JUDGE KAVANAUGH IS AN EXTRAORDINARILY QUALIFIED NOMINEE, CONSISTENTLY AMONG THE BEST OF THE BEST IN THE LAW.
- Judge Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit for twelve years. That court is widely considered the second-most important court in the nation; three current justices also served there.
- Judge Kavanaugh has written opinions in nearly 300 cases dealing with some of the most complicated issues arising in the federal courts. The Supreme Court has endorsed his positions in high-stakes issues at unparalleled rate; thirteen Supreme Court decisions have endorsed positions advocated in his opinions.
- Edith Roberts of Scotusblog describes him as “bring[ing] a pragmatic approach to judging . . . his judicial philosophy is conservative, and he has applied principles of textualism and originalism espoused by the late Justice Antonin Scalia.”
- Judge Kavanaugh has extensive experience in the executive branch, working in President George W. Bush’s administration as Associate Counsel and Senior Associate Counsel to the President, as well as Assistant to the President and Staff Secretary to the President.
- Judge Kavanaugh served in Ken Starr’s Office of Independent Counsel during the Clinton Administration.
- Judge Kavanaugh and Justice Gorsuch clerked together for Justice Kennedy.
JUDGE KAVANAUGH IS INDEPENDENT AND WILL BASE HIS DECISIONS ON THE LAW AND THE CONSTITUTION.
- In case after case, Judge Kavanaugh has consistently demonstrated his belief that judges should base their decisions on laws and the Constitution; he does not let his own policy preferences or personal feelings affect his decisions.
- Judge Kavanaugh understands that power under our Constitution ultimately rests with the American people, and that it is the structure of our Constitution that protects our liberties. That fundamental understanding puts him firmly in the mainstream of American legal thought.
JUDGE KAVANAUGH IS DEVOTED TO HIS FAMILY AND COMMUNITY.
- Judge Kavanaugh is the son of Edward and Martha Kavanaugh. The judiciary is in his DNA: his mother was a Maryland state court judge.
- He played basketball in high school and college and now coaches Catholic Youth Organization basketball teams.
- He has been married to his wife, Ashley, for 14 years; they have two daughters.
JUDGE KAVANAUGH DESERVES BIPARTISAN SUPPORT IN THE SENATE.
- Like Justice Gorsuch, Judge Kavanaugh is a person of impeccable character, extraordinary qualifications, independence, and fairness. He received bipartisan support in the Senate in his last confirmation and deserves no less now. Judge Kavanaugh would make another great justice.
- Exit polls showed that the Supreme Court was the top issue for one in five voters in the 2016 election, and 57% of that group voted for President Trump. Now it is time for the Senate to give Judge Kavanaugh a full and fair hearing and to confirm him so that the Court is at full capacity before it reconvenes in early October.
HONORING THE CONSTITUTION: TEXTUALISM AND ORIGINALISM
Judge Kavanaugh recognizes that the role and responsibility of a judge is to follow the Constitution and not to make or remake the law:
The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures.” 2016 Lecture in Honor of Justice Scalia at the Antonin Scalia Law School at George Mason University.
Judge Kavanaugh has said that judges “must strive to be consistent in how we’re deciding cases, how we’re confronting issues, whether it be constitutional interpretation or statutory interpretation—consistency is a great virtue.” The Judge As Umpire: Ten Principles, Catholic University Law Review.
In Judge Kavanaugh’s view, the decisions of judges must not seem arbitrary or based on personal preferences:
I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary 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.” 2017 Keynote Address at Notre Dame Law School.
CONSTITUTIONAL SEPARATION OF POWERS
Judge Kavanaugh believes in enforcing the separation of powers between our three branches of government, and in preserving the President’s authority over the Executive Branch bureaucracy.
He has emphasized that insulating administrative agencies from Presidential control violates the separation of powers. In Free Enterprise Fund v. Public Company Accounting Oversight Board, he wrote a dissenting opinion arguing that provisions of the Sarbanes-Oxley Act making the Public Company Accounting Oversight Board’s members removable only for cause created “unaccountable power” that is “inconsistent with individual liberty.” The Supreme Court ultimately agreed, in a 5-4 opinion written by Chief Justice Roberts.
- Judge Kavanaugh explained that “constitutional text and the original understanding” are “essential to proper interpretation of our enduring Constitution,” and he wrote that “by restricting the President’s authority over the Board, the Act renders this Executive Branch agency unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure.”
In PHH Corp. v. Consumer Financial Protection Bureau, Judge Kavanaugh similarly concluded that the structure of the Consumer Financial Protection Bureau is unconstitutional. He wrote that by vesting sweeping regulatory power in a single director who could not be removed by the President at will, the CFPB posed a “threat to individual liberty.”
