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Empirical SCOTUS blog sees Brett Kavanaugh as likely SCOTUS nominee

Judge Brett Kavanaugh. Photo by U.S. Court of Appeals for the District of Columbia Circuit, via Wikimedia Commons.

A new judge on President Donald Trump’s U.S. Supreme Court shortlist could be his next pick for a nomination to the court if Justice Anthony M. Kennedy or Justice Ruth Bader Ginsburg leaves the court, according to the blog Empirical SCOTUS.



The judge is Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, a former Kennedy clerk.

Kavanaugh is a likely pick if Trump’s aim “is to move the court at least minimally right of its current position,” according to the post by Adam Feldman, a fellow in the empirical study of public law at Columbia Law School. Feldman does not expect a Kavanaugh nomination upon the retirement of Justice Clarence Thomas, who is more to the right.

Feldman makes the argument based on an analysis of Kavanaugh’s rulings, as well as his age, experience and impact as a feeder judge for law clerks.

Kavanaugh is just behind onetime Supreme Court nominee Merrick Garland as the appeals judge sending the most law clerks to the Supreme Court for the years 2005 through 2016 clerk hires. (Kavanaugh surpasses Garland in a new analysis by the National Law Journal that includes 2017.)

In addition, Kavanaugh’s clerks have gone on to work for justices across the ideological spectrum, ranging from former Justice Antonin Scalia to Justice Sonia Sotomayor. The justices taking the most Kavanaugh clerks are Kennedy and Chief Justice John G. Roberts Jr., who “sit towards the ideological center of the court,” according to Empirical SCOTUS.

In addition, Kavanaugh is only 52 years old, despite serving on the appeals court since 2006. He has written 286 opinions on the court, and has been able to find agreement with a mix of judges. “Judge Kavanaugh’s ability to toe a moderate line while ruling predominately conservatively should attract a mixed ideological base,” the blog post says.

Kavanaugh “has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” the blog says. “In terms of agencies he has written in support of Homeland Security decisions and mainly in favor of FERC while he has had a more of a mix of opinions relating to EPA decisions. Judge Kavanaugh wrote multiple opinions relating to military commissions and mainly supported their establishment and actions. While he decided on behalf of the federal government in a majority of cases, he did not do so universally.”

Kavanaugh would be attractive to conservatives because of positions he took on two hot-button issues: gun rights and abortion.

Kavanaugh dissented when the appeals court rejected a challenge to a Washington, D.C., ban on assault weapons enacted after the Supreme Court found an individual right to own guns under the Second Amendment.

Kavanaugh also dissented when the full D.C. Circuit required the U.S. government to allow an abortion for a 17-year-old immigrant who was being held in a shelter because she is in the country illegally.

Hat tip to How Appealing.

Updated at 7:32 a.m. to correct Trump’s name in first paragraph