Brett Kavanaugh

Brett Kavanaugh
Judge Brett Kavanaugh.jpg
Judge of the United States Court of Appeals for the District of Columbia Circuit
Assumed office
May 30, 2006
Appointed by George W. Bush
Preceded by Laurence Silberman
White House Staff Secretary
In office
June 6, 2003 – May 30, 2006
President George W. Bush
Preceded by Harriet Miers
Succeeded by Raul F. Yanes
Personal details
Born Brett Michael Kavanaugh
(1965-02-12) February 12, 1965 (age 53)
Washington, D.C.
Political party Republican
Spouse(s)
Ashley Estes (m. 2004)
Children 2[1]
Education Yale University (BA, JD)

Brett Michael Kavanaugh (/ˈkævənɔː/; born February 12, 1965) is an American attorney and jurist who serves as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

Kavanaugh graduated from Yale College cum laude, with a degree in American history, where he was a member of the fraternity Delta Kappa Epsilon. After graduating from Yale Law School, Kavanaugh began his career as a law clerk and then a postgraduate fellow working under Judge Ken Starr. After Starr left the D.C. Circuit to take the position as head of the Office of Independent Counsel, Kavanaugh followed him to the OIC, and assisted Starr with his various investigations concerning President Bill Clinton. Kavanaugh played a lead role in drafting the Starr Report, which urged the impeachment of President Bill Clinton. After the 2000 U.S. presidential election (in which Kavanaugh worked for the George W. Bush campaign in the Florida recount), Kavanaugh joined the administration as White House Staff Secretary and was a central figure in its efforts to identify and confirm judicial nominees.[2]

Kavanaugh was first nominated to the U.S. Court of Appeals for the D.C. Circuit by President Bush in 2003. His confirmation hearings were contentious; they stalled for three years over charges of partisanship. Kavanaugh was ultimately confirmed to the D.C. Circuit in May 2006 after a series of negotiations between Democratic and Republican U.S. Senators.[3][4][5] An analysis covering the period 2003–2018 found that Kavanaugh had the most or second-most conservative voting record on the D.C. Court in every policy area.[6]

To fill the vacancy created by the retirement of Associate Justice Anthony Kennedy, President Donald Trump nominated Kavanaugh on July 9, 2018, to serve as an Associate Justice of the Supreme Court of the United States. The American Bar Association (ABA) unanimously gave its highest rating to Judge Kavanaugh.[7][8] During the confirmation process, Christine Blasey Ford came forward and, through interviews to the press and statements by her attorney, alleged that in the early 1980s Kavanaugh had attempted to rape her.[9][10][11] Kavanaugh has "categorically and unequivocally" denied that the event occurred.[12][13]

Early life and education[]

Kavanaugh as a student at Yale

Kavanaugh was born on February 12, 1965, in Washington, D.C., the son of Martha Gamble (Murphy) and Everett Edward Kavanaugh Jr.[14][15] His mother was a history teacher at Woodson and McKinley high schools in Washington in the 1960s and 1970s. She earned her law degree from Washington College of Law in 1978 and served as a Maryland state Circuit Court Judge from 1995 to 2001.[16][17] His father was an attorney and served as the president of the Cosmetic, Toiletry and Fragrance Association for two decades.[18]

Kavanaugh was raised in Bethesda, Maryland. As a teenager he attended Georgetown Preparatory School, where he was two years senior to future U.S. Supreme Court Justice Neil Gorsuch.[19][20] At Georgetown Prep, he was captain of the school's basketball team and played as a wide receiver and cornerback for the school's football team.[21]

After prep school, Kavanaugh went to Yale University and majored in history.[22] Several of Kavanaugh's Yale classmates remembered him as a "serious, but not showy student" who loved sports, especially basketball.[22] He unsuccessfully tried out for the Yale Bulldogs men's basketball team, and later played for two years on the university's junior varsity team instead.[22] He also wrote articles about basketball and other sports for the Yale Daily News,[22] and was a member of the fraternity Delta Kappa Epsilon.[23] Kavanaugh graduated from Yale in 1987 with a Bachelor of Arts cum laude.[22] He remained at Yale to attend Yale Law School. During law school he lived in a dilapidated group house with future judge James E. Boasberg and became a basketball partner of Professor George L. Priest, who was the sponsor of the school's Federalist Society.[24] Kavanaugh served as a Notes Editor for the Yale Law Journal, and graduated with a Juris Doctor in 1990.[25]

Early legal career (1990–2006)[]

Brett Kavanaugh while working for the Independent Counsel in the 1990s

Kavanaugh first worked as a law clerk for Judge Walter King Stapleton of the United States Court of Appeals for the Third Circuit.[24] During Kavanaugh's clerkship, Stapleton wrote the majority opinion in Planned Parenthood v. Casey, in which the Third Circuit upheld many of Pennsylvania's abortion restrictions.[24] Priest recommended Kavanaugh to Ninth Circuit Judge Alex Kozinski, who was regarded as a feeder judge.[24] After clerking for Kozinski, Kavanaugh next interviewed for a clerkship with Chief Justice William Rehnquist on the U.S. Supreme Court, but was not offered a clerkship.[24]

Kavanaugh then earned a one-year fellowship with the Solicitor General of the United States, Ken Starr.[26] Kavanaugh next clerked for Supreme Court Justice Anthony Kennedy, working alongside his high school classmate Neil Gorsuch and with future-Judge Gary Feinerman.[19]

Kavanaugh with President George W. Bush and other White House staffers in 2001. Kavanaugh is seated directly to the left of Bush.

