Moderating Force as a Lawyer, a Conservative Stalwart as a Judge

WASHINGTON — Brett Michael Kavanaugh was just 38 when he was first nominated to a federal appeals court in Washington. But he had already participated in an extraordinary number of political controversies, attracting powerful patrons and critics along the way.

He served under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton, examining the suicide of Vincent W. Foster Jr., the deputy White House counsel, and drafting parts of the report that led to Clinton’s impeachment. He worked on the 2000 Florida recount litigations that ended in a Supreme Court decision handing the presidency to George W. Bush. And he served as a White House lawyer and staff secretary to Bush, working on the selection of federal judges and legal issues arising from the Sept. 11, 2001, attacks.

He was “the Zelig of young Republican lawyers,” Sen. Chuck Schumer, D-N.Y., said at Kavanaugh’s first confirmation hearing, in 2004. “If there has been a partisan political fight that needed a good lawyer in the last decade, Brett Kavanaugh was probably there.”

But Kavanaugh, 53, has also formed lifelong friendships with liberals, many of whom praise his intellect and civility. In his professional life, before he became a judge, he was often a moderating force.

Working for Starr, Kavanaugh concluded that Foster had in fact killed himself. He opposed the public release of the narrative portions of Starr’s report detailing Clinton’s encounters with a White House intern. As staff secretary to Bush, he said in 2006, he strived to be “an honest broker for the president.”

As a judge, though, he has been a conservative powerhouse, issuing around 300 opinions. His dissents have often led to Supreme Court appeals, and the justices have repeatedly embraced the positions set out in Kavanaugh’s opinions.

He has written countless decisions applauded by conservatives on topics including the Second Amendment, religious freedom and campaign finance. But they have particularly welcomed his vigorous opinions hostile to administrative agencies, a central concern of the modern conservative legal movement.

In a dissent in January from a decision upholding the structure of the Consumer Financial Protection Bureau, he issued a ringing endorsement of executive power.

“To prevent tyranny and protect individual liberty, the framers of the Constitution separated the legislative, executive and judicial powers of the new national government,” Kavanaugh wrote. “To further safeguard liberty, the framers insisted upon accountability for the exercise of executive power. The framers lodged full responsibility for the executive power in a president of the United States, who is elected by and accountable to the people.”

John G. Malcolm, a lawyer with the Heritage Foundation, a conservative group, said the decision was emblematic of a judicial career.

“He is a thoughtful, strategic judge who has over time moved the direction of the law in a conservative direction, and he has done it with scalpel-like precision,” Malcolm said. “This is a conservative judge who has written textualist, originalist opinions in a whole host of areas.”

Born in Washington, the son of two lawyers and the graduate of one of its elite private high schools, Georgetown Preparatory School, Kavanaugh is in many ways a creature of the city Republicans like to deplore.

After seven years at Yale, where he went to college and law school, he returned here for a varied career that included stints in the Justice Department, the independent counsel’s office, a private law firm and the White House before joining the U.S. Court of Appeals for the District of Columbia Circuit. Along the way, he married the former Ashley Estes, who served as personal secretary to Bush. They have two daughters.

But people who have worked with Kavanaugh say he has little use for Washington pomp. “Whatever the opposite of a Georgetown cocktail party person is, that’s what Judge Kavanaugh is,” said Justin Walker, a law professor at the University of Louisville who worked as a law clerk for both Kavanaugh and Kennedy. “He’d much rather have a beer and watch a hockey game.”

“I never see him prouder,” Walker added, “than when I see him talk about coaching girls’ basketball.” His father, E. Edward Kavanaugh, was for more than two decades president of the Cosmetic, Toiletry and Fragrance Association, a trade group, but Brett Kavanaugh has said that it was his mother, Martha Kavanaugh, who “has had a profound influence on my career choices.”

Martha Kavanaugh was a public high school teacher in Washington before going to law school, becoming a state prosecutor and then a state trial judge. “She’s instilled in me a commitment to public service and a respect for the rule of law that I’ve tried to follow throughout my career,” Brett Kavanaugh said at his 2006 confirmation hearing.

While a law student at Yale, Kavanaugh published a law review article proposing a way to strengthen protections against race discrimination in jury selection.

After law school, he served as a law clerk to three judges: Walter Stapleton of the 3rd Circuit, which is based in Philadelphia; Alex Kozinski of the 9th Circuit, in San Francisco; and Kennedy, whom Kavanaugh hopes to replace.

