Brett Kavanaugh

Brett Kavanaugh looking innocent.

“”There’s no more perfect symbol of American collapse than Brett Kavanaugh. It isn’t just that he’s a force of regress at a time when America desperately needs the opposite...it’s that he symbolizes, in many ways, the strange and terrible victory of the forces that have led America to a grim turning point where it is collapsing as a society — perhaps irreversibly. Trump is the consummate outsider. But Kavanaugh is the insider — the prep school boy, the Ivy Leaguer, the DC partisan functionary. Now note the strange thing here. We might have expected all these things to have civilized him — but no such thing happened whatsoever. None of these institutions — the prep school, the university, the political party, government — socialized him to believe in the basic tenets of democracy in any way at all. Instead, they seem to have socialized Kavanaugh into being a predator, to have masked and hidden his abuse, and to have given the enraged, preening entitlement to it, the sense that because he is atop American hierarchy, he has a license to abuse, demean, harm, and violate.

—Umair Haque

It's the Law

To punish and protect

Torture Capital punishment Impeachment Universal Life Church In-utero harm Executive order National Security Act Natural law Fiqh Abuso infantil John Marshall Stephen Breyer v - t - e

Brett Michael Kavanaugh (1965–), also known as Bart O'Kavanaugh, is an American lawyer and Jurist who served as an appellate judge for the D.C. circuit for twelve years before becoming an associate justice of the Supreme Court on October 6, 2018. He was appointed by President Donald Trump on July 9, 2018, to fill the vacancy left by the retirement of Anthony Kennedy, for whom he previously clerked. His confirmation hearing was delayed due to multiple accusations of sexual misconduct. Trump ordered an FBI investigation, but then made sure nothing happened by considerably limiting the scope and time of the investigation. He was "finally" sworn in after the second shortest confirmation process in recent history. His confirmation is arguably detrimental to the legitimacy of not just the Supreme Court, because he revealed himself to be a partisan with his heated attacks against Democrats during the confirmation hearing, but also the Republicans in the 2018 midterm elections. He also proved to lack the necessary emotional maturity for the Supreme Court by throwing a temper tantrum during his hearing.

In 2006, the American Bar Association downgraded its 2003 rating for Kavanaugh from "well qualified" to be a federal judge to merely "qualified." Interestingly, in 2016, when Donald McGahn II, then top lawyer for the Trump campaign and now White House counsel, compiled a list of Supreme Court nominees to fill the vacancy left by the death of Antonin Scalia (a spot filled instead by Neil Gorsuch), Brett Kavanaugh was omitted. McGahn is considered a key witness in the Trump-Russia investigation.

Judicial views

Broadly speaking, his judicial views are similar to those of the late Antonin Scalia, though he does not insist on interpreting the words of the Constitution as they were understood at the time they were written. Despite being the successor of Anthony Kennedy, Kavanaugh differs on the topics of presidential powers, affirmative action and criminal justice. Before becoming an Associate Justice, Kavanaugh saw the positions advanced in his opinions adopted by the Supreme Court thirteen times and reversed only once.

Presidents, civil lawsuits, presidential powers, and separation of powers

“	We believe an indictment should not be pursued while the President is in Office.	”
—Brett Kavanaugh for the Starr investigation of Bill Clinton, AP

Although Brett Kavanaugh was part of the Kenneth Starr team investigating Bill Clinton and was very tough on him, Kavanaugh later changed his mind on the question of civil lawsuits against Presidents. He argued in a 2009 article for the Minnesota Law Review that a sitting President should be exempt from "time-consuming and distracting" lawsuits and investigations so that he or she can focus on serving the public interest, "especially in times of financial or national security crisis." Such processes could proceed after the President has left office. If the President was being truly obnoxious or malevolent, he or she could always be impeached by Congress. Writing in the Starr Report, Kavanaugh argued that a President may also be impeached for lying to his or her staff or misleading the public. He also expressed his misgivings for indicting a sitting President.

He believes in what is known as the unitary executive theory, which states that the President bears full responsibility for the execution of federal laws and holds full authority over all federal agencies and their officers. He views the presidency as the stabilizing institution, not Congress. This position makes him of great interest to Donald Trump, who is being investigated by Special Counsel Robert S. Mueller III for his possible illicit ties with Russia; the case could end up on the Supreme Court. But his aforementioned position that making false statements is an impeachable offense could prove damaging to Trump's case. Surprisingly, during his nomination hearing, Kavanaugh denied discussing the Mueller probe with the White House and said he had not yet taken a position on the constitutionality of investigating a siting president.

