Brett Kavanaugh

Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.”  That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees.  Candidates are generally first evaluated by their home state Senators and their staff.  Then, they are vetted again by the White House Counsel’s office and the Department of Justice.  They are then examined by the FBI and the American Bar Association (ABA).  Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum.  At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process.  A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit.  Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed.  I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff.  In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates.  Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character.  The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process.  Take allegations of sexual assault, for example, comparable to those made by Dr. Ford.  Where the allegations have not been reported to the police, they will not show up in a criminal background check.  Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches.  Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures.  As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct.  Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety.  As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed.  Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018.  Judge Kavanaugh was announced as the nominee on July 9, just 12 days later.  In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010.  Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing.  While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year.  Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record.  As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public.  At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before).  The White House chose not to.  The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question.  The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched.  No other witnesses were called, and no follow up questions were asked.  If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process.  Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process.  However, it is important to recognize that.  Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees.  As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.

 

 

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Judge Brett Kavanaugh – First Amendment Rulings

The First Amendment to the U.S. Constitution is colloquially known for establishing the right to free speech, but it actually encompasses several rights, including the freedom of the press, and the right of assemble, demonstrate, and petition your elected representative.  Additionally, the religion clauses of the First Amendment guarantee the right to practice your religion without government interference, as well as prohibiting government endorsement or establishment of religion.  The myriad rights recognized by the First Amendment have been further fleshed out by the Supreme Court and lower courts.  Kavanaugh himself has written several opinions in First Amendment cases.  In these opinions, summarized below, Kavanaugh has generally taken an expansive view of First Amendment rights, showing a willingness to strike down regulations that impinge, even slightly, on First Amendment territory.

Freedom of Speech

The First Amendment guarantees the freedom of speech to all Americans.  In other words, we cannot be punished by the government for expressing our views.  As noted above, Kavanaugh has taken an expansive view of this freedom, particularly as it relates to campaign and communication regulations.

Campaign Regulations

The most recent frontier in free speech cases has involved campaign finance.  In its landmark decision in Citizens United v. FEC, the Supreme Court struck down government restrictions on independent expenditures made by corporations and unions in campaigns, ruling that such restrictions were an infringement of the First Amendment.[1]  Since then, numerous campaign regulations have been challenged on First Amendment grounds.

In 2016, Kavanaugh decided one such challenge in holding that the Independence Institute, a non-profit organization, should be allowed to proceed in its First Amendment challenge against federal regulations requiring them to disclose their donors.[2]  In his majority opinion, Kavanaugh acknowledged that the Supreme Court had upheld disclosure requirements in the past (including in Citizens United) but noted that the Independence Institute was a 501(c)(3) organization, rather than the 501(cv)(4) involved in Citizens United.[3]  This distinction, Kavanaugh ruled, was sufficient to allow the case to proceed.[4]

In dissent, Judge Robert Wilkins argued that the First Amendment challenge was precluded by Citizens United, and that the factual distinctions drawn by Kavanaugh were “immaterial.”[5]

Kavanaugh also has the notable distinction of having struck down campaign finance regulations on First Amendment grounds before Citizens United.  In Emily’s List v. FEC, Kavanaugh struck down a series of FEC regulations limiting the use of “soft money” by non-profits in election spending.[6]  In striking down the regulations, Kavanaugh noted:

“Donations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some McConnell-like evidence establishing such corruption or the appearance thereof.”[7]

Judge Janice Rogers Brown refused to join Kavanaugh’s First Amendment analysis in the case, noting:

“I have grave doubts about the court’s analysis, which bears at most a passing resemblance to the parties’ briefs, and which will profoundly affect campaign finance law in this circuit.”[8]

Communications Regulation

Kavanaugh has also sought to apply the First Amendment in the context of communications regulation.  As the D.C. Circuit upheld Federal Communications Commission (FCC) regulations barring exclusive contracts between cable operators and affiliated cable programming networks, Kavanaugh dissented.[9]  In his dissent, Kavanaugh argued, as cable networks and operators both engage in protected speech, that the FCC regulations (which are intended to avoid monopolies) implicate First Amendment rights.[10]  Applying the First Amendment, Kavanaugh found that a changed competitive marketplace for cable means that the FCC bans no longer further an interest in fair competition and must be struck down.[11]

