The Kavanaugh Supreme Court Nomination


On July 9, 2018, President Donald J. Trump nominated federal judge Brett Kavanaugh, 53, of the the US Court of Appeals for the DC Circuit to the US Supreme Court. Given the likely impact that his confirmation would have on the ideological composition of the Supreme Court (see image below), the confirmation process is likely to be contentious.

What does Kavanaugh’s prior history on the bench tell us about his particular philosophy of constitutional and statutory interpretation (note: refer to Lecture 6.5 for more on these interpretive philosophies). What kind of justice is Kavanaugh likely to be? How might his addition to the court impact how the Supreme Court rules on significant issues?

INSTRUCTIONS: Respond to the prompt in the comments section of this entry. The strongest responses will draw directly from at least one specifically cited external source to inform their comments. Refer to the class syllabus for more on how blog entries are evaluated. Each student must draw from unique sources that another student has not yet cited, so there is a ‘first mover’ advantage in responding to this question in a timely fashion.

8 Replies to “The Kavanaugh Supreme Court Nomination”

  1. Kavanaugh’s is a conservative so with regards to his prior history on the bench we can tell that his philosophy of constitutional and statutory interpretations would be originalism. In his nominee speech he clearly states “My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.” -The Washington Post. The basis of originalism is the constitution should be interpreted with the accordance it its original meaning. In the case of an undocumented pregnant teen, in custody of the US, who wanted an abortion, he dissented that the teen had no constitutional rights to an abortion. This backs up the conservative view. His addition to the supreme court would put conservatives ahead, 5-4. On the conservative scale, Kavanaugh is almost considered the mot conservative, with only Justice Thomas ahead of him. With that being said, some people fear that this will give the opportunity for the Roe V. Wade decision to be overturned. In his confirmation hearing in 2006, he stated, “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It’s been decided by the Supreme Court.” Later in 2016 at an American Enterprise Institute event he stated, “I think justices of all stripes agree that stare decisis is important, but not an inextricable command. It’s not inflexible, it’s not absolute.” – NCBNEWS The two statements contradict each other, so it seems rather difficult to guess how he will vote if appointed to the SC, but over all, with significant issues, the Supreme Court will be ruling significantly more conservative and it may seem like we are going backwards in history rather than moving forward.

  2. Judge Brett Kavanaugh will most likely become the next supreme court judge because of the majority Republicans in the senate. As we see in the picture presented to us, Kavanaugh is a heavy Republican and will swing the votes of the court in favor of the Republicans. Through my research on Judge Kavanaugh and his past opinions I found that he uses the originalism approach for his rulings for the following reasons. In his recent case dealing with the abortion of an illegal immigrant, Kavanaugh said that the constitution protects the right for a woman to have an abortion. He also said the government invented a new law saying ” a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand”(CBS News). He clearly sides with the exact wording of the constitution, and does not budge for recent scenarios. This is clearly originalism, which recent Judge Antonin Scalia, a republican, was also an originalist. Having Kavanaugh voting this way it will be much harder for cases to be passed when their cases are not as clear, or vary a little bit because of the changing times since the constitution was written.

    Another case that he ruled as an originalist was Heller v. District of Columbia. In this case Kavanaugh ruled that the second amendment protected the right to own semi-automatic rifles. In recent times, the numerous shootings that have happened in the country many have called for stricter gun laws. But, Kavanaugh interprets the constitution as what it says, which is why he rules in favor of letting citizens own semi-automatic rifles.

    This will impact the court in a serious way because retiring judge Anthony Kennedy was usually a swing vote in many of the cases. But now that he is gone Kavanaugh will most likely be ruling in a orginalist/conservative manner most of the time. This will give republicans a heavy advantage for the years to come until the next judge leaves. Also, being an originalist he will not let the changing times change his opinion of the constitution, which will impact the rulings of every case that comes to the most powerful court in the United States.

