D.C. Circuit's Kavanaugh Not Afraid to Say No to Obama

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Patrick Gregory

April 27 — Judge Brett M. Kavanaugh saw the importance of saying “no” while working as associate counsel for President George W. Bush, he told students at Marquette Law School this month.

Being a judge on the U.S. Court of Appeals for the District of Columbia Circuit similarly requires “backbone,” he said.

A favorite of conservatives, Kavanaugh, 51, has had no trouble saying “no” to the Obama Administration on high-profile environmental matters.

A prolific “feeder judge,” Kavanaugh's clerks have been hired by more than half of current Supreme Court justices, both conservative and liberal.

Power Player

Kavanaugh's role on arguably the second most powerful court has become even more significant with the U.S. Supreme Court lacking a ninth vote after Justice Antonin Scalia's unexpected death in February.

Since then, the Supreme Court has deadlocked 4-4 in two cases, which results in an affirmance of the decision below, and has deadlocked on one issue in a third case (84 U.S.L.W. 1377, 3/24/16) (84 U.S.L.W. 1475, 4/7/16) (84 U.S.L.W. 1536, 4/21/16). With no nomination hearing on the horizon, this leaves the circuit courts of appeals with the final word on weighty issues for some time.

Further, Kavanaugh often appears on “short lists” of potential Republican Supreme Court nominees.

The Heritage Foundation, a conservative think-tank, recently advised Republican presidential candidate Donald Trump to consider Kavanaugh, according to the Washington Post.

CFPB Unconstitutional?

Kavanaugh may soon be ruling against the Obama Administration again in a big way—he recently questioned the constitutionality of the Consumer Financial Protection Bureau during oral argument in PHH Corp. v. Cons. Fin. Protection Bureau, D.C. Cir., No. 15-cv-01177, argued 4/12/16.

PHH Corp. involves a June 2015 ruling by CFPB Director Richard Cordray, which ordered PHH Corp. to pay $109 million in mortgage reinsurance premiums for violating the Real Estate Settlement Procedures Act.

Kavanaugh—who has taught a course in separation of powers at Harvard Law School—suggested the CFPB concentrates too much power in one person, over whom the president has no power.

If the D.C. Circuit rules that the CFPB is unconstitutional, it would undo an agency created by President Barack Obama's “signature reform of American finance” in the Dodd-Frank Act, according to a recent Wall Street Journal editorial.

Feeder Judge

Sixteen of Kavanaugh's clerks became Supreme Court clerks between the October Terms of 2009 and 2013, according to Keynote Address: Secret Agents: Using Law Clerks Effectively, 98 Marq. L. Rev. 151 (2014).That number tied with Kavanaugh's D.C. Circuit colleague and “good friend,” Chief Judge and Supreme Court nominee Merrick Garland (84 U.S.L.W. 1454, 4/7/16).

Justices from the court's conservative wing—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Clarence Thomas and Scalia—have all hired Kavanaugh's clerks, according to a comprehensive Wikipedia article.

But his clerks have also worked for Justices Elena Kagan and Sonia Sotomayor on the left, along with “swing vote” Justice Anthony M. Kennedy—for whom Kavanaugh himself clerked.

Executive Eye

Kavanaugh's executive branch experience gives the judge “a good B.S. detector” when dealing with the federal government in discovery disputes, he said in 2014 (83 U.S.L.W. 714, 11/11/14).

If the federal government complains that it will have to get the president's signature to provide a document, Kavanaugh said his response is “You can do that. I know for a fact the president signs lots of stuff.”

Environmental Influence

Kavanaugh has been instrumental in a number of Clean Air Act rulings against the EPA.

An opinion by Kavanaugh struck down the Environmental Protection Agency's Cross-State Air Pollution Rule in EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir.) (81 U.S.L.W. 297, 8/28/12).

Even his dissents in clean air cases have had a powerful impact.

The Supreme Court has relied on them multiple times in ruling against the agency.

A partial dissent by Kavanaugh said the EPA should have considered the industry cost impact of its air toxins and mercury standards for power plants at the beginning of its rulemaking process, in White Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014).