After his Supreme Court clerkship, Kavanaugh worked for Ken Starr again as an Associate Counsel in the Office of the Independent Counsel, where his colleagues included Rod Rosenstein and Alex Azar.[27] In that capacity, he handled a number of the novel constitutional and legal issues presented during the investigation of the death of Vincent Foster.[27][28][29] Though his investigation concluded that Foster had indeed committed suicide, Kavanaugh has been criticized for investing federal money and other resources into investigating partisan conspiracy theories surrounding the cause of Foster's death.[30][31] In Swidler & Berlin v. United States (1998), Kavanaugh argued his first and only case before the Supreme Court when he asked it to disregard attorney–client privilege in relation to the investigation of Foster's death.[32] The Supreme Court rejected Kavanaugh's arguments by a vote of 6–3.[33]

Kavanaugh was a principal author of the Starr Report to Congress on the Monica LewinskyBill Clinton sex scandal; the report called for the impeachment of President Clinton.[27] He urged Starr to ask the president sexually graphic questions and argued on broad grounds for the impeachment of Bill Clinton,[34][35] describing Clinton as being involved in "a conspiracy to obstruct justice", having "disgraced his office" and "lied to the American people".[36] The report provided extensive and explicit descriptions of each of the President's sexual encounters with Monica Lewinsky, a level of detail which the authors described as "essential" to the case against Clinton.[37][38]

Kavanaugh was later a partner at the law firm of Kirkland & Ellis.[26] While there in 2000, he was pro bono counsel of record for relatives of Elián González, a six-year-old rescued Cuban boy while Jeffery M. Leving spearheaded the amicus brief for the boy. After the boy's mother's death at sea, members of the extended family in the U.S. wanted to keep him from returning to the care of his sole surviving parent, his father in Cuba. The district court, the Circuit Court and the Supreme Court all followed precedent, refusing to block the boy's return to his home.[39] In addition, Kavanaugh authored two amicus briefs supporting religious activities and expressions in public places.[39]

After George W. Bush became president in 2001, Kavanaugh was hired as an associate by the White House Counsel, Alberto Gonzales.[24] There, Kavanaugh worked on the Enron scandal, the successful nomination of Chief Justice John Roberts, and the unsuccessful nomination of Miguel Estrada.[24] Starting in 2003, he served as Assistant to the President and White House Staff Secretary.[26] In that capacity, he was responsible for coordinating all documents to and from the president.

Tenure as U.S. Circuit Judge (2006–present)[]

Kavanaugh at his confirmation hearing in 2004

President George W. Bush first nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003, to a vacancy created by Judge Laurence Silberman, who took senior status in November 2000.[40] Kavanaugh's nomination was stalled in the Senate for nearly three years. Democratic Senators accused him of being too partisan, with Senator Dick Durbin calling him the "Forrest Gump of Republican politics".[41] In 2003, the American Bar Association rated Kavanaugh as "well qualified", but, after opposition from Senate Democrats, rated him in 2006 as only "qualified".[24] His nomination was opposed by People for the American Way.[42]

The United States Senate Committee on the Judiciary recommended confirmation on a 10–8 party-line vote on May 11, 2006,[43] and Kavanaugh was thereafter confirmed to the court by the United States Senate on May 26, 2006, by a vote of 57–36.[44][45] On June 1, 2006, he was sworn in by Justice Anthony Kennedy, for whom he had previously clerked, during a special Rose Garden ceremony at the White House.[46] Kavanaugh was the fourth judge nominated to the D.C. Circuit by Bush and confirmed by the United States Senate. Kavanaugh began hearing cases on September 11, 2006, and had his formal investiture on September 27, at the Prettyman Courthouse. His first published opinion was released on November 17, 2006.[47]

Kavanaugh being sworn in by Justice Anthony Kennedy as President George W. Bush and Kavanaugh's wife, Ashley Estes Kavanaugh, look on

In July 2007, Democratic Senators Patrick Leahy and Dick Durbin accused Kavanaugh of "misleading" the Senate Judiciary Committee during his nomination. Durbin and Leahy accused Kavanaugh of lying to them in his confirmation hearing when he denied being involved in formulating the Bush administration's detention and interrogation policies in the aftermath of the September 11 terrorist attacks. In 2002, Kavanaugh had met with other White House lawyers, and talked about whether or not the Supreme Court would approve of denying lawyers to prisoners detained as enemy combatants. Kavanaugh had previously been a law clerk for Supreme Court Justice Anthony Kennedy, and predicted in that meeting that Kennedy would not approve of denying legal counsel to those prisoners.[48] Durbin said, "It appears that you misled me, the Senate Judiciary Committee and the nation."[49] This issue re-emerged in July 2018, as Kavanaugh was under consideration for a nomination to the Supreme Court,[50] which Kavanaugh received.

Notable cases[]

The Supreme Court has adopted Kavanaugh's position on cases 13 times, and has reversed his position only once. These included cases involving environmental regulations, criminal procedure, the separation of powers and extraterritorial jurisdiction in human rights abuse cases.[24][51] He has been regarded as a feeder judge.[52]

Abortion[]

During his confirmation hearing in 2006 for the D.C. Circuit Court of Appeals, Kavanaugh stated that he considered Roe v. Wade binding under the principle of stare decisis and would follow the ruling of the higher court.[53] However, he also ruled in favor of abortion restrictions in at least one case.[54][55][56] In a 2017 speech, Kavanaugh lauded the late Chief Justice William Rehnquist for dissenting in Roe v. Wade, saying that Rehnquist believed an "unenumerated" right to abortion would have to be "rooted into the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion."[57]

In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could temporarily prevent an unaccompanied alien minor in its custody from traveling to obtain an abortion.[56] Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh dissenting.[56][58] The girl then obtained an abortion.[56] In his dissent, Linda Greenhouse says Kavanaugh criticized the majority for creating "a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand".[59] In Azar v. Garza (2018), the girl's claim was ultimately dismissed as moot after the en banc D.C. Circuit's judgment was vacated by the U.S. Supreme Court.[60]

Affordable Care Act[]