  3. President Trump recently nominated Brett Kavanaugh as the next Supreme Court Justice. As expected, a republican president would nominate a candidate who falls on the same political spectrum as himself. By nominating Kavanaugh, the ideological composition of the Supreme Court would fall to a 5-seat conservative bench and to a 4-seat liberal bench. Kavanaugh’s seat would be far right on the conservative side. Retiring Justice Kennedy was seated towards the middle of the political spectrum, often times being a swing vote in certain cases. To put this into prospective, let us compare Justice Kennedy’s philosophical interpretations of the Constitutions in Supreme Court cases to Kavanaugh’s beliefs in cases heard in the US Court of Appeals for the DC Circuit.
    Justice Kennedy is a conservative but sat in the middle of the political spectrum in the Supreme Court. He was a “living constitutionalist,” meaning he viewed the Constitution as a living document that evolved over time, just as society does. By holding this philosophy, Justice Kennedy would jump from the liberal side to the conservative side of the spectrum in certain cases, especially ones regarding individual rights. One of his most famous swing vote cases would be Obergefell v. Hodges, where his vote helped guarantee the right for same-sex couples to legally marry. In the majority opinion, he wrote, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity devotion sacrifice, and family . . . [These petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
    Judge Kavanaugh would support the “originalist” ideology, meaning that the Constitution should only be viewed currently as it was at the time it was enacted. One case in the US Court of Appeals for the DC Circuit that exemplifies his ideology would be Klayman v. Obama. This case surrounded the legality of the government obtaining information on an American citizen without a warrant through collecting telephony metadata. Kavanaugh sided with the government in this case, stating that, “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” He went on to add that this action by the government does not violate the 4th Amendment due to the “third party doctrine.”
    We can conclude that if Judge Kavanaugh does take Justice Kennedy’s seat in the Supreme Court that the Court will result in more conservative ideologies. Considering that Kavanaugh is so far right, it is more likely than not that there won’t be any swing votes for liberal-based cases that come to the Court. There is still a chance Kavanaugh won’t be voted in by Senate. Republican Rand Paul stated that he is “concerned” with Kavanaugh being a Justice due to his views on the 4th Amendment. Paul argues that “…if we give up our liberty for security, we may end up with what Franklin said, and that’s neither — neither liberty nor security.” Senator Paul expressed that no American believes that when using their phone or debit card that they are voluntarily giving up their right to privacy, and that Kavanaugh’s view of the case is “horribly wrong.” Considering John McCain’s absence in Senate, there is a 51-49 Republican controlled margin, meaning each vote for the next Justice to be a pivotal one. So, if you are concerned with Kavanaugh being the next Justice, you are not the only one; most of Senate is also uneasy. We have seen in history that Senate doesn’t always vote the President’s choice into the Court, so this may turn out to be the case as well.