After reviewing the text of Article II and the relevant historical practice, Judge Kavanaugh determined that the “CFPB’s departure from historical practice, threat to individual liberty, and diminution of Presidential authority” combined to make the CFPB’s structure “overwhelming case of unconstitutionality.” He added: “The CFPB is exceptional in our constitutional structure and unprecedented in our constitutional history.”
Judge Kavanaugh has consistently defended the religious liberties of all Americans.
In Priests for Life v. HHS, Judge Kavanaugh argued that requiring religious organizations to facilitate their employees’ access to contraceptives violated the Religious Freedom Restoration Act. His position was vindicated by the Supreme Court.
- Judge Kavanaugh criticized the panel majority for “judicially second-guessing the correctness or the reasonableness” of plaintiffs’ religious beliefs and argued that it is “crystal clear” that when “the Government forces someone to take an action contrary to his or her sincere religious belief” or else “suffer a financial penalty,” the Government “has substantially burdened the individual’s exercise of religion.”
In Newdow v. Roberts, Judge Kavanaugh affirmed the constitutionality of the tradition of prayer at the Presidential inauguration and the invocation of “God save the United States and this honorable Court” prior to court proceedings.
- His opinion refused to “dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities” and suggested that “stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion.”
FREEDOM OF SPEECH
Judge Kavanaugh defends the First Amendment right to free speech and expression. He struck down Federal Election Commission regulations that limited independent political spending by non-profit organizations, ruling that the regulations ran afoul of the First Amendment “right of citizens to band together and pool their resources … in order to express their views about policy issues and candidates.”
Judge Kavanaugh respects the Second Amendment. Applying the text, history, and tradition of the Constitution, Judge Kavanaugh wrote a dissent arguing that a restrictive D.C. ban on commonly owned semi-automatic rifles violates the right to bear arms. Heller v. District of Columbia.
- Judge Kavanaugh’s dissent stated that “The D.C. gun provisions at issue here, like the ban at issue in [the Supreme Court’s decision in] Heller, are outliers that are not traditional or common in the United States. As with D.C.’s handgun ban, therefore, holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms—a history and tradition that Heller affirmed and adopted as determining the scope of the Second Amendment right.”
REINING IN THE ADMINISTRATIVE STATE
Judge Kavanaugh has consistently ruled against regulatory overreach by administrative agencies.
He held unlawful major EPA rules limiting greenhouse gas emissions and pollution from coal power plants and other sources, which would have imposed billions of dollars in costs.
In Coalition for Responsible Regulation v. EPA, Judge Kavanaugh argued in dissent that the Obama EPA’s massively burdensome greenhouse gas regulations for power plants and other facilities exceeded its authority. In a 5-4 decision by Justice Scalia, the Supreme Court agreed.
- Judge Kavanaugh wrote that an agency cannot “adopt absurd or otherwise unreasonable interpretations of statutory provisions” and that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.”
In White Stallion Energy Center LLC v. EPA, Judge Kavanaugh argued in dissent that EPA must consider costs before imposing significant new regulations on electric utilities – regulations that would have cost utilities about $9.6 billion a year. In a 5-4 decision by Justice Scalia, the Supreme Court agreed.
- Judge Kavanaugh wrote that “as a matter of common sense, common parlance, and common practice, determining whether it is ‘appropriate’ to regulate requires consideration of costs” and that EPA’s approach departed “from the clear statutory scheme, standard agency decisionmaking, and the common understanding of the term ‘appropriate’ in this regulatory context.”
In EME Homer City Generation L.P. v. EPA, Judge Kavanaugh held that the Obama EPA’s cross-state air pollution rule was unlawful and imposed excessive regulatory burdens on the states. The Supreme Court reversed in a decision by Justice Ginsburg; Justices Scalia and Thomas agreed with Judge Kavanaugh and dissented, and Justice Alito was recused.
- Judge Kavanaugh’s opinion explained that the EPA had “impose[d] massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text” and had compounded its error by “not allow[ing] States the initial opportunity to implement the required reductions with respect to sources within their borders.”
In Loving v. IRS, Judge Kavanaugh ruled that the IRS lacked authority to regulate small tax preparation businesses. Judge Kavanaugh stated as follows:
- “The IRS is surely free to change (or refine) its interpretation of a statute it administers. But the interpretation, whether old or new, must be consistent with the statute. And in the circumstances of this case, we find it rather telling that the IRS had never before maintained that it possessed this authority. In light of the text, history, structure, and context of the statute, it becomes apparent that the IRS never before adopted its current interpretation for a reason: It is incorrect.” [Citations omitted]
In SeaWorld of Florida v. Perez, Judge Kavanaugh memorably voted against the regulation of whale shows at SeaWorld, stating that “the bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers in the circus, or the like.”