In November 2011, Kavanaugh dissented when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case.[61][62] In his dissent concerning jurisdiction, he compared the individual mandate to a tax.[63] After a unanimous panel found that the ACA did not violate the Constitution's Origination Clause in Sissel v. United States Department of Health & Human Services (2014), Kavanaugh wrote a lengthy dissent from the denial of rehearing en banc.[64][65] In May 2015, Kavanaugh dissented from a decision that denied an en banc rehearing of the Priests for Life v. HHS ruling in which the panel upheld the ACA's contraceptive mandate accommodations against Priests for Life's Religious Freedom Restoration Act claims.[66][67] In Zubik v. Burwell (2016), the Supreme Court vacated the circuit's judgment in a per curiam decision.[68]

Appointments Clause and separation of powers[]

In August 2008, Kavanaugh dissented when the circuit found that the Constitution's Appointments Clause did not prevent the Sarbanes–Oxley Act from creating a board whose members were not directly removable by the President.[69][70] In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Supreme Court reversed the circuit's judgment by a vote of 5–4.[71]

In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design.[72][73] In October 2016, Kavanaugh wrote for a divided panel finding that the CFPB's design was unconstitutional, and made the CFPB Director removable by the President of the United States.[74][75] In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.[76][77]

Environmental regulation[]

In 2013, Kavanaugh issued an extraordinary writ of mandamus requiring the Nuclear Regulatory Commission to process the license application of the Yucca Mountain nuclear waste repository, over the dissent of Judge Merrick Garland.[78][79] In April 2014, Kavanaugh dissented when the court found that Labor Secretary Tom Perez could issue workplace safety citations against SeaWorld regarding the multiple killings of its workers by Tilikum the orca.[80][81]

After Kavanaugh wrote for a divided panel striking down a Clean Air Act regulation, the Supreme Court reversed by a vote of 6–2 in EPA v. EME Homer City Generation, L.P. (2014).[82][83] Kavanaugh dissented from the denial of rehearing en banc of a unanimous panel opinion upholding the agency's regulation of greenhouse gas emissions and a fractured Supreme Court reversed by a vote of 5–4 in Utility Air Regulatory Group v. Environmental Protection Agency (2014).[84][85] After Judge Kavanaugh dissented from a per curiam decision allowing the agency to disregard cost–benefit analysis, the Supreme Court reversed by a vote of 5–4 in Michigan v. EPA (2015).[86][87]

Extraterritorial jurisdiction[]

In Doe v. Exxon Mobil Corp. (2007), Kavanaugh dissented when the circuit court allowed a lawsuit making accusations of ExxonMobil human rights violations in Indonesia to proceed, arguing in his dissent that the claims were not justiciable.[88][89] Kavanaugh dissented again when the circuit court later found that the corporation could be sued under the Alien Tort Statute of 1789.[51][90][91]

First Amendment and free speech[]

Kavanaugh wrote for unanimous three-judge district courts when they held that the Bipartisan Campaign Reform Act could restrict soft money donations to political parties and could forbid campaign contributions by foreign citizens.[92][93] Those judgments were both summarily affirmed on direct appeal by the Supreme Court.[94]

In 2014, Kavanaugh concurred in the judgment when the en banc D.C. Circuit found that the Free Speech Clause did not forbid the government from requiring meatpackers to include a country of origin label on their products.[95][96] In United States Telecom Ass'n v. FCC (2016), Kavanaugh dissented when the en banc circuit refused to rehear a rejected challenge to the net neutrality rule, writing that "Congress did not clearly authorize the FCC to issue the net neutrality rule".[26][97][98]

Fourth Amendment and civil liberties[]

In November 2010, Kavanaugh dissented from the denial of rehearing en banc after the circuit found that attaching a Global Positioning System tracking device to a vehicle violated the Fourth Amendment to the United States Constitution.[99][100] The circuit's judgment was then affirmed by the Supreme Court in United States v. Jones (2012).[101] In February 2016, Kavanaugh dissented when the en banc circuit refused to rehear police officers' rejected claims of qualified immunity for arresting partygoers in a vacant house.[26][102] In District of Columbia v. Wesby (2018), the Supreme Court unanimously reversed the circuit's judgment.[103]

In Klayman v. Obama (2015), Kavanaugh concurred when the circuit court denied an en banc rehearing of its decision to vacate a district court order blocking the National Security Agency's warrantless bulk collection of telephony metadata.[104][105] In his concurrence, Kavanaugh wrote that the metadata collection was not a search, and, even if it were, no reasonable suspicion would be required because of the government's special need to prevent terrorist attacks.[106]

National security[]

In April 2009, Kavanaugh wrote a lengthy concurrence when the court found that detainees at the Guantanamo Bay detention camp had no right to advanced notice before being transferred to another country.[107][108] In Kiyemba v. Obama (2010), the Supreme Court vacated that judgment while refusing to review the matter.[109] In June 2010, Kavanaugh wrote a concurrence in judgment when the en banc D.C. Circuit found that the Al-Shifa pharmaceutical factory owners could not bring a defamation suit regarding the government's allegations that they were terrorists.[110][111] In October 2012, he wrote for a unanimous court when it found that the Constitution's Ex Post Facto Clause made it unlawful for the government to prosecute Salim Hamdan under the Military Commissions Act of 2006 on charges of providing material support for terrorism.[112][113]

In August 2010, Kavanaugh wrote a lengthy concurrence when the en banc circuit refused to rehear Ghaleb Nassar Al Bihani's rejected claims that the international law of war limits the Authorization for Use of Military Force Against Terrorists.[26][114] In 2014, Kavanaugh concurred in the judgment when the en banc circuit found that Ali al-Bahlul could be retroactively convicted of war crimes, provided existing statute already made it a crime "because it does not alter the definition of the crime, the defenses or the punishment".[115][116] In October 2016, Kavanaugh wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if his offenses are not internationally recognized as war crimes under the law of war.[117][118]

In Meshal v. Higgenbotham (2016), Kavanaugh concurred when the divided panel threw out a claim by an American that he had been disappeared by the FBI in a Kenyan black site.[119][120]

Second Amendment and gun ownership[]

In October 2011, Kavanaugh dissented when the circuit court found that a ban on the sale of semi-automatic rifles was permissible under the Second Amendment. This case followed the landmark Supreme Court ruling in District of Columbia v. Heller (2008).[121][122]