  4. There is no contesting the fact the Judge Brett Kavanaugh is a highly qualified candidate for the Supreme Court. He worked under Ken Starr for a year, who was Solicitor General of the United States from 1989 to 1993. After this he went on to clerk for the main he will potentially replace Associate Justice Anthony Kennedy. Following the completion of his clerkship for Kennedy he went to work for Ken Starr again in the Office of the Special Counsel. The purpose for this specific Special Counsel was the investigation of events that occurred during the Presidency of Bill Clinton. Kavanaugh even co-authored the Starr Report which ultimately led to the impeachment trial of President Clinton. Kavanaugh’s next governmental job was as an associate in the Office of Counsel for the Bush administration and following that was nominated and appointed to the D.C. Circuit Court of Appeals. It is clear where Judge Kavanaugh falls on the political spectrum. He is considered to be farther right than Kennedy and it would swing the court to the conservative side by 5-4. While this could be particularly troubling for a large portion of America the most concerning part of his resume for me is his opinion on the separation of powers within the government. This opinion has been displayed in the case of Free Enterprise Fund v. Public Company Accounting Oversight Board and an article Kavanaugh wrote in the Minnesota Law Review.
    The case of Free Enterprise Fund v. Public Company Accounting Oversight Board in 2008 deals with its potential violation of the Appointments Clause by the Sarbanes–Oxley Act of 2002. The act established the Public Company Accounting Oversight Board whose members were appointed by the SEC and not the President. While on the D.C. Circuit Court of Appeals Kavanaugh was one of the judges that resided over this case. The Court of Appeals found that it did not violate the Appointments Clause as a result of this decision Kavanaugh dissented. Kavanaugh believed “The PCAOB would be flatly unconstitutional because the statute restricts the President’s power to remove PCAOB members at will and thereby to direct and supervise the exercise of executive power and take care that the laws are faithfully executed.” (1. Kavanaugh Dissent, Free Enterprise Fund v. PCAOB). The case ultimately went on to the Supreme Court where it was decided that the act satisfied the appointment clause but at the same time violated Article II of the Constitution by depriving the President of the power to remove and appoint members of the board (2. Free Enterprise Fund v. PCAOB,
    The title of the article is Separation of Powers During the Forty-Fourth Presidency and Beyond. The article was written in the aftermath of the Obama and McCain presidential race and focuses on the issues that arise from the separation of powers that exist within the government. During the presidential race the Washington was often referred to as broken by both sides of the political spectrum. Kavanaugh attributes this to the separation of powers he claims, “Many of those broken structures and systems implicate the separation of powers—and particularly, the interaction of the legislative and executive branches in performing their respective and sometimes overlapping functions under the Constitution.” (3. pg. 1455). The separation of powers established in the Constitution has no doubt caused some issues in recent years. Kavanaugh specifically refers to events that occurred during both Clinton and Bush’s administrations. Some examples provided are the issue of war powers in regards to the Clinton administration’s authorization of using military force in Kosovo during the Kosovo War and whether it adhered to the War Powers Act of 1973. Kavanaugh also referred to the issues that arose from the detention of enemy combatants at Guantanamo Bay Naval Station during the beginning of the War on Terror.
    Both of these examples dealt with whether the President had the power to do what he did. Kavanaugh multiple changes he would make but I am going to focus on his first and potentially most interesting. He claims that the President should be provided “…with a temporary deferral of civil suits and of criminal prosecutions and investigations,” (3. pg. 1459) this would have significant ramifications when it comes the accountability of the President and it would also reduce the effectiveness of the checks and balances system of the U.S. Government. Kavanaugh claims that it would not do this because it is only temporary, but if the President potentially committed a crime while in the first year of his term it could be difficult to convict him at a later date. He also claims the threat of impeachment still exist but how could the President be impeached without an investigation? I find this opinion interesting due to the fact that Kavanaugh was a major part of the Starr Report which led the Impeachment Trial of President Clinton. Kavanaugh attributes his change of heart to his time spent working for the Bush administration and seeing first-hand how difficult it is being the President and how the job becomes even more difficult when burdened by investigations. His interpretation of the separation of powers is incredibly relevant when it comes to his nomination due to the fact that the President nominating him his currently embroiled in an investigation by a Special Counsel in regard to Russia and the 2016 election.
    Despite this opinion on the separation of powers Kavanaugh would be considered somewhere in between an originalist and living constitutionalist in regard to his interpretation of the Constitution. In his dissent from the case of Free Enterprise Fund v. PCAOB Kavanaugh claims “If the removal issue in this case were decided based on the constitutional text, the prevailing understanding of that text at the time of drafting and ratification and during the First Congress, the historical practice and common understanding of that text during the first 146 years of our constitutional Government, and the leading Supreme Court decisions in Myers and Parsons, we would face an easy decision.” (1. Kavanaugh Dissent, Free Enterprise Fund v. PCAOB). In this statement Kavanaugh states that the constitution should not only be interpreted as it was first written but also as it has been interpreted throughout the history of the United States.
    Ultimately Brett Kavanaugh has all of the accolades and requirements to be a Supreme Court Justice. Kavanaugh clearly falls on the conservative side of the political spectrum. His nomination and acceptance would potentially create a conservative majority within the Supreme Court without the possibility of a swing vote. Which would put us even farther from having an apolitical Supreme Court.

    1). Kavanaugh Dissent, Free Enterprise Fund v PCAOB,

    2.) SCOTUS Case, Free Enterprise Fund v PCAOB,

    3.) Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, Minnesota Law Review,

  5. Firstly, there should be a fight against Trump\’s Supreme Court selection, especially Kavanaugh. In addition, this debate should wake up Americans (and inflate voting for the next generation) by advocating and educating on why voting counts and the importance of the Supreme Court. In this analysis, I will interpret my stance on how corrupted Trump and his minions are, and how their pessimistic inclinations will/are affecting millions.
    When I first heard Brett Kavanaugh’s first claim as a Supreme Court nominee, I was slightly baffled by this comment;
    “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination” – (Brett Kavanaugh, 2018).
    As a Judge it’s more than a little disquieting that one of the first things to come from his mouth was obviously and verifiably an untrue lie (Johnson, 2018). Yet, shortly I was unaffected because he is a proud representative of Trump’s.
    As Justice Anthony Kennedy retirement rapidly approaches, his spot is highly being debated upon Judge Brett Kavanaugh, who is an “orthodox conservative who is unlikely to break with Roberts on questions of racial justice (Millhiser, 2018). According to Millhiser (2018), that means that the Voting Rights Act, as amended by the law President Reagan signed in 1982, is likely to be on the chopping block very soon; in addition to Mobile v. Bolden which is likely to be the law again very, very soon.” In accordance with Millhiser, Roeder and Thomson-DeVeaux (2018) reported in the days after he (Kavanaugh) was announced, court-watchers mined Kavanaugh’s old opinions and emerged with conflicting accounts of his ideology. His abortion rulings are simultaneously too liberal and too conservative. In one term, he was the only justice in both 5-to-4 majorities when he (and conservatives) removed a crucial part of the Voting Rights Act and when he (and liberals) overturned the federal Defense of Marriage Act, which denied recognition of same-sex marriages (Barnes and Marimow, 2018).He’s both opposed to and supportive of the Affordable Care Act. He’s most similar to Chief Justice John Roberts and most similar to Justice Clarence Thomas (Roeder and Thomson-DeVeaux, 2018).” In accordance to Millhiser (2018), Roberts should be recalled for interpreting that America was no longer racist enough to justify the “extraordinary measures” employed by a fully operational Voting Rights Act. Racial discrimination in voting is no longer as blatant or systemic as it was in 1965. But the idea that the American fixation on race and power had magically evaporated in just a few decades was, at best, strikingly naïve (NYTimes, 2018).
    All in all, representatives of Trump’s are not for the people, but themselves. Having Kavanaugh in office will only cause ruination for America, along with his promotion of allowing the president immunity and “untouchable by prosecutors.” Nevertheless, Salvador Rizza (2018) mentions a statement from Kavanaugh, arguing that the president should have more authority over some independent agencies; that “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”; that the president should defer to Congress on some issues involving war, and that it’s worth considering a switch to a single, six-year term for presidents instead of a four-year term with the possibility of reelection.”
    Do we really need someone like Kavanaugh to help boost Trump’s derangement?

