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From Health Law Daily, July 10, 2018

Brett Kavanaugh nominated to replace Justice Kennedy on Supreme Court

By Susan Smith, J.D., M.A.

After a selection process that started with a list of 25 potential nominees to the Supreme Court, President Donald J. Trump selected Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit as his nominee to fill Justice Anthony M. Kennedy’s seat on the Supreme Court, the White House announced. Leigh Ann Caldwell, Capitol Hill reporter for NBC, tweeted that Justice Kennedy had provided the White House with a list of who he believed to be acceptable replacements before announcing his retirement, which included his former law clerk, Kavanaugh.

Kavanaugh’s background. In 2006, President George W. Bush appointed Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit. Before becoming a judge, Kavanaugh served in the Bush Administration in the role of Associate Counsel and, subsequently, as Assistant to the President and Staff Secretary. Kavanaugh graduated from Yale College and Yale Law School and clerked on the Supreme Court for Justice Kennedy. He also clerked for judges on the Third and Ninth Circuit Courts of Appeals. In addition, he was Counsel for the Office of Independent Counsel under Ken Starr and was a Partner at Kirkland & Ellis, LLP.

Democrats’ concerns. Kavanaugh has authored more than 300 opinions, including 11 that have been affirmed by the Supreme Court. Opinions that are of specific concerns to Democrats include how Kavanaugh would rule on such issues as abortion, environmental protection, provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), and the Consumer Financial Protection Bureau (CFPB) and corporate accountability. For example, Elizabeth Warren (D-Mass) tweeted that "Brett Kavanaugh's record as a judge and lawyer is clear: hostile to health care for millions, opposed to the CFPB & corporate accountability, thinks Presidents like Trump are above the law – and conservatives are confident that he would overturn Roe v. Wade."

According the Atlantic, Democrats want to know how Judge Kavanaugh will rule. Senate Minority Leader Chuck Schumer (D-NY) emphasized that a nominee to replace Justice Kennedy "has an share their personal views" on a range of contentious legal issues such as the role of money in politics, a woman’s constitutional right to an abortion, and the ACA. Schumer said that the most pressing question from Democrats is whether Kavanaugh would vote to overturn Roe v. Wade.

CNN reported that Kavanaugh has never directly ruled on abortion and has not publicly said if he favored overturning Roe v. Wade, however, his dissent on an appeals court decision that allowed a pregnant teenaged illegal immigrant who was in federal custody to have an abortion will likely draw scrutiny from Democrats. In his dissent in Garza v. Hargan, Kavanaugh noted that the Supreme Court has held that "the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion." He added, however, that "all parties to this case recognize Roe v Wade. and Planned Parenthood v. Casey as precedents we must follow."

CNN also reported that Kavanaugh has "established a reputation as a skeptic of regulatory action supported by the Environmental Protection Agency (EPA) under the Obama administration" as well as skepticism of broad agency power. In his dissent of opinions issued by the court, Kavanaugh was critical of the EPA in a challenge addressing regulations of greenhouse gases and he opposed independent agencies such as the CFPB run by a single director, stating that independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.

Health care reform cases. In Priests for Life v. HHS, the D.C. Circuit denied a nonprofit organization a rehearing en banc regarding its objections to the accommodation allowing religious nonprofits to pass the burden of providing contraceptives (see ACA §1302) to which they object on religious grounds to a third party. Kavanaugh dissented stating that the panel contradicted the Burwell v. Hobby Lobby decision, which stated that regulations requiring organizations to act contrary to their religious beliefs or pay significant fines substantially burdens religion. His dissent focused on the "extremely strong signals" provided by the Supreme Court in cases like Wheaton College v. Burwell, and argued that allowing organizations to provide notice to HHS directly was a less restrictive way to further the government’s interest in providing contraception. Kavanaugh also wrote in his dissent that Supreme Court precedent "strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations (see We’ve heard enough: court draws the line at accommodation, denies rehearing, May 27, 2015).

In Sissel v. HHS, the D.C. Circuit denied an artist’s petition for rehearing en banc. The artist claimed that the individual mandate of §1501 of the ACA violated the Commerce and Origination Clauses of the U.S. Constitution. His claims had been rejected by both the trial and appellate courts. Although Kavanaugh and three other judges agreed with the outcome, they did not agree with the panel’s reasoning. In the dissent, Kavanaugh stated that the original panel’s interpretation of the Origination Clause was incorrect, would upset the balance of power in Congress, and affected personally liberty; however, he agreed that the ACA did not violate the Origination Clause because it properly originated in the House. Three judges issued a concurrence responding to the dissenters’ allegations noting that the panel’s analysis was supported by the text of the Origination Clause, its history, congressional practice, and U.S. Supreme Court precedent (see No en banc rehearing for individual mandate challenge, August 12, 2015).

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