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SCOTUS Nominee Brett Kavanaugh’s Troubling Record on the Rule of Law and the Constitution

An expansive view of presidential power that could hamstring investigations into Trump

President Trump announced Monday night that he’s nominating Judge Brett Kavanaugh to serve on the U.S. Supreme Court.

Judge Kavanaugh, 53, has significant Washington credentials. A former law clerk for retiring Justice Anthony Kennedy — the man he will now replace if confirmed — Judge Kavanaugh worked with Ken Starr at the Office of Independent Counsel, where he helped write the 1998 Starr Report, which outlined grounds for the impeachment of President Bill Clinton over issues stemming from his affair with Monica Lewinsky. Judge Kavanaugh later worked as a lawyer in the George W. Bush White House. Since 2006, he has served on the U.S. Court of Appeals for the D.C. Circuit.

Judge Kavanaugh has argued for an expansive view of presidential power — an approach that could hamstring the sprawling federal investigation into Russian election meddling and potential collusion by the Trump campaign, helping to undermine the rule of law at a crucial time. In 1998, Judge Kavanaugh wrote that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is ‘out to get him.’” And Judge Kavanaugh has argued that all investigations and prosecutions of the president should be deferred until out of office, so that the president can focus on the job without distractions.

Despite this, Judge Kavanaugh appears to take a restrictive view of the federal government’s regulatory authority, arguing in a dissent this year that the Consumer Financial Protection Bureau is unconstitutional, and opposing the FCC’s net neutrality rule aimed at ensuring a free and open internet. He also has consistently ruled against workers and in favor of employers on issues of discrimination and workplace safety, among others.

Judge Kavanaugh would have ruled to strike down Obamacare as unconstitutional. And last year he tried unsuccessfully to block an undocumented minor from getting an abortion, writing that allowing the procedure created a “new right … to obtain immediate abortion on demand.”


© 2021 Brennan Center for Justice

Zachary Roth

Zachary Roth directs editorial and social strategy for the Brennan Center. A former national reporter at MSNBC, he is the author of The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy (Crown), which was the runner-up for the 2017 J. Anthony Lukas Prize awarded by Columbia Journalism School and the Harvard Neiman Foundation. He has written for the The New York Times, The Los Angeles Times, The Atlantic, The New Republic, Slate, Salon, and other outlets.

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