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How Brett Kavanaugh Would Change The Supreme Court

After 12 days of intrigue, President Trump named Brett Kavanaugh as his nominee to the Supreme Court Monday night. Justice Anthony Kennedy, the longtime “swing” justice on the court, is retiring at the end of July.

Kavanaugh, if confirmed, would likely represent a reliably conservative voice and vote on the high court, tipping its balance significantly to the right for years to come. Gone are the days of the equally sized liberal and conservative blocs with Kennedy in between. With Kavanaugh’s confirmation, the country would enter the age of the solid, 5-4 conservative majority.

Kavanaugh, 53, is a judge on the District of Columbia Circuit Court of Appeals, where he’s served since 2006. He sports the same sort of sparkling, Ivy League resume as the sitting Supreme Court justices. He attended Yale for both college and law school, and he would bring the court’s Harvard-Yale split to 5-4. He clerked for Kennedy in the same term as Trump’s first appointee, Justice Neil Gorsuch. He also went to the same Washington, D.C.-area high school, Georgetown Prep, as Gorsuch did.

According to one prominent measure of judicial ideology, called Judicial Common Space scores, Kavanaugh would fall to the right of Gorsuch and Justice Samuel Alito, and just to the left of archconservative Justice Clarence Thomas. That score is based not on Kavanaugh’s rulings but rather on the nomination and confirmation process. Typically, these scores are based in part on the ideology of a judge’s home-state senators, but because Kavanaugh served on the D.C. circuit and D.C. does not have any senators, his ideology score is based solely on the president who nominated him, George W. Bush. If JCS is accurate, Chief Justice John Roberts will become both the chief justice and the court’s new median justice. Roberts has been the pivotal vote in liberal-leaning decisions only five times during his tenure.

Roberts usually voted conservative in close cases

Percentage of votes coded as conservative in each justice’s Supreme Court career, through the 2016 term

All cases Close cases
justice Total Conservative rulings Percent conservative Total Conservative rulings Percent conservative
Thomas 1,918 1,270 66.2 427 342 80.1%
Scalia 2,461 1,566 63.6 583 472 81.0
Alito 768 485 63.2 182 153 84.1
O’Connor 2,484 1,483 59.7 567 419 73.9
Roberts 800 463 57.9 188 155 82.4
Kennedy 2,361 1,344 56.9 537 383 71.3
Breyer 1,624 675 41.6 379 81 21.4
Souter 1,497 594 39.7 337 60 17.8
Kagan 427 164 38.4 94 17 18.1
Stevens 3,515 1,335 38.0 798 178 22.3
Ginsburg 1,727 645 37.3 395 58 14.7
Sotomayor 523 193 36.9 109 11 10.1

“Close cases” are those decided by any five-justice majority, not exclusively 5-4 decisions. The 2016 term ended in September of 2017.

Source: supreme court database

On the federal bench, Kavanaugh has been a reliable, mainstream conservative. Because the D.C. Circuit’s caseload is disproportionately tilted toward review of administrative agency decisions, there aren’t many clues about how he might rule on hot-button social issues like abortion. Overall, though, his track record is clear: He rules consistently in favor of business and employers and against government regulations and agencies. Over the years, Kavanaugh has authored a number of rulings reining in Obama-era environmental regulations, and he authored a recent dissent arguing that the Consumer Finance Protection Bureau, the agency created in the wake of the Great Recession to prevent future financial meltdowns, was unconstitutional.

This record hasn’t satisfied all conservatives. Kavanaugh has taken a beating over the past week for his alleged lack of ideological purity, particularly in cases involving health care and abortion. Critics of Kavanaugh accused him of creating a “road map” for the legal argument that Chief Justice John Roberts used in the ruling that preserved the Affordable Care Act. And although Kavanaugh dissented last year when the D.C. Circuit ruled that an undocumented pregnant teenager in U.S. custody had the right to an abortion, some detractors took him to task for not going further in his dissent and joining another colleague, who argued in her dissent that the teenager had no constitutional right to an abortion at all.

Liberals are likely to be made even more uneasy, though, by Kavanaugh’s position on issues related to executive power. After arguing vigorously for President Clinton’s impeachment in the late 1990s, he published a law review article in 2009 where he argued that Congress should pass a law exempting a sitting president from criminal investigation and prosecution, and from questioning by prosecutors. “The indictment and trial of a sitting President, moreover, would cripple the federal government,” he wrote, “rendering it unable to function with credibility in either the international or domestic arenas.” Congress, in Kavanaugh’s view, is the only branch of government capable of holding the president criminally accountable.

CNN’s Jim Acosta reported that Trump’s team had indeed “looked at” these arguments written by their nominee. That’s no surprise, given that the question of whether a sitting president can be indicted and tried is still open — and if special counsel Robert Mueller decides to bring charges against Trump, it will almost certainly be up to the Supreme Court to answer that question.

Even before the nominee was unveiled on television, defenders of Trump’s additions to the court were ramping up for a confirmation fight. On cable news on Monday, during the lead-up to the announcement, there were frequent ads paid for by the Judicial Crisis Network, a conservative PAC, urging viewers to call their senators and “help put another great justice on the Supreme Court.” The group will release $1.4 million in ads targeted at the constituencies of red-state senators, The Hill reported.

Kavanaugh is far from an unknown quantity in D.C., and his detractors — from both the left and the right — have already spent the better part of a week working to put him in a negative light. Several of the other front-runners for Kennedy’s seat were political outsiders, with roots in the Midwest, degrees from non-Ivy League law schools, and relatively little experience inside the Beltway. Kavanaugh, on the other hand, is a consummate D.C. insider with decades of close ties to the Washington establishment. Before clerking for Kennedy, he worked briefly in the office of the solicitor general, Ken Starr, who went on to become the independent counsel tasked with investigating Bill and Hillary Clinton’s role in the Whitewater land deal. Starr hired Kavanaugh to work on the investigation, and Kavanaugh was later a lead author on the Starr Report, which outlined possible grounds for Clinton’s impeachment.

After leaving Starr’s office, Kavanaugh stayed in the thick of Washington controversies — to the point where Sen. Dick Durbin told Kavanaugh during his confirmation hearing that he was “the Zelig or the Forrest Gump of Republican politics. You show up at every scene of the crime.” Kavanaugh worked pro bono on the custody battle involving 6-year-old Elián González, arguing that the child should not be deported back to Cuba. That same year, he worked on George W. Bush’s presidential campaign, including the Florida recount, and then joined Bush’s administration as an aide, advising the president on judicial appointments and serving as staff secretary.

Bush nominated Kavanaugh to the D.C. Circuit Court of Appeals in 2003, setting off a fierce, years-long battle over his confirmation. He was finally confirmed in 2006, but only after appearing twice before the Senate Judiciary Committee, where Democrats assailed his closeness to Bush and his lack of experience, and questioned him about potential ties to disgraced lobbyist Jack Abramoff (none emerged). Democratic Sen. Ted Kennedy lambasted him as “the youngest, least experienced and most partisan appointee to the court in decades.”

Kavanaugh will be in for another trying confirmation process, where many of his Clinton- and Bush-era resume bullet points will almost certainly re-emerge.

Read more: “Justice Kennedy Wasn’t A Moderate”

CORRECTION (July 10, 2018, 9:55 a.m.): A previous version of this article incorrectly stated when Sen. Dick Durbin told Brett Kavanaugh he was “the Zelig or the Forrest Gump of Republican politics.” It was in 2004, not 2006.

Oliver Roeder is a senior writer for FiveThirtyEight.

Amelia Thomson-DeVeaux is a writer and reporter living in Chicago.

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