Kavanaugh Bats For, Runs With His Clerks

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By Melissa Heelan Stanzione

Supreme Court nominee Brett Kavanaugh invites all former and current clerks to a Washington Nationals game every summer. This makes sense, given that he sees the role of a judge as that of “an umpire,” much like his likely future colleague, Chief Justice John G. Roberts Jr.

President Donald Trump announced July 9 that the D.C. Circuit judge was his pick to succeed Justice Anthony M. Kennedy, who will retire at the end of the month.

Kavanaugh is independent and fair-minded and doesn’t approach cases with preconceived ideas, Jennifer Mascott told Bloomberg Law.

Mascott clerked for Kavanaugh from 2006-2007, his first year on the D.C. Circuit, and for Justice Clarence Thomas from 2008-2009. She teaches constitutional law at the George Mason University Antonin Scalia Law School in Arlington, Va.

Family Man

His former clerks say he’s meticulous and driven at work, but takes time to be there for his “family” of clerks.

He could do all his work by himself with one hand, Richard M. Re told Bloomberg Law.

But he calls clerks to his office to discuss cases “for our benefit,” Re said. Kavanaugh was demanding and had high expectations for his clerks, but he wanted to propel us forward, he said.

Re clerked for Kavanaugh from 2008-2009 and for Kennedy from 2010-2011. He teaches constitutional law at UCLA School of Law in Los Angeles.

Kavanaugh lends a hand when needed, his former clerks said.

When Travis Lenkner applied for a clerkship with Kennedy, Kavanaugh went above and beyond what was required to help him.

To say that he was a reference “would be understating his role in promoting me to Kennedy,” Lenkner told Bloomberg Law.

Lenkner clerked for him from 2007-2008 and clerked for Kennedy from 2008-2009. He’s managing partner at Keller Lenkner in Chicago.

Kavanaugh conducted mock question-and-answer sessions to prepare for the interview and offered advice on Lenkner’s word choice in his responses.

This “level of engagement and caring” was just one instance of many, Lenkner said.

Kavanaugh’s mentoring continues years after clerks have moved on. Re and Mascott said they call him when they need advice.

Dives, Runs

Kavanaugh’s engagement with his clerks extended beyond chambers.

He took them to lunch regularly, often to the now-shuttered dive, My Brothers Place, Re said.

Kavanaugh also encouraged clerks to run with him, even if they were not so inclined.

I’m not very athletic but he got me excited to run in a 10K, Re said.

Kavanaugh loves running and his enthusiasm is contagious, Indraneel Sur told Bloomberg Law.

Sur clerked for Kavanaugh from 2006-2007. He is an attorney at Gibson Dunn & Crutcher in New York.

Sur, who says he’s “by no means an expert runner,” took part in the “BK5K,” a clerk reunion 5K run that happens every five years for clerks and their families, in 2016.

He admits that he finished last but “I wanted to participate because of the energy and enthusiasm he brings to it.”

Draft King

Kavanaugh brings this same energy to his work.

He’s meticulous and detail-oriented when it comes to opinion writing, his former clerks said.

Kavanaugh will write 20-40 drafts of an opinion to make sure the law is right and that it’s described accurately and in a way that everyone can understand it, Mascott said.

Clerks would get a first stab at drafting an opinion but after all of Kavanaugh’s rewrites, there was very little of their writing left, Re said.

“I remember being thrilled at one point that a single sentence from my draft made it,” he said.

Although Kavanaugh approaches each case based on its merits, the judge’s “guiding principle” in terms of his interpretive methods is “fidelity to text,” informed by history, Lenkner said.

In that sense, Kavanaugh is a “mainstream conservative,” he said.

But he takes each case as it comes and isn’t outcome driven, Lenkner said.

He’s praised originalism in his speeches but looks at the issues in every case as they come, Mascott said.

Originalists believe that the U.S. Constitution should be interpreted according to the original intentions of the drafters.

There’s a lot of truth to claims that Kavanaugh is an originalist but the term underplays two other parts of his work, Re said.

Tradition—history beyond the founding period—and precedent are very important to him, he said.

One thing Kavanaugh doesn’t do is inject policy preferences into his rulings, Mascott said.

There’s as good a chance he’ll rule “for the little guy” as for the other party, she said.

A bipartisan group of 34 former Kavanaugh clerks sent a letter July 9 to the Senate Judiciary Committee voicing their support for his nomination to the Supreme Court.

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