Law clerk hiring practices and controversy[]

More than half of Kavanaugh's law clerks have been women (25 of 48) and more than a quarter have been people of color (13 of 48).[54] A number of Kavanaugh's law clerks are the children of other judges and high profile legal figures, including Clayton Kozinski (son of former federal Judge Alex Kozinski), Porter Wilkinson (daughter of Judge J. Harvie Wilkinson III), Philip Alito (son of Justice Samuel Alito), Sophia Chua-Rubenfeld (daughter of Yale Law Professor Amy Chua), and Emily Chertoff (daughter of former DHS Secretary Michael Chertoff).[123][124]

On September 20, 2018, The Guardian reported that two prominent Yale professors had advised female law students at Yale that their physical attractiveness and femininity could play a role in securing a clerkship with Kavanaugh. Amy Chua reportedly stated that female law students should exude a "model-like" femininity and "dress outgoing" in their job interview with Kavanaugh. Jed Rubenfeld reportedly stated that Kavanaugh "hires women with a certain look.”[125] In a statement to The Guardian in response to the report, Chua released a statement in which she denied the notion that Kavanaugh's hiring was impacted by the attractiveness of female clerks. She stated that "Judge Kavanaugh’s first and only litmus test in hiring has been excellence."[125] Yale Law School Dean Heather Gerken has stated that the allegations reported by the Guardian "are of enormous concern to me and the school," and Yale is currently investigating the allegations.[126]

Nomination to the Supreme Court of the United States (2018)[]

Kavanaugh and his family with President Donald Trump in 2018

On July 2, 2018, Kavanaugh was one of four U.S. Court of Appeals judges to receive a personal 45-minute interview by President Donald Trump as a potential replacement for Justice Anthony Kennedy.[127] On July 9, Trump nominated Kavanaugh for a seat on the Supreme Court.[128][129]

Legal philosophy and approach[]

The Washington Post's statistical analysis estimated that the ideologies of most of Trump's announced candidates were "statistically indistinguishable" and placed Kavanaugh between Justices Neil Gorsuch and Samuel Alito.[130] Brian Bennett writing for Time magazine in July 2018 reported that Trump and his advisors viewed Kavanaugh as "a stalwart originalist".[131] Jonathan Turley of George Washington University has stated that among the judges considered by Trump, "Kavanaugh has the most robust view of presidential powers and immunities.[132] Brian Bennett writing for TIME magazine cites Kavanaugh's 2009 Minnesota Law Review article as defending the privilege of the President to immunity from prosecution during tenure in office.[132] In a 2017 speech at the American Enterprise Institute about former Chief Justice, William Rehnquist, he praised his opinions in Roe v. Wade and Furman v. Georgia, where Rehnquist dissented in rulings that overturned the ban against abortion and the statutes which supported the death penalty.[133][134] An analysis covering the period 2003–2018 found that Kavanaugh had the most or second-most conservative voting record on the D.C. Court in every policy area.[6]

During his hearing, he noted that he has repeatedly described the four greatest moments in Supreme Court history as being the cases Brown v. Board of Education, Marbury v. Madison, Youngstown Steel, and United States v. Nixon, with Brown being the single greatest.[135]

According to the Judicial Common Space scores, a score based on the ideology scores of the home state senators and president who nominated the judge to the federal bench, Clarence Thomas is the only justice more conservative than Kavanaugh. According to this metric, Kavanaugh's confirmation would mean the composition of the court would shift to the right.[136] Had Merrick Garland been confirmed, Stephen Breyer would have become the median swing vote when Justice Kennedy retired. However, since Scalia was replaced by another conservative (Gorsuch), it is expected that Chief Justice John Roberts will become the median swing vote on the Supreme Court if Kavanaugh is confirmed.[137]

Senate Judiciary Committee public hearing[]

The Senate Judiciary Committee commenced its public hearings on Kavanaugh's nomination on September 4, 2018. The hearings were at the onset delayed with objections from the Democratic members, concerning the absence of records during the nominee's time in the George W. Bush administration, prior to his service as a federal circuit court judge. The Democrats also complained that 42,000 pages of documents had been received at the 11th hour, the night before Day One of the hearings.[138] Repeated statements from the Republicans included the assertion that the volume of documents available on this nominee equaled that of the previous 5 nominees for the court; the Democrats, whose opposition has been unanimously declared, responded with their repeated contention that only 15% of demanded documents about the nominee had been obtained. Numerous motions by the Democrats to adjourn or suspend the hearings were ruled to be out of order by Chairman Chuck Grassley, who argued that Judge Kavanaugh had written over 300 legal opinions available for review. The first day's session closed after statements from each senator and the nominee, with question and answer periods to begin the following day.[139]

During the first round of questions from senators on September 5, 2018, Kavanaugh held to his earlier stated position that he would not express an opinion on matters which might come before the court. He thus refused to promise to recuse himself from any case, including any that might involve President Trump. He also declined to comment on coverage of prexisting healthcare conditions, semiautomatic rifle possession, the precedent of Roe v. Wade, or the President's power to issue a self-pardon. The nominee was given the opportunity, and expounded at length upon various Constitutional amendments, stare decisis, and the President's power to dismiss federal employees. As in the prior session, there were frequent outbursts of protest in the audience, requiring security intervention and removal, as well as repeated procedural objections from Democrats.[140]

The Committee's third day of hearings began with furor over release of emails of Kavanaugh relating to a concern about potential racial profiling in security screenings. The day continued with Kavanaugh's attempts to articulate his jurisprudence, including refusing direct questions to opine on matters that he characterized as hypothetical.[141]

The Committee released a 2003 email in which Kavanaugh said, "I am not sure that all legal scholars refer to [Roe v. Wade] as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so."[142] Kavanaugh stressed that he was commenting on the views of legal scholars at the time, not his own views, and noted that the case had been reaffirmed on a number of occasions since the time of the statement.[143] Sen. Susan Collins, a key but undeclared vote in the confirmation, indicated the statement did not contradict Kavanaugh’s personal assurance to her that Roe is settled law.[144]