Kavanaugh strongly supports presidential power and opposes government bureaucracy, favoring the transfer of power to the President at the expense of administrative bodies. However, he tends to approach the issue on a case-by-case basis. Still, this can be gleaned from his opinions and rulings: he believes that unless Congress has expressed its views on a particular topic or delegated a question to a particular agency, said agency has no authority to make a decision, and any regulation challenged under the relevant statute is presumed to be invalid. Kavanaugh refers to this as his "major rules doctrine."

In 2016, Kavanaugh wrote for a panel ruing that the structure of Consumer Financial Protection Bureau (CFPB), a brainchild of Elizabeth Warren created under the Dodd-Frank Act, was unconstitutional, but did not order its shutdown, contrary to the wishes of the plaintiffs and critics, who argued that the CFPB represented regulatory overreach and gave too much power to an individual, namely its director. The court's remedy was to give the President the power to remove the director of the Bureau. Originally, Dodd-Frank gave the Bureau's director a high degree of independence, and stipulated that he or she could only be fired for "inefficiency, neglect of duty or malfeasance."

Health insurance, abortions and contraception

Kavanaugh dissented when the D.C. Circuit Court upheld the Affordable Care Act (ACA), also known as Obamacare, as constitutional, arguing that the court lacked jurisdiction to hear the case. In his dissent, he further argued that the penalty that comes with failure to comply with the "minimum essential coverage provision", more commonly known as the "individual mandate", which requires people to obtain and maintain health insurance unless they qualify for a waiver or are exempt, was basically a tax. However, the majority disagreed with this "linguistic analysis". The case was appealed, but the appellate court affirmed the previous decision. When the ACA found itself at the Supreme Court, comparing the individual mandate penalty to a tax became a central argument. As of 2018, both the ACA and the mandate remained in place. Observe that Kavanaugh never questioned the constitutionality of the ACA.

Kavanaugh objected when a court on which he served permitted a teenaged immigrant in federal custody to have an abortion, arguing that the court had allowed undocumented minors to access "immediate abortion on demand", and that the government did not impose an undue burden on the girl by making her wait for a sponsor first.

In a case concerning whether or not religious non-profits may exempt themselves from an Obamacare requirement that they provide birth-control benefits to their employees, unlike the dissenters who argued that the government had no compelling interest in facilitating access to contraception, Kavanaugh conceded that such an interest exists, but can be achieved in other ways, though he did not specify which ways. During his confirmation hearings, when answering a question about this, then Senator Kamala Harris put out a deceptively edited video of his testimony to make his summary of the employers' argument sound as if he was offering his personal view; when called on her bullshit, she opted to both double down and move the goalposts.

In late 2018, the Supreme Court declined to hear a case brought by Kansas and Louisiana seeking to eliminate Medicaid funding for Planned Parenthood. Justice Kavanaugh voted with the majority, which included Chief Justice John Roberts and the Court's four liberal Justices.

In 2022, Kavanaugh voted with the majority opinion to nullify Roe v. Wade in the Dobbs v. Jackson Women's Health Organization case.

Gun ownership

Kavanaugh issued many challenges to gun control laws as circuit judge for the District of Columbia. He said he would have nullified the city’s ban on semiautomatic weapons and requirement that all guns be registered. Gun control activists are worried about his views on this issue.

Environmental protection

Kavanaugh sometimes attempted to rein in on Obama-era EPA regulations. In 2012, he opposed the EPA adapting the language of the Clean Air Act of 1970 to regulate greenhouse-gas emissions. He justified his position by writing that the Agency "exceeded its statutory authority," setting a precedent for other agencies to "adopt absurd or otherwise unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness," warning that "undue deference or abdication to an agency carries its own systemic costs." In the same year, he rejected an attempt by the EPA to curb air pollution that crosses state lines. In 2014, he dissented in a ruling that upheld the EPA's practice of not considering costs when regulating power plants, arguing that "as a matter of common sense, common parlance, and common practice, determining whether it is 'appropriate' to regulate requires consideration of costs."

However, Kavanaugh has not always ruled against the EPA. For example, in 2010, he wrote an opinion upholding the EPA’s review of California’s limits on emissions from in-use non-road engines, and in 2014, he upheld an EPA program intended to address the impact of strip coal mining. Still, environmentalists are worried about his views on this topic. Kavanaugh appears to have never dissented from a ruling not in favor of an environmental interest.

