WASHINGTON – Supreme Court nominee Brett Kavanaugh argued in 1998 that President Bill Clinton could be impeached for lying about his affair with Monica Lewinsky. For much of the next decade he worked inside the White House for President George W. Bush, where he came to the conclusion that "the job of president is far more difficult than any other civilian position in government." Thus it was that in 2009, after Barack Obama won the presidency, he suggested that presidents should be immune from criminal investigations and prosecutions, as well as personal civil suits, until after leaving office. "I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible," he wrote. Kavanaugh's evolving views on executive power through the past three presidencies are supported by mainstream conservatives today. But they are viewed with suspicion by some who believe the presidency has grown more powerful than the framers of the Constitution intended. And Democrats are concerned that President Donald Trump's nomination of Kavanaugh for the Supreme Court is a reward for his espousal of presidential powers. Should he win confirmation, some of them say, he should recuse himself from cases involving Trump. "The president of the United States should not be above the law. The president of the United States should not be beyond a criminal investigation," said Sen. Cory Booker, D-N.J. "The president of the United States should not be able to pick the judge that will preside over questions involving his investigation." While Senate Democratic leader Chuck Schumer has said the focus of his party's effort to defeat Kavanaugh will be the judge's views on abortion and health care, his position on executive power is quickly emerging as a third front in the confirmation war. More:Will Brett Kavanaugh deliver the change conservatives crave? More:Brett Kavanaugh is President Trump's nominee for the Supreme Court More:For Trump, nomination may hinge on Kavanaugh's risks and rewards Like many conservatives, including most of those on the Supreme Court, Kavanaugh objects to one form of executive branch power: that exercised by federal regulators and, in particular, independent agencies. He is wary of green-lighting most agency rules under a 1984 Supreme Court decision, a process that has come to be known as "Chevron deference." Just this year, Kavanaugh dissented from a U.S. Court of Appeals for the District of Columbia Circuit ruling that upheld the structure of the Consumer Financial Protection Bureau, an independent agency created by Congress in 2010 in the wake of the financial crisis on Wall Street. He called such agencies "a headless fourth branch of the U.S. Government" that "hold enormous power over the economic and social life of the United States." Protecting the president For a primary author of independent counsel Kenneth Starr's occasionally explicit report detailing Clinton's transgressions, Kavanaugh traveled a long way to his 2009 article in the Minnesota Law Review recommending that presidents be free from prosecution. "This is not something I necessarily thought in the 1980s or 1990s," he wrote. But "looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots." Kavanaugh did not suggest that judges treat presidents differently, however. He said Congress should pass a law providing that civil suits and criminal investigations be deferred while the president is in office. If the president acts "dastardly," he said, "the impeachment process is available." The law review article – which also included recommendations for making agencies more accountable to the president and, interestingly, streamlining the judicial confirmation process – is certain to be a focus when Kavanaugh goes before the Senate Judiciary Committee later this summer or fall. Former Attorney General Alberto Gonzales, who supervised Kavanaugh in the White House counsel's office, said the nominee is "probably right" that a sitting president should be immune from indictment and prosecution while in office. "If appointed and this issue were to come before the court, I think it likely Brett would recuse on this issue," Gonzales said. 'Enormous concentration of power' In hundreds of opinions and dissents at the powerful appeals court, Kavanaugh has backed the president's national security powers and has defended the use of military tribunals for terrorism suspects. “Especially on national-security-related areas, he is likely to be with the more pro-executive power folks on the current court,” said Jonathan Adler, an expert on administrative law at Case Western Reserve University School of Law. That would not represent much of a change at the high court, where conservative justices usually support the president on matters involving national security. Just last month, the court ruled 5-4 – with retiring Justice Anthony Kennedy in the majority – that Trump acted legally and constitutionally in banning travelers from five predominantly Muslim nations. On domestic issues, Kavanaugh often rules against federal agencies seeking to regulate commerce and industry. A recent example was his 2017 