Sexual assault allegation and hiring practices allegations[]

On September 16, 2018, Christine Blasey Ford, a professor at Palo Alto University, said Kavanaugh had sexually assaulted her when he was a 17-year old high school student.[145][146] Specifically, Ford stated that in the early 1980s, when she and Kavanaugh were teenagers, Kavanaugh and a male friend corralled her in a bedroom at a house party in Maryland. According to Ford, Kavanaugh pinned her to the bed, groped her, ground against her, tried to pull off her clothes, and covered her mouth with his hand when she tried to scream.[147] Ford said that she was afraid Kavanaugh "might inadvertently kill [her]" during the attack.[148] Ford stated that she got away when one of Kavanaugh's friends from Georgetown Prep School jumped on the bed, knocking them all over.[145][149] Ford's attorney, Debra Katz, has stated that Ford considers the assault to have been an attempted rape.[9]

On September 13, Ford's statement came to light when Senator Dianne Feinstein (D-California) acknowledged the existence of a complaint against Kavanaugh by a woman who requested not to be identified; Feinstein stated that the woman accused Kavanaugh of trying to force himself on her while physically restraining her when they were both in high school.[150][151] On the same day, Feinstein stated that she had forwarded the allegation to federal authorities.[13][12] Ford came forward publicly after Republicans criticized the fact that the statement had come from an unnamed person.

Kavanaugh issued the following statement through the White House: "I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time."[12][13] Republicans criticized the decision to withhold "a vague, anonymous accusation for months" before releasing it on the "eve of [Kavanaugh's] confirmation" as an attempt to delay the Kavanaugh confirmation hearings.[152][153]

Ford has provided a therapist's notes of references she made in couples counseling in 2012 describing the psychological effects afterward.[154] The therapist's notes, parts of which were released on September 16, 2018, confirm that Ford had stated that she was assaulted by students "from an elitist boys' school" who eventually became "highly respected and high-ranking members of society in Washington"; the notes do not name Kavanaugh. Notes from another session a year later show that Ford had previously described a "rape attempt" while in high school.[148][155]

The Senate Judiciary Committee released a letter on September 14, 2018 in which 65 women signatories who stated that they had known Kavanaugh "for more than 35 years" asserted that during the time they had known him, Kavanaugh had "behaved honorably and treated women with respect."[156] Twenty-four women who attended the Holton-Arms School along with Ford sent a letter to Congress expressing support for her.[157] Over 1,000 alumnae of the school signed a letter saying her accusation was “all too consistent with stories we heard and lived” at the school.[158]

The Senate Judiciary Committee invited both Kavanaugh and Ford to provide testimony before the Committee on September 24, 2018. Kavanaugh agreed to testify on September 24.[159] Ford requested that the Federal Bureau of Investigation investigate the matter first, but Senate Judiciary Committee Chair Chuck Grassley declined the request, giving Ford a deadline of September 21 to inform the Committee whether she intended to testify. Grassley added that Ford was welcome to appear before the Committee either privately or publicly.[160] On September 20, Ford opened negotiations with the Committee to potentially reschedule the hearing.[161]

On September 20, at a rally in Las Vegas, Trump strongly endorsed Kavanaugh, saying “Brett Kavanaugh is one of the finest human beings you will ever have the privilege of knowing or meeting.” Trump also addressed the Democrats’ demand for an FBI probe by asking why the FBI was not notified 36 years ago.[162]

President Trump responded to the claims, saying that Ford would've told law enforcement when the incident had actually occurred. He wrote that the Ford's statement was an "assault" made by "radical left wing politicians" intended to undermine his presidency.[163][164]

Amid statements by Yale Law professors Amy Chua and Jed Rubenfeld that the physical attractiveness of female law students played a role in Judge Kavanaugh's clerkship hiring process, Yale Law School is also currently conducting an investigation.[126]

Teaching and scholarship[]

Since joining the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh taught full-term courses on Separation of Powers at Harvard Law School from 2008 to 2015, on the Supreme Court at Harvard Law School between 2014 and 2018, on National Security and Foreign Relations Law at Yale Law School in 2011, and on Constitutional Interpretation at Georgetown University Law Center in 2007. Kavanaugh has also been named the Samuel Williston Lecturer on Law at Harvard Law School since 2009.[165] Kavanaugh was hired as a visiting professor by Elena Kagan, who was then the dean of Harvard Law School in 2008 and according to The Boston Globe, quickly became a student favorite professor who was generous with his time and accessible. He would often dine in Cambridge with students and offer references and career advice.[166][167] Kavanaugh received high evaluations from his students, including J. D. Vance.[168]

In 2009, Kavanaugh wrote an article for the Minnesota Law Review in which he argued that Congress should exempt U.S. presidents from civil lawsuits while in office[169] because, among other things, such lawsuits could be "time-consuming and distracting" for the president and would thus "ill serve the public interest, especially in times of financial or national security crisis."[170] Kavanaugh argued that if a president "does something dastardly", that president may be impeached by the House of Representatives, convicted by the Senate, and criminally prosecuted after leaving office.[169] The US would have been better off if president Clinton "could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots".[169] This article garnered attention in 2018 when Kavanaugh was nominated to the Supreme Court by President Donald Trump, whose 2016 presidential campaign is the subject of an ongoing federal probe by Special Counsel Robert Mueller.[170]

When reviewing a book on statutory interpretation by Second Circuit Chief Judge Robert Katzmann, Kavanaugh observed that judges often cannot agree on a statute if its text is ambiguous.[171] To remedy this, Kavanaugh encouraged judges to first seek the "best reading" of the statute, through "interpreting the words of the statute" as well as the context of the statute as a whole, and only then apply other interpretive techniques that may justify an interpretation that differs from the "best meaning" such as constitutional avoidance, legislative history, and Chevron deference.[171]

