Brett M. Kavanaugh, 53, has been chosen to replace Justice Anthony M. Kennedy, by President Trump. If confirmed, Judge Kavanaugh, who is expected to be a reliable conservative, would replace Justice Kennedy, a Reagan appointee who often voted with the court’s liberal wing on social issues like abortion and gay rights. Judge Kavanaugh is estimated to be more conservative than 66 percent of all other current and former federal judges nominated since 1980.
Before joining the United States Court of Appeals for the District of Columbia Circuit, Judge Kavanaugh held several posts in the administration of George W. Bush, ultimately serving as his staff secretary. He also worked under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. Judge Kavanaugh sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and is reportedly commanding wide and deep respect among scholars, lawyers and jurists.
In an opinion piece in a major daily, Akhil Reed Amar, an Indian American professor at Yale Law School, has hailed the nomination. “The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move,” Prof. Amar wrote.
Judge Kavanaugh has already helped decide hundreds of cases concerning a broad range of difficult issues. Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.
According to Prof. Amar, Judge Kavanaugh has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (
Prof. Amar, who was one of Judge Kavanaugh’s professors when he was a student at Yale Law School, wrote, “This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.
“Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments. A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.
“Judge Kavanaugh is, again, a superb nominee. Judge Kavanaugh could be confirmed with the ninety something Senate votes he deserves, rather than the fifty something votes he is likely to get,” Prof. Amar wrote.