During that last clerkship, Kavanaugh again overlapped with a young Neil Gorsuch, who had been hired by a retired member of the court, Justice Byron White, and also worked part-time in Kennedy’s chambers.

No Supreme Court justice has had more than one former law clerk join the court. If Kavanaugh’s nomination is successful, two of Kennedy’s clerks from a single term will serve together, probably for decades. Kavanaugh also showed his loyalty to another former Kennedy clerk, Richard Cordray.

Before he joined the bench, Kavanaugh made around $6,000 in contributions to political candidates, all but one of them Republican. The exception was Cordray, who received a $250 contribution for his unsuccessful 1998 campaign to become Ohio’s attorney general and $1,000 for a failed bid in 2000 for the Senate. Cordray, who also worked with Kavanaugh at Kirkland & Ellis, went on to become director of Consumer Financial Protection Bureau, the agency Kavanaugh later voted against, and is now running for governor of Ohio.

Years later, Kennedy still spoke with admiration verging on awe of the young Brett Kavanaugh’s work ethic, Walker said, recounting the justice’s words: “Brett was always there the first thing in the morning before I came in and last thing at night when I was leaving. I’d say, ‘Brett, you’re working too hard. You’ve got to go home.’ But he would never listen to me.” Kavanaugh’s only appearance as a lawyer before the Supreme Court was an attempt to obtain the notes of a lawyer for Foster. He argued that the attorney-client privilege had ended when Foster killed himself, and lost by a 6-3 vote.

Kavanaugh wrote large parts of Starr’s 1998 report to Congress, though he has said that he did not draft its narrative portion, which included many explicit details of Clinton’s sexual encounters with a White House intern, Monica Lewinsky.

He has acknowledged authorship of parts of the report that suggested possible grounds for impeachment, including “areas where the president may have made false statements or otherwise obstructed justice.” Some of those grounds have echoes in Robert Mueller’s investigation of Trump.

After the Clinton investigation and impeachment proceedings concluded but before Trump entered politics, Kavanaugh came to have doubts about the wisdom of criminal investigations of presidents while they are in office.

“Whether the Constitution allows indictment of a sitting president is debatable,” Kavanaugh wrote in a 1998 law review article.

His later work as an aide to Bush also helped shape his views, he wrote in another law review article.

“My chief takeaway from working in the White House for 5 1/2 years — and particularly from my nearly three years of work as staff secretary, when I was fortunate to travel the country and the world with President Bush — is that the job of president is far more difficult than any other civilian position in government,” he wrote.

He concluded that sitting presidents should not be distracted by civil suits or criminal proceedings. “A president who is concerned about an ongoing criminal investigation,” he wrote, “is almost inevitably going to do a worse job as president.”

Kavanaugh said the proceedings could resume after a president left office and that impeachment remained an option.

Kavanaugh’s first nomination to the U.S. Court of Appeals for the District of Columbia Circuit stalled in the Senate, but he was confirmed after Bush renominated him in 2006.

The court is generally considered the second most important, but its docket is idiosyncratic and heavily weighted toward administrative law, which can be extraordinarily complex. In his opinions, Kavanaugh has often been skeptical of government regulations, notably in the area of environmental law, and he has argued in favor of greater judicial power in reviewing the actions of administrative agencies on major questions.

In 2011, Kavanaugh dissented from a decision upholding President Barack Obama’s health care law, but he did so on jurisdictional grounds.

At a 2016 argument over Obama’s climate change regulations, he indicated that environmental policy should be decided by Congress rather than the courts.

“The policy is laudable,” he said. “The earth is warming. Humans are contributing. I understand the international impact and the problem of the commons. The pope’s involved. And I understand the frustration with Congress.”

But he added: “If Congress does this, they can account for the people who lose their jobs. If we do this, we can’t.”

He has also been open to using the First Amendment to strike down government regulations. Dissenting from the full District of Columbia Circuit’s decision not to rehear a three-judge panel’s decision upholding the Obama administration’s “net neutrality” regulations, he said the government can no more tell internet service providers what content to carry than it can tell bookstores what books they can sell.

“The net neutrality rule is unlawful,” he wrote, “because the rule impermissibly infringes on the internet service providers’ editorial discretion.”

His opinions on abortion rights, religious exemptions and Obama’s health care law shared a common quality: they were all conservative but none took an absolutist position.

Last year, he dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.

But Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.

In 2015, he dissented from the court’s decision not to rehear a three-judge panel’s decision upholding an accommodation offered by the Obama administration to religious groups with objections to providing contraception coverage to their female workers.

He agreed that “the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.” But he said the government had other ways of achieving that goal.