dissent from the appeals court's decision not to hear a challenge to the government's "net neutrality" rule, which sought to block internet service providers from offering faster access to some customers. The Federal Communications Commission reversed the rule this year. His support for a "unitary executive" model of government, in which the president wields more power, worries some conservatives in an era when those powers have expanded to areas such as immigration and the war on drugs. “Such an enormous concentration of power is dangerous," says Ilya Somin, a law professor at George Mason University's Antonin Scalia Law School. "It enables one person to dictate how all kinds of things are regulated and controlled." Contributing: Nicole Gaudiano and Deirdre Shesgreen<doc-sep>At Brett Kavanaugh’s Supreme Court nomination ceremony Monday night, the Trump nominee told the country little about his actual views on the law. Naturally, Kavanaugh paid lip service to textualism and originalism, the faddish interpretive theories that currently dominate the conservative legal academy. But his substantive musings were limited to a suggestion that he, like Justice Anthony Kennedy before him, would devote his career to “securing liberty.” As slight as this statement might seem, it may have been the only illuminating part of the whole Kabuki theater. Kavanaugh’s promise is entirely in line with the jurisprudence that he has laid out during his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit. The judge is prone to wax poetic about liberty—then selectively apply this constitutional value in a manner that aligns perfectly with the Republican Party platform. Liberty for undocumented minors and Guantanamo detainees? No. Liberty for predatory lenders, industrial polluters, telecom monopolies, religious employers, Abu Ghraib abusers, and assault-weapon enthusiasts? Absolutely. Kavanaugh’s record exposes a judge eager to impose his conservative policy preferences upon the country under the guise of constitutional law. In other words, he is the perfect nominee to accelerate the Supreme Court’s slide into a new Lochner era of systematic judicial assaults on financial regulations, gun safety laws, environmental protections, and organized labor. Advertisement Advertisement Advertisement At his confirmation hearings to the D.C. Circuit, Kavanaugh disavowed the infamous Lochner ruling in a prickly exchange with Sen. Chuck Schumer. The 1905 decision, in which the Supreme Court struck down New York’s maximum-hour rule for bakery employees, remains the most notorious case of a 40-year period during which the court invalidated all manner of progressive legislation. Health and safety regulations, minimum wage laws, and federal limits on child labor all fell in the Lochner era, under the theory that workers have a constitutional “liberty of contract” to sell their labor under any conditions, and the federal government has little authority to regulate business. During his hearing, Kavanaugh disavowed Lochner, calling it a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.” Advertisement Kavanaugh has illustrated a similar indifference toward mass-shooting survivors. Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices. In a ghastly 2009 decision, he cast the decisive vote blocking lawsuits by Iraqis who claim to have been beaten, electrocuted, and raped by private contractors at Abu Ghraib prison. No federal statute shields contractors from civil suits under state law. Yet the majority concocted a “federal common law” to protect private contractors, then used this fabricated rule—derived from no statute or constitutional provision—to toss out the victims’ claims. In a seething dissent, Judge Merrick Garland castigated his colleagues for deploying a “vague and amorphous” standard to write their “policy concerns” into law. The ruling was Lochner on an international scale, with devastating consequences for torture victims. Advertisement Advertisement Kavanaugh has illustrated a similar indifference toward mass-shooting survivors and a fervor to safeguard gun sellers as vigorously as he defended violent military contractors. In a 2011 dissent, Kavanaugh declared that D.C.’s ban on assault weapons and high-capacity magazines ran afoul of the Second Amendment. The district contended that the ban would save lives, since these firearms are disproportionately used to shoot dozens of people in just minutes. Kavanaugh, however, claimed that the government may not prohibit semi-automatic rifles under the Supreme Court’s decision in D.C. v. Heller, which struck down D.C.’s ban on semi-automatic handguns. Bizarrely, Kavanaugh proclaimed that there “is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.” Really? As the Trace’s Alex Yablon has pointed out, the most common semi-automatic handgun bullet exits the muzzle with 300­–400 foot-pounds of kinetic energy—while the most common semi-automatic rifle bullet exits the barrel with up to 1,600 foot-pounds of kinetic energy. As survivors of the Parkland, Florida, mass shooting know, the bullets of assault