Our top story on Midday edition Brett Kavanaugh was reported to be President Trump's top contender for a Supreme Court nomination. Those reports turned out to be right. The president announced his nomination last night. Judge Kavanaugh has impeccable credentials unsurpassed qualifications and a proven commitment to equal justice under the law. A graduate of Yale College and Yale Law School Judge Kavanaugh currently teaches at Harvard Yale and Georgetown throughout legal circles. He is considered a judge's judge. A true thought leader among his peers he's a brilliant jurist with a clear and effective writing style universally regarded as one of the finest and sharpest legal minds of our time the 53 year old Kavana is currently a federal appeals court judge. Senate Republicans say they are determined to get him confirmed to the Supreme Court by the time the next court term starts in October. I spoke about the nomination of Brett Kavanaugh with San Diego attorney and legal analyst Dan Eaton. Dan welcome to the program. Thank you Maureen. Good to be with you. Now this nominee's previous rulings and decisions are being scrutinized with a fine tooth comb. What stands out for you. Maureen he's got a very long paper trail. Some of the rulings that stand out to me are a decision that he made last year in a case called Garza involving a pregnant undocumented teen immigrant who sought an abortion. What Judge Kavanaugh said in a ruling that ultimately was rejected by a majority of his full court the D.C. Circuit. What's it allowing time for the government to find a sponsor. Because the government was blocking her access to an abortion wouldn't constitute an undue burden on her right to an abortion. And the majority rejected that. Ultimately the case was moot when through no action by the government. The teen got an abortion anyway. There is another case actually that runs the other way a 2013 employment case in which Judge Kavanaugh ruled that the use of the N word by a supervisor of a black employee was sufficient by itself to constitute the kind of pervasive racially hostile environment that gives rise to a claim under the federal employment discrimination law. All of those issues and a variety of others including immigration detention of terrorists are the kinds of issues that you will see come up again and again in his confirmation hearings. Do you see similarities between Brett Kavanaugh and President Trumps previous nominee Neil Gorsuch in their approach to cases. The answer is yes. But there's also striking similarity in their backgrounds. They both went to the same prep school Georgetown Preparatory School in Washington D.C. both have Ivy League degrees. Both Justice Gorsuch and Judge Kavanaugh also are textualists. They're going to look at the law as it's written and not put their policy preferences into the law. Now with the filibuster gone as an option for the minority party all the Democratic senators have left is the ability to question this nominee during confirmation hearings. What do you think those questions might focus on. Well among other things this is going to be a very interesting discussion on a couple of things. First the impeachment issue. Interestingly Judge Kavanaugh was part of Ken Starr's staff and the independent counsel that investigated Bill Clinton and he actually wrote a good part of the Starr report. He later said though that he didn't think that it was appropriate for a president to be subject to criminal investigation while he's in office because necessarily a president is going to do a worse job when he is subject to criminal investigation. It's a big job. That's a lesson Brett Kavanaugh said he learned when he worked for Bush in the White House first in the counsel's office and then his staff secretary. A lot of this is going to be about the separation of powers the ability of the president to be investigated and some of the impeachment issues that Brett Kavanaugh has written in both his judicial and his extra judicial writings. Now Senate Majority Leader Mitch McConnell was sort of pushing for one of the two other finalists judge Hardiman and Judge Catholic because it said he that he believed they would get through the Senate confirmation process easier. Do you think it'll be harder to get Kavanaugh through the Senate confirmation. Well read his long paper trail as both his greatest strength and his greatest weakness. Remember it's fascinating this is the same seat that Justice Kennedy ultimately held. But he was the third choice after Bork. And remember Robert Bork was a conservative judge who had a very very long paper trail both on the court and in a scholarly writings and the lesson from that was no more long paper trails. But George H.W. Bush is a conservative scholars overcorrected and appoint to Justice Souter who had only been on the first circuit for about a year. So then the cry came out no more Souters so get a long record. It's interesting the fact that Judge Kavanaugh has such a long paper trail is going to give the opponents an awful lot to poke at in the Judiciary Committee. But it's also gives supporters of his an awful lot to cheer about because they're confident when he gets on the court there aren't going to be any surprises. If Judge Kavanaugh is confirmed how do you think a more conservative court could rule in the big cases coming up before the Supreme Court next year. Well you see the big cases that are coming up I looked at actually the roughly thirty seven thirty eight cases for which a court is already granted review and there are only a couple of its stand out to me. One is going to be heard the second day the court is in session October 2nd which is the case called Madison versus Alabama in which the question is whether it's cruel and unusual punishment under the Eighth Amendment to execute a prisoner whose mental disability leaves him with no memory having committed his capital offense or the circumstances of his scheduled execution. The Eighth Amendment issues like that the detention of immigrants who are released from criminal custody are not immediately detained by the Department of Homeland Security. Those are the kinds of hot button issue so far that the court has accepted but if they're confident they're going to be at full strength expect that the court will add a few more blockbuster rulings to this term. How confident are you that they are going to be at full strength. What's the process from here now that Brett Kavanaugh has been nominated starting today more even as we speak. Brett Kavanaugh is making courtesy visits to the members of the Judiciary Committee first and then other members of the Senate to call on. Then as you said they're going to go through his record with a fine tooth comb in fact that process already started because we already knew what some of the finalists were. After that you're going to have hearings that are going to attract an awful lot of attention. And then says Mitch McConnell there is going to be a vote sometime this fall. The question is whether the Democrats are going to be able to delay that until after the midterm elections and whether the pendency of the midterms elections will affect the vote of some very red state senators who are up for re-election like Senator Donnelly of Indiana. I've been speaking with Dan Eaton legal analyst and an attorney with Selsor Captain Mann and via tech. Dan thank you so much. Thank you Maureen.