In U.S. Telecom Association v. FCC, Judge Kavanaugh dissented from denial of rehearing en banc in support of a challenge to an FCC regulation. After carefully analyzing the statutory text and structure, Judge Kavanaugh rejected the FCC’s reading of the statute and request for Chevron deference, based in part on the principle that Congress does not ambiguously delegate massive authority (such as regulating the Internet) to administrative agencies.
- “Under the Constitution’s separation of powers,” Judge Kavanaugh explained, “Congress makes the laws, and the Executive implements and enforces the laws. The Executive Branch does not possess a general, free-standing authority to issue binding legal rules. The Executive may issue rules only pursuant to and consistent with a grant of authority from Congress (or a grant of authority directly from the Constitution).” As a result, an agency cannot exercise “expansive regulatory authority over some major social or economic activity” without clear authorization from Congress.
Judge Kavanaugh has consistently ruled in favor of American workers, manufacturers, and interests.
In American Meat Institute v. USDA, Judge Kavanaugh concluded that country-of-origin labeling requirements, such as a requirement that Chinese products be labeled “Made in China,” do not violate the First Amendment.
- Judge Kavanaugh explained that “country-of-origin labeling is justified by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers,” and in encouraging American consumers to buy American products.
In Fogo de Chao (Holdings) v. DHS, Judge Kavanaugh concluded that a corporation was exploiting the “specialized knowledge” visa program to import low-cost foreign workers to do jobs that American workers can do.
- Judge Kavanaugh argued that “mere economic expediency does not authorize an employer to displace American workers for foreign workers.”
In Agri Processor Co. v. NLRB, Judge Kavanaugh argued in dissent that illegal immigrant employees have no right to vote in union elections under federal labor law and that the National Labor Relations Board should have overturned an election that was tainted by illegal immigrant participation.
- He wrote that “an illegal immigrant worker is not a lawful ‘employee’ in the United States” and that the majority’s decision disregarded the rights of “legal workers, whose votes may have been diluted or overridden . . . by the votes of illegal immigrant workers.”
PROTECTING CIVIL LIBERTIES & SUPPORTING LAW ENFORCEMENT
Judge Kavanaugh has affirmed convictions in which criminal defendants were fairly held accountable for crimes. At the same time, he has stood firm against prosecutorial overreach and the encroachment on constitutional rights.
In Jones v. United States, Judge Kavanaugh championed the Fourth Amendment’s protection of property interests as well as privacy interests. He wrote that the physical intrusion of installing a GPS device on a defendant’s car triggers Fourth Amendment concerns. His analysis was later adopted by the Supreme Court in an opinion by Justice Scalia.
- Judge Kavanaugh emphasized that the Supreme Court “has not retreated from the principle that the Fourth Amendment also protects property interests” and explained that cars “are ‘effects’ under the text of the Fourth Amendment and are thus ‘constitutionally protected areas’” under the Supreme Court’s Fourth Amendment precedents.
Judge Kavanaugh has also emphasized the importance of mens rea—the concept that a defendant must have a guilty mind—to bedrock American principles of justice and responsibility. In United States v. Burwell, the defendant received an additional 20-year prison sentence for possessing an automatic weapon. Judge Kavanaugh voted to vacate the sentence due to a lack of proof that the defendant knew his weapon was automatic.
- Insisting on the “critical link between human liberty and mens rea requirements,” Judge Kavanaugh wrote that convicting a defendant “based on a fact the defendant did not know is unjust and incompatible with deeply rooted principles of American law.”
Judge Kavanaugh voted to curb expansive use of asset forfeiture. In In re Any & All Funds, he ruled that the U.S. Government cannot seize an individual’s assets as a result of an ongoing foreign investigation where no court has found that individual guilty of a legal violation.
- Judge Kavanaugh’s opinion explained that the forfeiture statute’s “plain text” did not allow the Government to freeze a U.S. citizens assets “for years – without any meaningful substantive judicial review in a U.S. court – based merely on the request of a foreign official.” Judge Kavanaugh added that the Government’s policy preferences “cannot transform the content of a statute’s text.”
In Wesby v. District of Columbia, Judge Kavanaugh emphasized that police officers should have room to make reasonable judgments about whether they have probable cause to make arrests. He voted to protect police officers from a $1 million lawsuit brought by a group of partygoers who took issue with their arrest for trespassing at a vacant house late at night with drugs and strippers. His position was unanimously vindicated by the Supreme Court this year.
- Judge Kavanaugh’s opinion explained that it is “settled law” hat “in the heat of the moment, police officers are entitled to make reasonable credibility judgments and to disbelieve protests of innocence from, for example, those holding a smoking gun, or driving a car with a stash of drugs under the seat, or partying late at night with strippers and drugs in a vacant house without the owner or renter present.”