weapons are far more devastating to the human body. An ER doctor who treated these patients explained that, unlike handgun bullets, this high-velocity ammunition leaves “a swath of tissue damage that extends several inches from its path. It does not have to actually hit an artery to damage it and cause catastrophic bleeding. Exit wounds can be the size of an orange.” Advertisement Advertisement Yet to Kavanaugh, the astonishing lethality of these weapons as compared to handguns did not justify the district’s ban. And he didn’t stop there: He also would’ve struck down a straightforward law directing gun owners to register their weapons with the government. Neither of these positions can be plausibly derived from the Supreme Court’s ruling in Heller. Instead, they appear to be a reflection of Kavanaugh’s personal belief that mass shootings are simply the price we pay for liberty. In a quartet of opinions issued over the past few years, Kavanaugh cemented his position as a judge keen to defend corporations with Lochner-esque zeal. In 2015, he dissented from a decision holding that the Obama administration could ask religious employers to exempt themselves from the contraceptive mandate by simply signing a sheet of paper. Compelling companies to sign this form, Kavanaugh asserted, violated their religious liberty under federal law, because it made them “complicit in facilitating contraception.” Two months later, he wrote an opinion blocking new limits on air pollution that cross state lines—a sequel to an earlier, more sweeping ruling in which Kavanaugh struck down federal regulations of cross-state emissions, only to be reversed by the Supreme Court. Advertisement Advertisement Then, in 2017, Kavanaugh struck his most radical stance yet: He proclaimed that net neutrality violates the First Amendment. In a lone dissent, Kavanaugh compared internet service providers to “publishers, newspapers, and pamphleteers” who apply “editorial discretion” to their content. Internet service providers, Kavanaugh wrote, have a free-speech right to throttle the websites of their competitors, just as newspaper editors have a right to select their preferred op-eds.<doc-sep>He maintained that the government was within its bounds to choose a transfer to a sponsor instead of “forcing the minor to make the decision in an isolated detention camp with no support network available.” Judge Kavanaugh accused the majority of wrongly inventing “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said that barred the government from intervening to connect minors with their immigration sponsors before making such a serious life decision. “The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” he wrote. Religion Judge Kavanaugh disagreed with his colleagues in a 2015 case about a part of the Affordable Care Act that required insurers to cover contraception. Under the law, employers must provide insurance to their workers or pay a fine. But employers who oppose contraception on religious grounds can bypass the requirement by submitting a form to their insurers, which then cover the workers’ contraception at no expense to the employers. Some religious organizations challenged that arrangement, contending that even submitting the form made them complicit in providing contraception. An appeals court panel rejected their argument, and the full appeals court decided not to rehear it — over Judge Kavanaugh’s objections. Forcing employers to submit the form violated their religious liberty, he wrote, though he acknowledged a Supreme Court precedent that strongly suggested that the government “has a compelling interest in facilitating access to contraception for the employees of these religious organizations.” The same outcome could be achieved, he contended, if employers instead only had to notify the government of their objections and let the government deal with the insurers. Separately, in a 2010 case, some atheists challenged the saying of a prayer at presidential inaugurations and the phrase “so help me God” in the presidential oath of office. A three-judge panel dismissed the lawsuit. But while the other two judges merely said the plaintiffs had no standing, Judge Kavanaugh weighed in on the merits. He upheld the practice as constitutional, citing the principle that government-sponsored religious speech or prayer at public events where prayers were traditionally said do not violate the First Amendment’s prohibition on establishment of religion, so long as the prayers are “not proselytizing (seeking to convert) or otherwise exploitative.”