Personal life[]

Kavanaugh with his daughters

Kavanaugh had his first date with his future wife Ashley Estes, then personal secretary to President George W. Bush, on September 10, 2001. They were among the occupants of the White House evacuated during the September 11 attacks.[172]

In early 2006, Kavanaugh and his wife bought a $1.2-million home in Chevy Chase Section Five, Maryland.[24] In 2018, Kavanaugh reported that he earned a $220,000 salary as a federal judge and $27,000 as a lecturer at Harvard Law School during the previous year.[173]

Kavanaugh ran the Boston Marathon in 2010 and 2015.[174]

Kavanaugh is a Catholic[172] and serves as a regular lector at his Washington, D.C. church, the Shrine of the Most Blessed Sacrament. He has helped serve meals to the homeless as part of church programs, and has tutored at the Washington Jesuit Academy, a Catholic private school in the District of Columbia.[172][175]

Publications[]

See also[]

References[]

  1. ^ "Brett Kavanaugh Fast Facts". cnn.com. CNN. July 16, 2018. Retrieved September 16, 2018. 
  2. ^ Lewis, Neil (April 28, 2004). "Bush Aide on Court Nominees Faces Fire as Nominee Himself". The New York Times. Retrieved November 8, 2011. 
  3. ^ Lewis, Neil (May 10, 2006). "Senators Renew Jousting Over Court Pick". The New York Times. Retrieved November 8, 2011. 
  4. ^ Lewis, Neil (July 26, 2003). "Bush Selects Two for Bench, Adding Fuel to Senate Fire". The New York Times. Retrieved November 8, 2011. 
  5. ^ Kellman, Laurie (May 23, 2006). "Kavanaugh Confirmed U.S. Appellate Judge". The Washington Post. Washington DC: Nash Holdings LLC. Retrieved November 8, 2011. 
  6. ^ a b "Analysis | It's hard to find a federal judge more conservative than Brett Kavanaugh". Washington Post. Retrieved September 5, 2018. 
  7. ^ Wilson, Chris (June 27, 2018). "Appellate judge on D.C. Circuit seen as early favorite on Trump's Supreme Court shortlist". Yahoo! News. Retrieved June 28, 2018. 
  8. ^ Landler, Mark; Haberman, Maggie (July 9, 2018). "Brett Kavanaugh Is Trump's Pick for Supreme Court". The New York Times. Retrieved July 9, 2018. 
  9. ^ a b Tchekmedyian, Alene. "Christine Blasey Ford agonized about going public with Brett Kavanaugh sexual assault allegations - Los Angeles Times". latimes.com. 
  10. ^ "California professor, writer of confidential Brett Kavanaugh letter, speaks out about her allegation of sexual assault". Washington Post. Retrieved 2018-09-17. 
  11. ^ "Is Brett Kavanaugh cooked?". Vanity Fair. Retrieved 2018-09-17. 
  12. ^ a b c Pramuk, Jacob (September 14, 2018). "Trump Supreme Court nominee Brett Kavanaugh 'categorically' denies sexual misconduct accusation detailed in New Yorker report". CNBC. Retrieved September 14, 2018. 
  13. ^ a b c "Dianne Feinstein Refers a Kavanaugh Matter to Federal Investigators". The New York Times. September 13, 2018. 
  14. ^ "George W. Bush: Remarks at a Swearing-In Ceremony for Brett Kavanaugh as a United States Circuit Judge for the District of Columbia". presidency.ucsb.edu. 
  15. ^ "The Social List of Washington, D.C. and Social Precedence in Washington". J.S. Murray. July 10, 1990 – via Google Books. 
  16. ^ Martha G. Kavanaugh, Maryland Circuit Court Judge, maryland.gov. Retrieved July 2, 2018.
  17. ^ "Who is Martha Kavanaugh, Brett Kavanaugh's mother?". CBS NEWS. Retrieved July 10, 2018. 
  18. ^ Liptak, Adam (July 9, 2018). "Brett Kavanaugh, a Conservative Stalwart in Political Fights and on the Bench". The New York Times. Retrieved July 10, 2018. 
  19. ^ a b Mervosh, Sarah (July 11, 2018). "Kavanaugh and Gorsuch Both Went to the Same Elite Prep School". The New York Times. p. A19. Retrieved July 16, 2018. 
  20. ^ "Brett Kavanaugh is the latest high-level Trump appointee to come from a single Washington, DC-area high school". Business Insider. Retrieved July 10, 2018. 
  21. ^ Shepherd, Brittany (2018-07-09). "Trump's Two SCOTUS Picks Also Went to High School Together". Washingtonian. Retrieved 2018-09-19. Kavanaugh was a cornerback and wide receiver for the school's varsity football team and served as captain of the school's basketball team. 
  22. ^ a b c d e Durkin Richer, Alanna; Peltz, Jennifer (28 August 2018). "At Yale, Kavanaugh Stayed Out Of Debates At A Time Of Many". Hartford Courant. Retrieved 5 September 2018. 
  23. ^ Herbst, Diane (September 21, 2018). "Brett Kavanaugh's Yale Frat Raided Female Students' Rooms, Paraded Bras and Underwear on Campus". People. Retrieved September 21, 2018. 
  24. ^ a b c d e f g h i j Shane, Scott; Eder, Steve; Ruiz, Rebecca R.; Liptak, Adam; Savage, Charlie; Protess, Ben (July 15, 2018). "Influential Judge, Loyal Friend, Conservative Warrior — and D.C. Insider". The New York Times. p. A1. Retrieved July 16, 2018. 
  25. ^ "Brett Kavanaugh '90 Nominated to U.S. Supreme Court". Yale Law School. July 9, 2018. Retrieved July 10, 2018. 
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  29. ^ Report on the Death of Vincent W. Foster, Jr, by the Office of Independent Counsel in Re Madison Guaranty Savings and Loan Association HATHI Trust Digital Library, Universities of Michigan and Purdue, the complete 137-page, 2 vol. report with app., footnotes, and exhibits.
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  31. ^ "Opinion - Why Was Kavanaugh Obsessed With Vince Foster?". 