    Barnes, R., & Marimow, A. E. (2018, July 15). On abortion and other issues, Kavanaugh\’s heroes are more conservative than Kennedy. Retrieved from

    Johnson, H. (2018, July 17). Senate should not move forward with the ill-considered nomination of Brett Kavanaugh. Retrieved from

    Millhiser, I. (2018, July 16). If Kavanaugh is confirmed, you can kiss the right to vote goodbye. Retrieved
    Millhiser, I. (2018, March 20). The Chief Justice of the United States has no clue how elections work. Retrieved from

    Rizzo, S. (2018, July 11). Analysis | Does Brett Kavanaugh think the president is immune from criminal
    charges? Retrieved from

    Roeder, O., & Thomson-DeVeaux, A. (2018, July 17). How Conservative Is Brett Kavanaugh? Retrieved from

    T. (2018, April 03). What the Supreme Court Doesn\’t Get About Racism. Retrieved from

  6. As Donald Trump announced his Supreme Court nominee, not too many were surprised to hear that Brett Kavanaugh was the President’s choice to replace Justice Anthony Kennedy. Brett Kavanaugh is a federal appellate judge, who sided with arguments in favor of broad executive authority throughout his 12 years on the bench in Washington, DC. His record so far suggests that he would be more to the right than Justice Kennedy (whom he would replace) and has a more conservative position on issues regarding gun rights, abortion, and separation of power. Kavanaugh worked closely with George W. Bush as his close aide, White House Council and staff secretary – during this time he came to the conclusion that “the job of president is far more difficult than any other civilian position in government.” (USA Today)

    Justice Anthony Kennedy was the Supreme Court Justice responsible for writing the majority in important rulings made by the Supreme Court throughout the years, such as coauthoring the opinion of the court in Planned Parenthood v. Casey, to uphold Roe v. Wade, writing the majority opinion for the 5-4 ruling in Roper v. Simmons (stating that executing killers who were under the age of 18 is unconstitutional), writing the majority opinion in Boumediene v. Bush granting Guantanamo Bay prison detainees the right to seek habeas corpus, and writing the majority opinion in Obergefell v. Hodges, legalizing same-sex marriage in all 50 states. Kennedy was a critical swing vote on the court, a center-right figure who leaned conservative on some issues regarding the First Amendment and pro-business cases and tended to lean left on other cases, like those concerning LGBTQ and reproductive rights. Kennedy was described as a “living constiutionalist”, which means that he saw the Constitution as a living document that evolved with society. (VOX, CNN)

    Brett Kavanaugh, on the other side, is described as a constitutional originalist, hence his previous standings and opinions on issues from abortion and gun rights to disputes over business regulations and national security policies. He tends to favor corporations over regulators, and the government over individuals who claim rights violations. He is typically conservative. Some of the most notable cases he addressed came from disputes over the scope and limits of the power of the federal government. In hundreds of opinions and dissents at the powerful appeals court, Kavanaugh has backed the president’s national security powers and has defended the use of military tribunals for terrorism suspects. 