The First Amendment

See the main article on this topic: First Amendment

In a 2010 case in which atheist plaintiffs objected to religious components of presidential inauguration ceremonies as violations of the Establishment Clause, Kavanaugh concurred with a panel ruling that they lacked the standing to sue. Furthermore, he rejected their claims on the grounds that "those longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court."

In 2011, Kavanaugh concurred with a ruling against an activist who chalked an anti-abortion message on the street outside the White House, noting that "[n]o one has a First Amendment right to deface government property."

In 2017, Kavanaugh dissented from a denial of rehearing en banc of a case in which the challenge to the Obama administration's "net neutrality" rules by telecommunications and internet service providers was rejected. This is an example of Kavanaugh applying his "major rules doctrine," described above. He wrote that net neutrality "impermissibly infringes on the Internet service providers' editorial discretion."

Labor

In most cases, Kavanaugh narrowly interprets U.S. labor laws and generally favors employers over employees. His views on union issues are similar to those held by the Supreme Court’s conservative justices: Chief Justice John Roberts Jr. and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.

Prolific partisan

Kavanaugh swearing in with his family and a boiled ham.

Kavanaugh also had a hand in other partisan battles, including the Elián González custody battle, the Terri Schiavo debacle, and the 2000 Florida election recount (where he served on George W. Bush's legal team). Just prior to the 2020 U.S. presidential election, Associate Justice Kavanaugh actually cited Bush v. Gore "in his explanation of why he voted to deny a request to reinstate an extension for the receipt of mail-in ballots in Wisconsin [...] the Supreme Court has never cited it as precedent in the two decades since, and only one other justice, Clarence Thomas, has even mentioned it in an opinion."

Given that D.C. Circuit judges often review high-profile politically polarizing cases, his involvement in such political fights is no surprise. Furthermore, Chief Justice John G. Roberts Jr., and Associate Justices Ruth Bader Ginsburg, Clarence Thomas and the late Antonin Scalia all served there before being nominated for the Supreme Court. However, Democrats argued he was too partisan and delayed his nomination to the bench for three years.

Hatred of the Clintons

See the main articles on this topic: Bill Clinton and Hillary Clinton

Kavanaugh's obsessive public hatred of the Clintons began with his wasting of federal tax money investigating the Vince Foster conspiracy theory in 1997 while working as an Associate Counsel under Ken Starr. Kavanaugh was also a principal author of the sexually explicit 1998 Starr Report to Congress, which led to the impeachment of Bill Clinton, the explicitness of which, was likely due to Kavanaugh. Kavanaugh could not even keep his hatred of the Clintons contained during his Senate confirmation testimony.

Accusations of sexual misconduct

Dr. Ford swearing in before the Senate Judiciary Committee.

Christine Blasey Ford

In early July 2018, when it became clear that Kavanaugh was on the shortlist of possible nominees to replace retiring justice Anthony Kennedy, but before Trump announced his name publicly, Christine Blasey Ford, a professor of psychology at Palo Alto University and a research psychologist at the Stanford University School of Medicine, contacted the Washington Post with allegations that Kavanaugh had sexually assaulted her in the early 1980s when they were in high school. According to Ford, one summer in the early 1980s, Kavanaugh and a friend corralled her into a bedroom during a gathering of teenagers at a house in Montgomery County, Maryland. Then, while his friend watched, Kavanaugh pinned her to a bed on her back and groped her over her clothes, attempting to remove her clothing. Ford said she was able to escape when Kavanaugh's friend, Mark Judge, jumped on top of them, sending all three tumbling.

In August 7, Ford also took a polygraph test, which concluded she was being truthful when she said a statement summarizing her allegations was accurate. The test consisted of only two questions, after an interview of Ford regarding her accusations of sexual assault: "Is any part of your statement false?" and "Did you make up any part of your statement?" Ford answered "No" to both questions. It is worth pointing out that, according to the American Psychological Association, there is little evidence that polygraph tests can accurately detect lies (see the Polygraph page for more details). It is thus disappointing that a professional psychologist such as Ford decided to take that test.