Press

The First Amendment also protects a free press from both government censorship and excessive regulation or litigation.  As such, the Supreme Court has recognized fairly broad protections from journalists against defamation suits (which seek damages for the publication of false information).  Kavanaugh reaffirmed this principle in one notable defamation case.[12]  In the case, a prisoner filed a defamation action against the Bureau of National Affairs (BNA) for attributing some negative comments during his sentencing hearing to the judge rather than the prosecutor.[13]  After the district judge denied BNA’s motion to dismiss, Kavanaugh reversed the ruling on appeal, noting that the First Amendment protected the BNA’s actions as long as they were not made with “actual malice” and that the plaintiff could not make such a showing.[14]

Freedom of Assembly + Petition

In addition to the Freedom of Speech and the Press, the First Amendment encompasses the Freedom of Assembly, or the right of people to come towards to express their ideas collectively.  Encompassed within that right is the right to associational freedom: the right to join organizations that are formed around causes you believe in; as well as the right not to join organizations you disagree with.  Additionally, the First Amendment includes the right to peacefully petition your elected representatives on issues that are important to you.

Kavanaugh authored a notable opinion discussing the latter right.  In We the People Foundation, Inc. v. United States, the plaintiffs submitted “petitions with extensive lists of inquiries” related to questions about the government’s violation of the taxing and war powers clauses.[15]  When the government agencies to whom the petitions were addressed failed to respond, the plaintiffs brought suit, alleging two claims: first, that the First Amendment right to petition encompassed a right to a “good faith exchange” between the government and the petitioner; second, that the First Amendment prohibited the government from retaliating against plaintiffs for filing the petition.[16]  Kavanaugh wrote for a majority of the D.C. Circuit rejected the claim under the First Amendment, finding that, under the Supreme Court’s holding in Smith v. Arkansas State Highway Employees, there was no “affirmative obligation” under the First Amendment to have the government respond to a petition.[17]

In concurring with the main opinion, Judge Judith Ann Wilson Rogers noted the depth of historical sources that plaintiffs had cited, and suggested that, as such evidence had not presented to the Supreme Court in prior cases, that the outcome of Smith and other precedent may have been different had the record on the right to petition been fully explored.[18]

Freedom of Religion

The Free Exercise Clause of the First Amendment protects the right to worship and believe in accordance with any and no faith.  Congress extended the protections of the Free Exercise Clause in the Religious Freedom Restoration Act (RFRA), which required any government action or regulation that substantially burdened a sincerely held religious belief to be narrowly tailored to a compelling governmental interest.

In one notable case, a panel of the D.C. Circuit found that the religious rights of Catholic nonprofits were not violated by the ACA’s “religious accommodation” opt-out from its contraceptive mandate.[22]  The full D.C. Circuit then declined to take the case en banc, with Kavanaugh in dissent.  In his dissent, Kavanaugh argued that the challenged accommodations substantially burden Catholic non-profits by making them “conduits” to providing contraceptive coverage through an alternative means.[23]

Establishment of Religion

The Establishment Clause of the First Amendment prevents the government from endorsing, establishing, or placing a stamp of approval on one faith or kind of religious service.  While Kavanaugh has generally interpreted the other rights in the First Amendment broadly, he has not done so for the Establishment Clause.

In In re Navy Chaplaincy, Kavanaugh rejected an Establishment Clause challenge to the retirement system for Navy Chaplains, which plaintiffs alleged discriminated in favor of Catholic chaplains.[19]  Kavanaugh found that the plaintiffs, current and retired non-liturgical Protestant chaplains lacked standing to raise an Establishment Clause claim, finding that being exposed a “message” of preference for Catholic chaplains is insufficient to constitute an injury.[20]

In dissent, Judge Judith Ann Wilson Rogers wrote that Kavanaugh’s opinion “ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing…”[21]

 

[1] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[2] Ind. Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016).

[3] Id. at 117.

[4] Id.

[5] See id. (Wilkins, J., dissenting).

[6] Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir. 2009).

[7] See id. at 18 (citations omitted) (emphasis in original).

[8] See id. at 25 (Brown, J., concurring in part).

[9] Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1315 (D.C. Cir. 2010) (Kavanaugh, J., dissenting).

[10] Id. at 1322.

[11] Id. at 1325.

[12] Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017).

[13] See id. at 110.

[14] Id. at 117-18.

[15] We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007).

[16] Plaintiffs alleged that the federal government had retaliated by prosecuting plaintiffs who refused to pay federal income taxes out of protest.

[17] See id. at 145.

[18] See id. at 145-48 (Rogers, J., concurring).

[19] In re Navy Chaplaincy, 534 F.3d 756, 758 (D.C. Cir. 2008).

[20] Id. at 764.

[21] Id. at 770-71 (Rogers, J., dissenting).

[22] Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014).

[23] Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc).