The Clean Air Act required the EPA to consider whether it was “appropriate” to issue those standards, Kavanaugh said.

The statutory term “appropriate” is “the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors,” including costs, Kavanaugh said.

The Supreme Court quoted that language in remanding the EPA's standards for failing to consider their costs, in a decision by Scalia in Michigan v. EPA, 83 U.S.L.W. 4620, 2015 BL 207163 (U.S. June 29, 2015).

Scalia Source

Similarly, the high court quoted a Kavanaugh dissent in another Scalia opinion that ruled against the EPA, in Utility Air Grp. v. EPA, 82 U.S.L.W. 4535, 2014 BL 172973 (U.S. June 23, 2014) (82 U.S.L.W. 1985, 6/24/14).

In Utility Air Grp., the Supreme Court found that the EPA misinterpreted the Clean Air Act in requiring stationary sources—such as power plants—to obtain “Prevention of Significant Deterioration” permits solely based on greenhouse gas emissions.

The EPA wasn't free to adopt “unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness,” the court said, quoting Kavanaugh's dissent from denial of rehearing en banc in Coal. for Responsible Regulation, Inc. v. EPA, 2012 BL 337546, D.C. Cir., No. 09-1322, rehearing denied 12/20/2012.

Bush Rule

Garland is “someone I would certainly look to for advice on things when I needed advice,” Kavanaugh said at the Marquette discussion.

The judge has avoided commenting specifically on Garland's ongoing confirmation conflict.

But the confirmation process has “been a mess for decades,” Kavanaugh said.

Kavanaugh has been a proponent of what one might call the “Bush Rule.”

Bush, who was “so humble and so genuine to other people,” is “really actually a personal role model to me,” Kavanaugh said.

Bush believed that “the Senate should come together to set rules going forward no matter who's president and no matter which party controls the Senate,” so that “every judicial nominee would get a vote within 180 days,” Kavanaugh said.

“I agree with this,” Kavanaugh said.

The judge is “a little biased on this because I helped work on it” with Bush.

But it's important “to think about rules of the road, no matter which party's in control, so that when you get in a crisis situation or in a controversy, you don't have to reinvent the rules each time, which is a real problem,” he said.

Qualifications Debated

Kavanaugh is no stranger to confirmation controversies.

It “only took me three years” after being nominated by Bush to be confirmed, “so that was not so bad,” he quipped at the Marquette discussion.

About two years after his first confirmation hearing, Republican and Democrat senators continued to debate his qualifications at a second hearing in 2006.

Sen. Arlen Specter (R-Pa.) said he was surprised to see Kavanaugh, who was then Bush's staff secretary, “characterized as not up to the job of judge” for the D.C. Circuit.

Specter noted that Kavanaugh attended Yale for both college and law school before clerking for prestigious judges including Ninth Circuit Judge Alex Kozinski.

Kavanaugh went on to work in the U.S. Solicitor General's office and Ken Starr's Office of Independent Counsel before becoming a partner at Kirkland and Ellis, Specter said.

Young, Political ‘Foot Soldier.'

But Sen. Charles Schumer (D-N.Y.) expressed concern that Kavanaugh's “several important and influential positions” in government had “been almost exclusively political.”

Schumer gave a laundry list of political controversies with which Kavanaugh had been involved.

“From the notorious Starr report” concerning the investigation of President Bill Clinton, “to the Florida recount, to the President's secrecy and privilege claims” to “ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there,” Schumer said.

Further, Kavanaugh would be the “youngest person on the D.C. Circuit since his mentor, Ken Starr” if confirmed, Schumer said.

Basketball Court

Kavanaugh's youth may help him in playing basketball with D.C. Circuit and Supreme Court clerks.

The judge manages a basketball game at the high court on an annual basis that includes both courts' clerks, according to a 2015 Greenwire story.

But Kavanaugh isn't just a manager—he and his D.C. Circuit colleague Sri Srinivasan are the only judges who play.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com