Brett Kavanaugh, the consummate Washington insider picked by President Donald Trump on Monday for a lifetime seat on the U.S. Supreme Court, has viewed business regulations with skepticism in his 12 years as a judge and taken conservative positions on some divisive social issues.
His extensive record on the bench and in prior Washington jobs means the 53-year-old conservative federal appeals court judge promises to attract a barrage of questions during what is likely to be a contentious U.S. Senate confirmation process.
A senior White House aide under Republican former President George W. Bush who previously worked for Kenneth Starr, the independent counsel who investigated Democratic former President Bill Clinton in the 1990s, Kavanaugh faced a long confirmation battle when Bush nominated him to his current post in 2003. Democrats painted him as too partisan, but he ultimately was confirmed by the Senate three years later.
Kavanaugh grew up in Bethesda, a Maryland suburb of Washington, and attended the same high school as Trump’s first Supreme Court appointee, Neil Gorsuch. Both men served as clerks for Kennedy in the Supreme Court’s 1993-1994 term.
Kavanaugh has been a judge on the influential U.S. Court of Appeals for the District of Columbia Circuit since 2006. Merrick Garland, Democratic former President Barack Obama’s Supreme Court nominee who was blocked by Senate Republicans in 2016 in a move that allowed Trump to nominate Gorsuch last year, serves on that court alongside Kavanaugh.
Kavanaugh has come under fire in some conservative circles for his ties to Bush, a member of the Republican establishment that is eschewed by Trump, as well as for not sometimes ruling aggressively enough on issues of importance to conservative activists.
Some conservatives have faulted his reasoning in a dissenting opinion in a case involving Democratic former President Barack Obama’s 2010 healthcare law, dubbed Obamacare.
Kavanaugh dissented from his court’s 2011 conclusion that Obamacare, a law detested by conservatives, did not violate the U.S. Constitution, asserting that it was premature to decide the case’s merits. Kavanaugh in his dissent mentioned that a financial penalty levied under Obamacare on Americans who opted not to obtain health insurance might be considered a tax, a pivotal distinction in the conservative legal challenge to the law.
Conservative critics said Kavanaugh’s dissent provided the roadmap that helped persuade U.S. Chief Justice John Roberts to cast a crucial vote in upholding the law when it reached the Supreme Court in 2012.
In his remarks on Monday, Kavanaugh sought to spotlight his bipartisan credentials. He noted that he has taught at Harvard Law School, where he was hired by former dean Elena Kagan, who Obama appointed to the Supreme Court in 2010. “My law clerks come from diverse background and points of views,” Kavanaugh said, adding that a majority of his clerks have been women.
Kavanaugh has shown conservative credentials on gun rights and in abortion-related cases.
Last October, he was part of a panel of judges that issued an order preventing a 17-year-old illegal immigrant detained in Texas by U.S. authorities from immediately obtaining an abortion. That decision was overturned by the full appeals court and she had the abortion.
Kavanaugh, who emphasized his Roman Catholic faith in his appearance with Trump at the White House on Monday, said in a dissent that the full court was embracing “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
Kavanaugh also dissented in 2015 when the court spurned religious groups that sought an exemption from a requirement under Obamacare that employers provide health insurance that covers birth control for women.
In 2011, he dissented as the court upheld a District of Columbia gun law that banned semi-automatic rifles. Kavanaugh said such guns are covered by the U.S. Constitution’s Second Amendment, which protects the right to bear arms.
In several cases, Kavanaugh faulted environmental regulations issued under Obama, including some aimed at combating climate change.
Kavanaugh dissented in 2017 when his appeals court declined to reconsider its decision upholding “net neutrality” regulations implemented under Obama – and later rescinded under Trump – requiring internet providers to guarantee equal access to all web content.
In 2016, Kavanaugh wrote the appeals court’s decision that the structure of the Consumer Financial Protection Bureau, formed under Obama, was unconstitutional.
Kavanaugh worked for Bush during the contentious recount in the pivotal state of Florida in the 2000 presidential election, then headed the Bush administration’s search for potential judicial nominees.
He previously worked for four years for Starr, whose investigation of Clinton helped spur an effort by congressional Republicans in 1998 and 1999 to impeach the Democratic president and remove him from office.
In 2009, Kavanaugh wrote a law review article questioning the value of that investigation and concluding that presidents should be free from the distractions of civil lawsuits, criminal prosecutions and investigations while in office.
That view has assumed fresh relevance, with Trump facing several civil lawsuits as well as a Russia-related criminal investigation by Special Counsel Robert Mueller. The Supreme Court could be called upon to weigh in on these matters.
A graduate of Yale Law School, Kavanaugh is married and has two children.
Reporting by Lawrence Hurley; Additional reporting by Andrew Chung; Editing by Kevin Drawbaugh and Will Dunham
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