<doc-sep>WASHINGTON, DC - JUNE 26: U.S. Sen. Susan Collins (R-ME) attends a lunch meeting for Republican lawmakers in the Cabinet Room at the White House June 26, 2018 in Washington, DC. The president called the Supreme Court's 5-4 ruling in favor of the administration's travel ban a "tremendous victory," according to published reports. (Photo by Al Drago-Pool/Getty Images) Neil Gorsuch, U.S. Supreme Court nominee for U.S. President Donald Trump, is sworn in during a Senate Judiciary Committee confirmation hearing in Washington, D.C., U.S., on Monday, March 20, 2017. Gorsuch goes before a Senate committee as a heavy favorite, given Republican control, to win confirmation to a lifetime seat on the nations highest court. Photographer: Andrew Harrer/Bloomberg via Getty Images Justices of the US Supreme Court sit for their official group photo at the Supreme Court in Washington, DC, on June 1, 2017. Seated (L-R): Associate Justices Ruth Bader Ginsburg and Anthony M. Kennedy, Chief Justice of the US John G. Roberts, Associate Justices Clarence Thomas and Stephen Breyer. Standing (L-R): Associate Justices Elena Kagan, Samuel Alito Jr., Sonia Sotomayor and Neil Gorsuch. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images) WASHINGTON, DC - AUGUST 15: Supreme Court Justice nominee Judge Brett Kavanaugh walks to a meeting with Se. Joe Donnelly (R-IN) on August 15, 2018 in Washington, DC. Kavanaugh is meeting with members of the Senate after U.S. President Donald Trump nominated him to succeed retiring Supreme Court Associate Justice Anthony Kennedy. (Photo by Mark Wilson/Getty Images) UNITED STATES - MAY 09: Brett Kavanaugh is sowrn-in at a Senate Judiciary Committee hearing on his nomination to be U. S. Circuit Judge for the Ninth Circuit. (Photo By Chris Maddaloni/Roll Call/Getty Images) Editor’s Note: Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review. The views expressed in this commentary are solely his. (CNN) — Brett Kavanaugh is Donald Trump’s nominee to fill Justice Anthony Kennedy’s “swing” seat on the Supreme Court, known as such for how often his vote was the deciding one on behalf of either the liberal or conservative cohorts of the court on issues ranging from same-sex marriage to the travel ban. c/o Cato Institute Trevor Burrus With the Kavanaugh pick, many on the left are now concerned that a more conservative Supreme Court could result in harm to civil liberties and the rolling back of federal programs. While those concerns are not unreasonable, they shouldn’t be apocalyptic. The reality is that gay marriage isn’t going anywhere, Roe v. Wade will probably not be overturned, and a court with a Justice Kavanaugh could help rein in an executive branch that has become too powerful. I am a libertarian, and Kennedy’s votes aligned with my philosophy more often than any other justice’s – albeit often accompanied by somewhat inscrutable judicial opinions. In addition to his stalwart defenses of free speech (Texas v. Johnson) and federalism (NFIB v. Sebelius) Kennedy was the swing vote in all the major gay rights cases of the past 25 years. When Kennedy arrived on the bench in 1987, same-sex intimacy was illegal in many parts of the country. When he left, gay marriage was legal everywhere. That’s a legacy for which he will be justly celebrated. Yet Kennedy did not so much lead that parade rather than join it. The growing social acceptance of gay rights is one of the great civil rights stories of all time, and it didn’t happen because the Supreme Court told us to do it. According to Pew, in 2001, 57% of Americans opposed gay marriage; in 2017 only 32% did. Those numbers matter to justices, even ones like Kavanaugh. Disrupting expectations and going against widespread public opinion is not something that any justice is likely to do. Overturning gay marriage would require invalidating hundreds of thousands of marriages, and it would wreak havoc with tax statuses, inheritances, property ownership and dozens of other legal relationships that extend from marriage. Moreover, overturning gay marriage would cause public opinion to shift against the Supreme Court, imperiling the legitimacy of an institution that depends upon the perception of legitimacy to function effectively. According to Gallup, the court hasn’t had an approval rating over 50% since 2010. While justices should theoretically do their jobs without concern for public opinion, all the justices are aware that the court could suffer lasting institutional damage if public opinion falls to a level like Congress’ dismal 19% approval rating. No one is more aware of that than Chief Justice John Roberts, and there’s no justice on the court that Kavanaugh resembles more than Roberts. Roberts’ controversial vote upholding the Affordable Care Act could be explained as a vote to preserve the perceived legitimacy of the court. And, despite voting against gay marriage in Obergefell, Roberts joined a subsequent six-justice majority in smacking down the Arkansas Supreme Court when it seemed to be dragging its feet on implementing the decision. Obergefell was the law, even if he didn’t vote for it, and Roberts thought it important that the court — his court — clearly tell the lower courts to follow it. Even more conservative justices, such as the liberal bête noire Justice Antonin Scalia, were reticent to overturn settled precedent, disrupt expectations, and imperil the legitimacy of the court. Scalia had a theory that some precedents, even if wrong in his view, were so thoroughly a part of our law that justices shouldn’t overturn them. As he quipped, “I am an originalist, not a nut.” Kavanaugh is a judge who adheres to a similar mantra. For all these reasons, Roe v. Wade is likely not in peril, either. Recent public opinion polls show that 57% of Americans believe abortion should be legal in all or most cases. Kavanaugh is perhaps the most mainstream conservative of any judge that Trump could have picked, and Scalia’s philosophy of judicial restraint has become mainstream conservative thinking. Roe is likely safe. So, if Roe and Obergefell are safe, what positives might we see from a more conservative court?<doc-sep>