Aside from Kavanaugh himself, Ford has named three other people she says were at the party during the alleged incident: Mark Judge, a close high school friend of Kavanaugh's, he being in the room during the alleged assault; Patrick James Smyth, one of Kavanaugh's classmates in the Georgetown Prep class of 1983, as one of the people present at the alleged gathering; and Leland Ingham Keyser, a lifelong friend of Ford, who was downstairs at the party during the alleged incident. All three have denied any recollection of being at such a party or knowing of an any alleged assault by Kavanaugh.

On September 30, The Washington Post published a five-page memo written by Rachel Mitchell, the outside prosecutor Senate Republicans hired to lead the questioning in Ford's hearing about the sexual assault allegations. In the memo Mitchell outlines more than half a dozen reasons she thinks that Ford's testimony has some key inconsistencies, and she says that she does not think that a reasonable prosecutor would bring this case based on the evidence before the Senate Judiciary Committee, nor does she believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard. Some of the points mentioned by Mitchell are the following:

• Ford has not offered a consistent account of when the alleged assault happened. First, she said "mid 1980s", then "early 80s", then "summer of 1982". In particular, Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.
• Ford does not remember in what house the assault allegedly took place or where that house was located with any specificity.
• Ford does not remember how she got to the party and how she got from the party back to her house.

On October 2, in a letter to Fox News, a man whose name was redacted asserts to have been in a relationship with Ford from approximately 1992 to 1998 and contradicts some of her claims. In particular, he says Monica McLean was applying for positions at the FBI and the U.S. Attorney's Office and he "witnessed Dr. Ford help McLean prepare for a potential polygraph exam. Dr. Ford explained in detail what to expect, how polygraphs worked and helped McLean become familiar and less nervous about the exam", contrary to Ford's testimony that she never discussed with anyone, besides her attorneys, how to take a polygraph. The man has later been identified by CNN as Brian Merrick. McLean disputes his assertions in a written statement released by Ford's lawyers. The information has not been verified, as if coming from the cesspit of Fox News wasn't already a red flag.

In an announcement on October 4, the White House found no corroboration of the allegations of sexual misconduct against Brett Kavanaugh after examining interview reports from the FBI's latest probe into the judge's background, according to people familiar with the matter. The FBI interviewed nine people, precisely: Deborah Ramirez, Mark Judge, Chris Garrett, P.J. Smyth, Leland Keyser, Timothy Gaudette, and three other people who have not been named publicly. Ford's attorneys Debra Katz, Lisa Banks, and Michael Bromwich wrote a letter to the FBI pointing out that also the following people should have been interviewed in order to attest Ford's character and credibility: Jeremiah Hanafin (the examiner of Ford's polygraph test), Russell Ford (Ford's husband), Keith Koegler (a close friend), Adela Gildo-Mazzon (a long-time friend), Rebecca Olson (a six-year friend of Ford), Kirsten Leimroth (a family friend) and Jim Gensheimer (who had a lunch meeting with Ford and Leimroth in early July 2018), and Monica L. McLean (a many-years friend of Ford). None of these people were present at the party of the alleged sexual assault, or know of Ford's accusations before 2012.

In the fallout of the FBI investigation, several have criticized the White House for deliberately hampering the FBI investigation in question purely for the sake of rigging the Supreme Court into Republican control and while blaming Democrats for apparent obstruction of justice. Josh Campbell, a CNN law enforcement analyst and former Supervisory Special Agent with the FBI, called the investigation a "charade" in the midst of a politically charged climate, while the White House has deliberately tied the FBI's arms behind its back, all while trying to use the FBI to obstruct Robert Mueller's investigation. Similarly, William E. Scheuerman, Kavanaugh's Yale classmate, called the investigation a "joke", saying that, likely under pressure from President Donald Trump and the Senate GOP leadership, the FBI ignored the information he and his classmates had tried to provide.

Arizona Senator Jeff Flake had demanded an FBI investigation that would do more than just give cover to Senators, but it was ultimately no more than that because Trump took the unprecedented move of hamstringing the FBI by limiting its time and scope; Flake and Senator Susan Collins took cover under the report and voted to confirm Kavanaugh.

Deborah Ramirez

On September 23, 2018, the New Yorker published an accusation from Deborah Ramirez, a classmate of Kavanaugh at Yale University. She said Kavanaugh had exposed himself at a drunken dormitory party during the 1983–84 academic year, and he had thrust his penis in her face. The New York Times interviewed several dozen people in an attempt to corroborate her story, but could find no one with firsthand knowledge. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Kavanaugh was the one who exposed himself.

