetown University Law Center in 2007. Kavanaugh has also been named the Samuel Williston Lecturer on Law at Harvard Law School since 2009. Kavanaugh was hired as a visiting professor by Elena Kagan, who was then the dean of Harvard Law School in 2008 and according to The Boston Globe, quickly became a student favorite professor who was generous with his time and accessible. He would often dine in Cambridge with students and offer references and career advice. Kavanaugh received high evaluations from his students, including J. D. Vance.

In 2009, Kavanaugh wrote an article for the Minnesota Law Review in which he argued that Congress should exempt U.S. presidents from civil lawsuits while in office because, among other things, such lawsuits could be "time-consuming and distracting" for the president and would thus "ill serve the public interest, especially in times of financial or national security crisis Kavanaugh argued that if a president "does something dastardly", that president may be impeached by the House of Representatives, convicted by the Senate, and criminally prosecuted after leaving office. He asserted that the U.S. would have been better off if President Clinton could have "focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots". This article garnered attention in 2018 when Kavanaugh was nominated to the Supreme Court by President Donald Trump, whose 2016 presidential campaign is the subject of an ongoing federal probe by Special Counsel Robert Mueller.

When reviewing a book on statutory interpretation by Second Circuit Chief Judge Robert Katzmann, Kavanaugh observed that judges often cannot agree on a statute if its text is ambiguous. To remedy this, Kavanaugh encouraged judges to first seek the "best reading" of the statute, through "interpreting the words of the statute" as well as the context of the statute as a whole, and only then apply other interpretive techniques that may justify an interpretation that differs from the "best meaning" such as constitutional avoidance, legislative history, and Chevron deference.

Personal life

Kavanaugh with his daughters

Kavanaugh had his first date with his future wife Ashley Estes, then personal secretary to President George W. Bush, on September 10, 2001. They were among the occupants of the White House evacuated during the September 11 attacks. In 2004, the two married and now have two daughters. Since early 2006, Kavanaugh and his wife have lived in Chevy Chase Section Five, Maryland.

Kavanaugh ran the Boston Marathon in 2010 and 2015.

Kavanaugh is a Catholic and serves as a lector at his Washington, D.C. church, the Shrine of the Most Blessed Sacrament. He has helped serve meals to the homeless as part of church programs, and has tutored at the Washington Jesuit Academy, a Catholic private school in the District of Columbia.

Kavanaugh's reported salary as a federal judge is $220,600 and $27,000 as a lecturer at Harvard Law School.

Publications

• Note, "Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings", 99 Yale Law Journal 187 (1989)
• "The President and the Independent Counsel", 86 The Georgetown Law Journal 2133 (1998)
• "First Let Congress Do Its Job; A Deep Structural Flaw in the Independent Counsel Statute", The Washington Post A27 (February 26, 1999)
• "We All Supported Kenneth Starr", The Washington Post A28 (July 1, 1999)
• "Letter to the Editor: Starr Report", The New York Times, (August 1, 1999)
• "Indictment of an Ex-President?" (with Robert J. Bittman), The Washington Post A12 (August 31, 1999)
• Are Hawaiians Indians? The Justice Department Thinks So., The Wall Street Journal A35 (September 27, 1999)
• "To Us, Starr Is an American Hero" (with Robert J. Bittman and Solomon J. Wisenberg), The Washington Post A23 (November 15, 1999)
• "Separation of Powers during the Forty-Fourth Presidency and Beyond", 93 Minnesota Law Review 1454 (2009), video of speech available at the Star Tribune
• "A Dialogue with Federal Judges on the Role of History in Interpretation", 80 The George Washington International Law Review 1889 (2012)
• "The Courts and the Administrative State", 64 Case Western Reserve Law Review 711 (2014), video of speech available at YouTube
• "Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution", 89 Notre Dame Law Review 1907 (2014)
• "Fixing Statutory Interpretation", 129 Harvard Law Review 2118 (2016)
• "The Judge as Umpire: Ten Principles", 65 Catholic University Law Review 683 (2016), video of speech available at YouTube
• Law of Judicial Precedent (St. Paul: Thomson Reuters, 2016) (one of 13 co-authors)
• "One Government, Three Branches, Five Controversies: Separation of Powers Under Presidents Bush and Obama", Marquette Lawyer Magazine, Fall 2016
• "Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exception", 92 Notre Dame Law Review 1907 (2017)
• "From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist", American Enterprise Institute (2017), video of speech available at YouTube
• "Congress and the President in Wartime", Lawfare (blog) November 28, 2017 (book review)

See also

• Donald Trump Supreme Court candidates
• George W. Bush Supreme Court candidates
• List of law clerks of the Supreme Court of the United States

Further reading

• United States Senate Committee on the Judiciary, "Conformation (sic) Hearing on the Nomination of Brett M. Kavanaugh to be Circuit Judge for the District of Columbia Circuit: Hearing", 108th Cong., 2nd Sess. April 27, 2004. Washington: U.S. GPO, 2006. iii, 159 p. ; 24 cm. Serial No. J-108-69. S.Hrg. 108–878
• ———, "Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit: Hearing", 109th Cong., 2nd Sess. May 9, 2006. Washington: U.S. GPO, 2006. iii, 103 p. ; 24 cm. Serial No. J-109-73. S.Hrg. 109–435
• ———, "Questionnaire for the Nominee to the Supreme Court of Brett Michael Kavanaugh", 115th Cong., 2nd Sess. July 2018
• Congressional Research Service Report R45269, "Judicial Opinions of Judge Brett M. Kavanaugh", Coordinated by Michael John Garcia (2018)
• Congressional Research Service Report R45293, "Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court", Coordinated by Andrew Nolan and Caitlain Devereaux Lewis (2018)

External links

• Brett Kavanaugh at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
• Appearances on C-SPAN
• Selected Resources on Brett M. Kavanaugh from the Law Library of Congress
• Biography from the Bush White House
• Resumé from the Justice Department's Office of Legal Policy
• Contributor profile from the Federalist Society
• Brett Kavanaugh Attorney Work Files for Independent Counsel Kenneth W. Starr from the National Archives and Records Administration
• Records on Brett M. Kavanaugh from the George W. Bush Presidential Center
• Nomination documents from the United States Senate Committee on the Judiciary
• "Judge Brett Kavanaugh & Professor Christine Blasey Ford Testify". C-SPAN. Retrieved September 27, 2018.