    To emphasize the difference between Justice Kennedy and Judge Kavanaugh, one can look at cases such as those brought by Guantanamo Bay detainees where Kavanaugh sided with the government in habeas corpus cases, interpreting that the military had the power to hold people in wartime detention even when the suspected ties to terrorism were weak.
    An important case that Judge Kavanaugh dissented on was the case of a 17-year-old undocumented pregnant girl in immigration detention who was seeking abortion without delay. The Trump administration wanted her transferred to an adult sponsor for guidance, but Kavanaugh wrote that while the appeals court was bound to obey Supreme Court rulings that said that “the Constitution protects a woman’s right to seek abortion, those precedents left room for the government to apply “reasonable regulations that do not impose an undue burden.” (The New York Times) Kavanaugh accused the majority of “inventing a new right for unlawful immigrant minors to obtain immediate abortion on demand.” Kavanaugh was overruled by the full court and stated in his dissent that it was “not an undue burden” for the government to try to quickly transfer the teen to a sponsor, pointing to past rulings that allow the government to take positions “favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion” and to other restrictions on abortion that impose delays such as waiting periods and parental notification.
    The majority of his D.C. Circuit colleagues disagreed and in a 6-to-3 ruling, the case went back to a lower- court judge who ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider. (The Washington Post)

    Although the job of a Supreme Court justice is to interpret the constitution and not be biased or project their own opinion on matters brought to the court, many fear that Brett Kavanaugh replacing Justice Anthony Kennedy will make the Supreme Court more conservative than it already is and make changes such as overturning Roe v. Wade and leaving the power of banning abortions to the states, reject challenges to capital punishment, and maybe even reverse past Supreme Court rulings on gay rights.

  7. The addition of extremely conservative Judge Brett Kavanaugh, would directly impact how the Supreme Court rules as it moves the entire body to the right as he replaces the more unpredictable Justice Kennedy.

    Judge Kavanaugh’s prior history on the bench confirms his originalistic approach regarding his philosophy of constitutional and statutory interpretation, meaning he believes the constitution should be interpreted the exact way the original framers intended. Judge Kavanaugh described his approach on the bench in 14 words according to TIMES, “A judge must be independent and must interpret the law, not make the law.”
    To find a clear example of Judge Kavanaugh’s deep originalistic ideas, we need to look no further than his support of semiautomatic rifles and high-capacity magazines, commonly used in gangs and mass shootings. Even though Judge Kavanaugh acknowledges the issue of violence of these military style weapons, he is complicent and unwilling to deviate from his interpretation of the Second Amendment for the safety of Americans. In 2011, Judge Kavanaugh disagreed with the decision to ban these weapons from D.C., stating “I am acutely aware of the gun, drug, and gang violence that has plagued all of us,” Kavanaugh wrote. “But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.” (TIMES)

    When we look at Judge Kavanaugh’s history on Women’s issues, it is evident to see he is ultra-conservative and will predictably rule that way on cases brought before him as a Justice. We can look at his dissent in 2015, as a precursor of how this Judge would rule on access to contraceptives. The Affordable Care Act required that if religious organizations were not going to provide or pay for birth control, the organization would be required to fill out a form. In 2015, Judge Kavanaugh dissented on the belief that the mere filling out the form was a violation of religious-freedom rights for the employer, ultimately taking a strong stand against women’s right to birth control.

    Judge Kavanaugh is likely to be the kind of Justice that will roll back the progress made in women’s rights, voting rights, civil rights, LGBTQ rights, and gun control to help the President “Make America Great Again,” to a time where women and minorities were not equal.With the nomination and almost certain confirmation of Judge Kavanaugh, it is more important than ever to employ our civic duty to act. Women, workers, and minorities will no longer be able to seek relief in the Supreme Court for their civil rights issues as we did in the past and must pursue other options such as looking to Congress for laws to get passed to protect our citizens. As we learned in lesson one of the course, it must start with us the citizens getting off of the couch and showing up in November to vote in the midterm election to elect the right individuals that have the spine to do the job of representing the American people.

  8. The selection of Brett Kavanaugh for Supreme Court Justice by President Donald Trump is one that should be of no surprise. The conservative-minded Kavanaugh can be expected to alter thee SCOTUS to now becoming more conservative-minded in its decision rulings with the count predicted to be 5-4 in the conservative vs liberal ideologies.

    Because of his lengthy resume which includes serving on the second-most powerful court in the nation, over a decade of experience as a federal appeals judge, and having worked at the side of a two-term president in President George W. Bush, it would be no surprise that Kavanaugh makes his presence known almost immediately. Some could say that he will be the most qualified Supreme Justice out of all of the present justices. For this reason, he will most likely not stray away from his conservative-ruling trends.

    It’s been seen in the past that Kavanaugh shares great differences from our past Democrat leaders. Having combated many of President Barack Obama’s plans such as the “Affordable Care Act” and the “clean power” plan to prevent global warming, I expect him to follow suit and be the extreme Conservative justice that President Trump desires for him to be.

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