Bench Memos

Law & the Courts

Who Is Judge Brett Kavanaugh?

President Trump shakes hands with Supreme Court nominee Brett Kavanaugh at the White House, July 9, 2018. (Leah Millis/Reuters)

Judge Brett Kavanaugh is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 53

Current Position: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit (Washington, D.C.)

Education:

  • B.A., Yale College (1987)
  • J.D., Yale Law School (1990); Notes Editor, Yale Law Review

Judicial Clerkships: Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit (1990-91); Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (1991-92); Associate Justice Anthony M. Kennedy of the U.S. Supreme Court (1993-94)

Experience:

  • 1992-1993: Bristow Fellow, Office of the Solicitor General, U.S. Department of Justice (Washington, D.C.)
  • 1994-1997, 1998: Associate Counsel, Office of Independent Counsel Kenneth W. Starr (Washington, D.C.)
  • 1997-1998, 1999-2000: Partner, Kirkland & Ellis LLP (Washington, D.C.)
  • 2003-2006: Assistant to the President and Staff Secretary to the President (Washington, D.C.)
  • 2006-present: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit

Notable Matters:

  • Judge Kavanaugh was nominated to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush.
  • Judge Kavanaugh has taught courses at Harvard Law School, Yale Law School, and Georgetown University Law Center; published scholarly articles in numerous law review and journals; and is a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States.
  • In 2012, Judge Kavanaugh wrote a dissent to the denial of rehearing en banc in Coalition for Responsible Regulation v. EPA, which involved a challenge to greenhouse gas regulations promulgated by the EPA. Judge Kavanaugh wrote that the EPA’s interpretation of the term “air pollutant” to include greenhouse gases in a provision of the Clean Air Act was inappropriately broad (“When an agency is faced with two initially plausible readings of a statutory term, but it turns out that one reading would cause absurd results, I am aware of no precedent that suggests the agency can still choose the absurd reading and then start re-writing other perfectly clear portions of the statute to try to make it all work out.”) Warning of the of the separation of powers issues implicated, Judge Kavanaugh wrote that “[a]llowing agencies to exercise that kind of statutory re-writing authority could significantly enhance the Executive Branch’s power at the expense of Congress’s and thereby alter the relative balance of powers in the administrative process.” The Supreme Court later overturned the D.C. Circuit panel decision in part, citing Judge Kavanaugh’s dissent from denial of hearing en banc. See Utility Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
  • In 2016, Judge Kavanaugh wrote the majority opinion in PHH Corp. v. Consumer Financial Protection Bureau, 839 F. 3d 1, which found the structure of the CFPB to be unconstitutional. The CFPB, an independent agency, was created by the Dodd-Frank Act. Unlike other independent agencies, which are headed by multimember commissions, the CFPB is headed by an individual director who can only be removed for cause. In his opinion for the three-judge panel, Judge Kavanaugh wrote that the CFPB’s unusual structure “lacks the critical check and structural constitutional protection” against arbitrary decision making found in agencies that are headed by multi-member commissions, and thus posed a threat to individual liberty. The D.C. Circuit granted the CFPB’s petition for rehearing en banc and is currently considering the case.

Biographical Notes: Judge Kavanaugh is originally from Bethesda, Maryland. He is married and has two daughters.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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