  32. ^ Kranish, Michael; Marimow, Michael (July 6, 2018). "Kavanaugh's unorthodox path to Trump's Supreme Court shortlist". The Washington Post. Retrieved July 9, 2018. 
  33. ^ "Swidler & Berlin v. United States". Oyez Project. Retrieved July 9, 2018. 
  34. ^ Liptak, Adam (August 20, 2019). "Brett Kavanaugh Urged Graphic Questions in Clinton Inquiry". The New York Times. p. A1. Retrieved August 22, 2018. 
  35. ^ Landler, Mark; Apuzzo, Matt (July 6, 2018). "Brett Kavanaugh, Supreme Court Front-Runner, Once Argued Broad Grounds for Impeachment". The New York Times. p. A1. Retrieved July 6, 2018. 
  36. ^ "Kavanaugh argued the president can be impeached for lies, cover-ups and refusing to testify". Associated Press. Retrieved August 27, 2018. 
  37. ^ "Washingtonpost.com Special Report: Clinton Accused". www.washingtonpost.com. 
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  46. ^ Associated Press, June 1, 2006, "President Celebrates Judge's Swearing-In" by Deb Riechmann
  47. ^ National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006).
  48. ^ Shapiro, Ari (June 26, 2007). "Federal Judge Downplayed Role in Detainee Cases". NPR. Retrieved July 10, 2018. 
  49. ^ Lewis, Neil A. (July 4, 2007). "2 Senators Accuse Judge of Misleading Committee". The New York Times. Retrieved July 5, 2018. 
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  53. ^ "5/9/2006 Schumer: "Do you consider Roe v. Wade to be an abomination?"". CSPAN. July 5, 2018. Retrieved July 8, 2018. 
  54. ^ a b "Brett Kavanaugh once predicted 'one race' in the eyes of government. Would he end affirmative action?". Washington Post. Retrieved August 19, 2018. 
  55. ^ "Azar v. Garza". SCOTUSblog. Retrieved July 6, 2018. 
  56. ^ a b c d Note, Recent Case: En Banc D.C. Circuit Upholds Order Requiring HHS to Allow an Undocumented Minor to Have an Abortion, 131 Harv. L. Rev. 1812 (2018).
  57. ^ Savage, David G. (July 11, 2018). "Supreme Court nominee Brett Kavanaugh lauded late Chief Justice Rehnquist for dissenting in Roe vs. Wade and supporting school prayer". Los Angeles Times. Judge Brett M. Kavanaugh, President Trump's Supreme Court nominee, gave a revealing speech last fall in which he lauded former Chief Justice William H. Rehnquist for having dissented in Roe vs. Wade and for rejecting the notion of 'a wall of separation between church and state.' 
  58. ^ Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam).
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  60. ^ "Azar v. Garza". Oyez Project. Retrieved August 1, 2018. 
  61. ^ Toobin, Jeffrey. "Holding Court". The New Yorker (March 26, 2012). Retrieved July 6, 2018. 
  62. ^ Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  63. ^ Erb, Kelly Phillips. "Supreme Court Nominee Brett Kavanaugh Penned Healthcare Dissent Focused On Tax". Forbes. Retrieved July 12, 2018. 
  64. ^ Note, Recent Cases: D.C. Circuit Reaffirms that Affordable Care Act Falls Outside Scope of the Origination Clause by Denying Petition for En Banc Review, 129 Harv. L. Rev. 2003 (2016).
  65. ^ Sissel v. United States Department of Health & Human Services, 799 F.3d 1035 (D.C. Cir. 2015).
  66. ^ Blackman, Josh (September 26, 2016). Unraveled: Obamacare, Religious Liberty, and Executive Power. Cambridge University Press. ISBN 978-1-107-16901-2. 
  67. ^ Priests for Life v. U.S. Dep't of Health & Human Servs., 808 F.3d 1 (D.C. Cir. 2015) (en banc).
  68. ^ Josh Blackman, The Supreme Court, 2015 Term — Comment: Gridlock, 130 Harv. L. Rev. 241 (2016).
  69. ^ Note, Recent Case: D.C. Circuit Holds that the SEC Chairman Is Not the "Head" of the SEC, 122 Harv. L. Rev. 2267 (2009).
  70. ^ Free Enterprise Fund v. Public Co. Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2009).
  71. ^ Note, The Supreme Court, 2009 Term — Leading Cases, 124 Harv. L. Rev. 179 (2010).
  72. ^ Note, Recent Case: D.C. Circuit Limits Prospects for Challenging Dodd-Frank's Orderly Liquidation Authority, 129 Harv. L. Rev. 835 (2016).
  73. ^ State National Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015).
  74. ^ Cowley, Stacy (October 12, 2016). "Court Upholds Consumer Agency, Minus Its Leader's Job Security". The New York Times. p. B2. Retrieved October 18, 2016. 
  75. ^ PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2017).
  76. ^ PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc).
  77. ^ Weiss, Debra Cassens (January 31, 2018). "Full DC Circuit upholds structure of Consumer Financial Protection Bureau". ABA Journal. Retrieved July 6, 2018. 
  78. ^ Note, Recent Case: D.C. Circuit Compels Nuclear Regulatory Commission to Follow Statutory Mandate, 127 Harv. L. Rev. 1033 (2013).
  79. ^ In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013).
  80. ^ Schaffner, Joan E. (2016). Blackfish and Public Outcry: A Unique Political and Legal Opportunity for Fundamental Change to the Legal Protection of Marine Mammals in the United States. Animal Law and Welfare – International Perspectives. Ius Gentium: Comparative Perspectives on Law and Justice. 53. pp. 237–261. doi:10.1007/978-3-319-26818-7_11. ISBN 978-3-319-26816-3. 
  81. ^ SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).
  82. ^ Note, The Supreme Court, 2013 Term — Leading Cases, 128 Harv. L. Rev. 351 (2014).
  83. ^ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