Over a dozen years as a judge on the federal appeals court in Washington, D.C., Brett Kavanaugh has weighed in on controversial cases involving guns, abortion, health care and religious liberty.
But after Kavanaugh emerged on President Trump's shortlist for the Supreme Court, a suggestion the judge made in a 2009 law review article swiftly took center stage:
"Provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations," Kavanaugh proposed.
The judge emphasized that no one is above the law, but he pointed out that the Constitution already provides a solution if there's a scoundrel in the White House.
"If the president does something dastardly, the impeachment process is available," he wrote.
That matters now — especially to Democrats mulling whether to oppose Kavanaugh's nomination to the highest court in the nation — because Trump is facing a special counsel probe into Russian election interference in 2016 and whether anyone in Trump campaign took part.
Conservative star
Kavanaugh already has checked virtually every box in the conservative legal establishment at only 53 years old.
From serving as a clerk to Justice Anthony Kennedy, whose shoes he's in line to fill on the Supreme Court, Kavanaugh went on to serve as an aide to Ken Starr, the independent counsel who probed President Bill Clinton's finances and his relationship with intern Monica Lewinsky.
Then, in 2000, Kavanaugh was part of an energetic pack of Republican lawyers who traveled south and worked nonstop to help then-Texas Gov. George W. Bush during the critical Florida election recount.
That service led to top posts in President Bush's White House as a lawyer and as staff secretary, the clearinghouse official who handles virtually every important document the president touches.
Years later, after the Senate confirmed him 57 to 36 for a lifetime-tenured judgeship, Kavanaugh would write in the Minnesota Law Review that the experience in the executive branch made him a better and more independent judge.
It also informed many of his rulings on executive power, where he largely has backed the president's authority to hire and fire officials at government agencies and offered his support to the White House and military commission process amid challenges from detainees.
"He has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases," according to Adam Feldman of the Empirical SCOTUS blog.
Lightning-rod issues
Left-leaning interest groups like Demand Justice have signaled they want to make the forthcoming Supreme Court confirmation hearing about two big things: abortion rights and the Affordable Care Act, the signature legislative achievement of the Obama presidency.
Kavanaugh has a record on both.
In his 2006 confirmation hearing for the D.C. Circuit, New York Democratic Sen. Charles Schumer asked Kavanaugh: "Do you consider Roe v. Wade to be an abomination?"
Kavanaugh replied: "I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court."
More recently, in a case involving a pregnant 17-year-old in immigration custody in Texas, Kavanaugh dissented from a court ruling that ordered the girl be released from detention to obtain an abortion.
Kavanaugh said the "radical" majority had essentially created 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."
On the Affordable Care Act, also known as Obamacare, Kavanaugh wrote in 2011 that a federal law known as the Anti-Injunction Act, which covers tax issues, meant that the court lacked the ability to consider whether the law's individual mandate violated the Constitution.
A divided Supreme Court ultimately upheld that mandate as a tax.
Never "wobbly"
Justin Walker, a law professor at the University of Louisville who clerked for both Kavanaugh and Kennedy, said Kavanaugh will "never, ever go wobbly" and deviate from conservative principles.
Walker said Kennedy's replacement will be much more conservative, foreshadowing big changes in issues including affirmative action, school prayer and guns.
"I predict an end to affirmative action, an end to successful litigation about religious displays and prayers, an end to bans on semi-automatic rifles, and an end to almost all judicial restrictions on abortion," he said.
One measure of a judge's influence is how many of his clerks wind up working in the Supreme Court. By that measure, Kavanaugh packs a punch. His clerks routinely find themselves working at the high court, not just for Kennedy and Chief Justice John Roberts, but also for justices appointed by Democratic presidents.
In the federal courthouse in Washington, Kavanaugh has developed a reputation for cracking jokes, talking sports and showing up at events to support his colleagues.
He has likened himself to the official behind home plate calling balls and strikes.
"To be a good umpire and a good judge, don't be a jerk," Kavanaugh said in a speech three years ago. "In your opinions, demonstrate civility — to show, to help display that you're trying to make the decision impartially, dispassionately, based on the law and not based on your emotions."
Copyright 2018 NPR. To see more, visit http://www.npr.org/.