Supreme Court Justice nominee Judge Brett Kavanaugh meets with Senator Rob Portman on Capitol Hill, July 11, 2018. (Leah Millis/Reuters) He did not ‘try and prevent’ an alien girl from having an abortion; he simply applied the law as written. Since Justice Anthony Kennedy announced his retirement from the Supreme Court late last month, abortion activists and liberal politicians and pundits have warned that President Donald Trump’s pick will put Roe v. Wade at risk. Now that liberals have a name to put on the protest placards, the attacks are focused on the record of Trump’s nominee, Brett Kavanaugh. Within hours of Trump’s Monday-night announcement that he had selected the D.C. Circuit Court of Appeals judge to fill the high-court vacancy, the barrage had begun. Planned Parenthood issued a press release demanding the Senate reject Trump’s nominee, claiming that: Judge Kavanaugh has already ruled to limit access to safe, legal abortion — just last year, he used his judicial power to try and prevent a young, undocumented woman in U.S. custody from accessing the safe, legal abortion she had asked for. In fact, Kavanaugh would have allowed the government to delay the young woman’s abortion by more than one month, pushing her pregnancy into the second trimester. Fortunately, the full court on which Kavanaugh sits intervened and allowed the young woman to access the health care she needed. Senator Kamala D. Harris likewise declared her opposition to the Trump nominee in a press release but proved more circumspect in naming abortion as the reason: Judge Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist. As recently as last year, he disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman. That ruling was overturned by a sitting of all the judges on his court. Behind Harris’ “health care” euphemism, however, lies the same unnamed case highlighted by Planned Parenthood — Garza v. Hargan — and the same deceptive talking points pushed by the nation’s largest abortion provider. Unless dispelled, the Left’s false narrative of Kavanaugh’s Garza decision will quickly take hold in the public’s conscious. So let’s set the record straight. The Garza case first made headlines in October 2017, when the ACLU filed suit against the Trump administration on behalf of Jane Doe, represented at the time by her guardian, Rochelle Garza. Doe, an unaccompanied pregnant minor from Central America illegally present in the United States, sought release from the federal shelter where she was being detained to obtain an abortion. The government, through Eric Hargan, the acting secretary of the Department of Health and Human Services, maintained it had no obligation to facilitate Doe’s abortion, stressing that Doe had the option of returning to her native country or, alternatively, being released to a sponsor. The government maintained it had no obligation to facilitate Doe’s abortion, stressing that Doe had the option of returning to her native country or, alternatively, being released to a sponsor. A federal trial judge ruled in Doe’s favor, finding that the government’s refusal to release a minor from custody constituted an “undue burden” on Doe’s constitutional right to an abortion. The Trump administration appealed to the D.C. Circuit, and on appeal, Judge Kavanaugh authored the majority opinion reversing the lower court’s decision. The majority opinion began by assuming an illegal alien detained at the border holds a constitutional right to an abortion under Roe and Planned Parenthood v. Casey. The Hargan majority then analyzed the government’s position — that the constitution did not require the government to facilitate Doe’s abortion, because Doe had the option of returning home or being placed with a sponsor. While no sponsor had been found to date, the government represented to the federal appellate court that it had identified a potential sponsor for Doe. Writing for the court, Kavanaugh concluded that “so long as the process of securing a sponsor to whom the minor is released occurs expeditiously,” the government does not unduly burden the minor’s right to an abortion under Roe and Casey. The opinion then gave HHS twelve days to release Doe to a sponsor. The ACLU immediately asked the full D.C. Circuit to reconsider the Garza holding, and without hearing argument in the case, the full court rejected Judge Kavanaugh’s view and ordered the government to immediately release Doe to obtain an abortion. Kavanaugh dissented from the full court decision, and two other circuit-court judges joined his dissent.