  84. ^ Note, The Supreme Court, 2013 Term — Leading Cases, 128 Harv. L. Rev. 361 (2014).
  85. ^ Coal. for Responsible Regulation, Inc. v. EPA, 696 No. 09-1322, 2012 WL 6621785 (D.C. Cir. Dec 20, 2012).
  86. ^ Note, The Supreme Court, 2014 Term — Leading Cases, 129 Harv. L. Rev. 311 (2015).
  87. ^ White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014) (per curiam).
  88. ^ Note, Recent Case: D.C. Circuit Declines To Overturn Lower Court's Finding of Justiciablity in Tort Suit Brought by Indonesian Villagers, 121 Harv. L. Rev. 898 (2008).
  89. ^ Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007).
  90. ^ Note, Recent Case: D.C. Circuit Holds Corporations Not Immune from ATS Claims, 125 Harv. L. Rev. 674 (2011).
  91. ^ Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).
  92. ^ Republican Nat. Committee v. Federal Election Comm., 698 F.Supp.2d 150 (D.D.C. 2010).
  93. ^ Bluman v. Federal Election Comm., 800 F.Supp.2d 281 (D.D.C. 2011).
  94. ^ Davis, Charles (July 13, 2018). "Kavanaugh and campaign finance: Republican National Committee v. Federal Election Commission". SCOTUSblog. Retrieved July 28, 2018. 
  95. ^ Note, Recent Case: D.C. Circuit Applies Less Stringent Test to Compelled Disclosures, 128 Harv. L. Rev. 1526 (2015).
  96. ^ American Meat Institute v. USDA, 760 F.3d 18 (D.C. Cir. 2017) (en banc).
  97. ^ United States Telecom Association v. Federal Communications Commission, 855 F.3d 381 (D.C. Cir. 2017) (en banc).
  98. ^ "FCC Net Neutrality Case Rehearing Rejected by Appeals Court". Bloomberg.com. May 1, 2017. Retrieved August 1, 2018. 
  99. ^ Note, The Supreme Court, 2011 Term — Leading Cases, 126 Harv. L. Rev. 176 (2012).
  100. ^ United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).
  101. ^ "United States v. Jones". SCOTUSblog. Retrieved July 28, 2018. 
  102. ^ Wesby v. District of Columbia, 816 F.3d 96 (D.C. Cir. 2016) (en banc).
  103. ^ "District of Columbia v. Wesby". Oyez Project. Retrieved July 11, 2018. 
  104. ^ Weiss, Debra Cassens (July 16, 2018). "Supreme Court nominee Kavanaugh's record on surveillance could raise questions for Rand Paul". ABA Journal. Retrieved August 22, 2018. 
  105. ^ Klayman v. Obama, 805 F.3d 1148 (D.C. Cir. 2015).
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  107. ^ Stephen I. Vladeck, The Unreviewable Executive: Kiyemba, Maqaleh, and the Obama Administration, 26 Const. Comm. 603 (2010).
  108. ^ Kiyemba v. Obama, 561 F.3d 505 (D.C. Cir. 2009).
  109. ^ "Kiyemba v. Obama". Oyez Project. Retrieved July 13, 2018. 
  110. ^ Note, Recent Case: D.C. Circuit Holds That Government Officials' Potentially Defamatory Allegations Regarding Plaintiffs' Terrorist Ties Are Protected by Political Question Doctrine, 124 Harv. L. Rev. 640 (2010).
  111. ^ El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc).
  112. ^ Note, Recent Case: D.C. Circuit Interprets Military Commissions Act of 2006 to Bar Retroactive Application of Material Support Prohibition, 126 Harv. L. Rev. 1683 (2013).
  113. ^ Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012).
  114. ^ Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (en banc).
  115. ^ Note, Recent Cases: D.C. Circuit Reinterprets Military Commissions Act of 2006 to Allow Retroactive Prosecution of Conspiracy to Commit War Crimes, 128 Harv. L. Rev. 2040 (2015).
  116. ^ Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).
  117. ^ Marimow, Ann (October 20, 2016). "Appeals court upholds conspiracy conviction of Guantanamo Bay detainee". The Washington Post. Washingtn DC: Nash Holdings LLC. Retrieved October 24, 2016. 
  118. ^ Al Bahlul v. United States, 804 F.3d 757 (D.C. Cir. 2016).
  119. ^ Note, Recent Case: D.C. Circuit Holds that U.S. Citizen Detained and Interrogated Abroad Cannot Hold FBI Agents Individually Liable for Violations of His Constitutional Rights, 129 Harv. L. Rev. 1795 (2016).
  120. ^ Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015).
  121. ^ "Judge Kavanaugh's Record on Second Amendment/Gun Rights". National Review. July 4, 2018. Retrieved August 18, 2018. 
  122. ^ Heller v. District of Columbia, 607 F.3d 1244 (D.C. Cir. 2011).
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  129. ^ "Pres. Nom. 2259". 115th Cong. (2018). 
  130. ^ Cope, Kevin (July 7, 2018). "Exactly how conservative are the judges on Trump's short list for the Supreme Court? Take a look at this one chart". The Washington Post. Retrieved July 9, 2018. 
  131. ^ Brian Bennett. "Trump's Justice". Time magazine. July 23, 2018, p.22.
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  141. ^ "Sen. Booker Releases Emails". ABC News. September 6, 2018. Retrieved September 6, 2018. 
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  143. ^ "Kavanaugh Questioned on Roe v. Wade". Richmond Times Dispatch. September 7, 2018. 
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  147. ^ "Democrats Call To Delay Kavanaugh Vote After His Accuser Goes Public". NPR. September 16, 2018. 
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Further reading[]

External links[]

Political offices
Preceded by
Harriet Miers
White House Staff Secretary
2003–2006
Succeeded by
Raul F. Yanes
Legal offices
Preceded by
Laurence Silberman
Judge of the United States Court of Appeals for the District of Columbia Circuit
2006–present
Incumbent