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Meet the Shortlisters: Brett Kavanaugh

Judge Brett Kavanaugh currently serves on the second most powerful court in the country: the D.C. Circuit.  Since 2006, Kavanaugh has served as the intellectual center of the D.C. Circuit’s conservative wing.  This record of jurisprudence has set Kavanaugh to replace the Justice he once clerked for: Justice Kennedy.

Vital Statistics

Name: Brett Michael Kavanaugh

Age: 53

Current Position: Judge on the U.S. Court of Appeals for the D.C. Circuit (since 2006)

Education: B.A. from Yale; J.D. from Yale Law School

Clerkships: Judge Walter Stapleton, U.S. Court of Appeals for the Third Circuit; Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; Justice Anthony Kennedy, U.S. Supreme Court.

Prior Experience: Solicitor General’s Office, Department of Justice; Associate Independent Counsel, Whitewater Investigation; Private Practice; Associate Counsel and Assistant to the President for President George W. Bush

Jurisprudence

Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit since 2006.  During his twelve years on the court, Kavanaugh has authored approximately 270 majority opinions, concurrences, and dissents.  These opinions generally establish Kavanaugh as one of the most conservative judges on the court.

Given the D.C. Circuit’s jurisdiction over many administrative law cases, Kavanaugh has written extensively in evaluating agency regulations and decisions.  For example, after a panel of the D.C. Circuit upheld net neutrality regulations passed by the Federal Communications Commission, Kavanaugh dissented from denial of rehearing en banc, arguing that net neutrality violated both Congress’ grant of power to the agency and the First Amendment.  See United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 417 (D.C. Cir. 2017).  In another case, Kavanaugh found that the Environmental Protection Agency was statutorily required to consider the costs of emission control in issuing regulations.  White Stallion Energy Cntr. LLC v. EPA, 748 F.3d 1222, 1259 (D.C. 2014).  This holding was ultimately affirmed by the Supreme Court.  Michigan v. EPA, 135 S. Ct. 2699, 192 L. Ed. 2d 674 (2015).

In other cases Kavanaugh:

  • Dissented from a ruling requiring an immigrant minor who sought access to an abortion to be provided one.  Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
  • Dissented from denial of en banc rehearing of a decision upholding a requirement that religious organizations not wishing to provide contraceptive coverage for employees participate in the opt out process.  Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015).
  • Ruled that the structure of the Consumer Financial Protection Bureau (CFPB), which required the President to have cause before dismissing the head, was unconstitutional.  PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165 (D.C. Cir. 2018).  This ruling was overturned by the D.C. Circuit en banc.  881 F.3d 75 (D.C. Cir. 2018).
  • Held that the Anti-Injunction Act barred plaintiffs from challenging the individual mandate of the Affordable Care Act.  Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  • Held the Affordable Care Act did not violate the Origination Clause of the Constitution.  Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015).

Why Trump Could Choose Kavanaugh as His Nominee

Trump has indicated that he is looking for a nominee with Ivy League credentials and a strong academic record.  Kavanaugh ticks off both boxes. Furthermore, Kavanaugh is generally strongly regarded as a judge and has developed a solidly conservative record on the D.C. Circuit.

Additionally, White House Counsel Don McGahn is particularly focused on Administrative Law when selecting judges.  Specifically, McGahn is looking for judges who oppose deference to administrative agencies and prefer a greater degree of judicial involvement in judging agency policy.  Kavanaugh’s record, more than that of any other shortlister, reflects this hostility to agency deference.

Why Trump Would Not Choose Kavanaugh as His Nominee

Kavanaugh is already facing a lot of pushback from social conservatives, who argue that his record shows an insufficient commitment to overturning Roe v. Wade.  Additionally, some senators have pushed back regarding Kavanaugh’s opinion in the Affordable Care Act cases, arguing that Kavanaugh failed to overturn the Act when he had a chance.

Expected Lines of Attack

While Kavanaugh is currently facing criticism from social conservatives, it is unlikely that such criticism would continue in a sustained fashion if he was selected as the nominee.  Rather, if nominated, Kavanaugh is more likely to face criticism from the left, who will criticize his willingness to overturn regulations (that they would argue are) needed to protect health and safety.  Kavanaugh may also be attacked for his work as part of the Whitewater Investigation, in the Bush Administration, and for writings on executive power and authority.

Likelihood of Nomination

Kavanaugh is likely the preferred candidate of White House Counsel Don McGahn.  In general, he is a candidate who is likely to unite the Republican caucus and has the best chance (of the current shortlisters) of securing Democratic support.  As such, despite the social conservative pushback, I expect Kavanaugh to be a strong contender for the nomination.

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