Julie Swetnick

On September 25, 2018, Julie Swetnick, a former government employee, declared in a sworn statement that she went to high school parties involving Mark Judge and Kavanaugh and that it was common at such parties for boys to prey on girls, sometimes by spiking or drugging the drinks so that the girls could not resist. Swetnick was represented by lawyer Michael Avenatti.

However, NBC News could not find outside corroboration for Swetnick's claims. Among four witnesses named by Swetnick, one was deceased, two did not comment, and another did not remember Swetnick. Furthermore, Swetnick's story in her October 1, 2018 interview with NBC was not entirely consistent with her sworn statement, and another witness presented by Avenatti accused Avenatti of misrepresenting her claims. Furthermore, Swetnick has questionable credibility due to having lied on a resume and being accused of sexual misconduct at a previous employer. One senator criticized Avenatti for turning the confirmation into a "circus atmosphere" through raising dubious accusations.

Jane Doe

On September 26, 2018, an anonymous letter received by Senator Kamala Harris and signed Jane Doe was publicly released with Kavanaugh's testimony on the Committee's website. The anonymous woman alleged that Kavanaugh and a friend had raped her "several times each" in a car. Senate Judiciary Committee investigators identified the author as Judy Munro-Leighton, a woman decades older than Judge Kavanaugh, and concluded she had fabricated her accusation. Senator Chuck Grassley asked for federal authorities to investigate her on allegations of making false statements and obstruction.

Possible perjury

Bart, meeting with his study group at Yale.

See the main article on this topic: Perjury

“”"Do you know Bart O'Kavanaugh?" "Yeah. He's around here somewhere." "I heard he puked in someone's car the other night." "Yeah. He passed out on his way back from a party."

—Mark Judge's thinly-veiled memoir

“”…warn the neighbors that we're loud, obnoxious drunks with prolific pukers among us. Advise them to go about 30 miles…

—"Bart" (Brett Kavanaugh) in a 1983 letter to his buddies

Even though Kavanaugh made a number of statements that could be interpreted as false statements or perjury during his Senate confirmation testimony, Republicans seemed unconcerned that these alleged crimes could be used to later impeach Kavanaugh after his confirmation if Democrats retake control of Congress. Kavanaugh appears thinly-veiled as both Bart O'Kavanaugh and Bart Kavanaugh in his schoolmate Mark Judge's memoir, which would seem to put the lie to Kavanaugh portraying himself as a choirboy in school.

This is a list of alleged false and misleading statements made by Kavanaugh under oath:

• "I never attended a gathering like the one Dr. Ford describes."
• "All four witnesses who are alleged to be at the event said it didn't happen."
• "She and I did not travel in the same social circles."
• That he never binge drank and never drank to the point of blacking out. However, Kavanaugh also said, "I liked beer. Still like beer."
• That it was illegal for him to drink during high school
• His explanations of various phrases next to his high school yearbook photo ("Renate Alumnius", "Devil's Triangle", "Boofing", "Beach Week Ralph Club, Biggest Contributor")
• Regarding his receipt of secret information on Democrats during his tenure in the Bush administration
• Regarding his personal involvement in the promotion of two controversial appeals court nominees while in the Bush administration, judges William H. Pryor Jr. and Charles W. Pickering Sr.

In addition, according to Vox, Kavanaugh dodged many questions of the hearing, while Ford did not.

Dismissal of complaints

In December 2018, a federal judicial council dismissed some 83 complaints against Justice Brett Kavanaugh. These complaints accused Kavanaugh of making false statements during his September confirmation hearings, partisan bias, inappropriate judicial temperament, and disrespectful behavior towards members of the Senate Judiciary Committee. This does not come as a surprise, since legal experts have noted that the Judicial Conduct and Disability Act from 1980 excludes Supreme Court Justices. Congress at that time considered it unseemly that members of the high court be subject to rulings by a lower court. Supreme Court Justices may only be removed when impeached and convicted by Congress, which has never happened, though one was impeached and then acquitted by the Senate (Samuel Chase) and some lower-level federal judges have been removed by impeachment.

In an essay for the Wall Street Journal, Kavanaugh admitted that he was "very emotional" during his confirmation hearing and that he said things he should not have said. Yet, the things he said proved he does not have the emotional stability to be on the Supreme Court and therefore shouldn't have been confirmed.