D.C. Circuit Judge Brett Kavanaugh, a Former Kennedy Clerk, Reflects on Term
D.C. Circuit Judge Brett Kavanaugh and Eleventh Circuit Judge William Pryor Jr. spoke Thursday about the latest U.S. Supreme Court term and their own career paths to the bench.
July 17, 2015 at 11:47 AM
4 minute read
Justice Anthony Kennedy became a liberal hero for his opinion in June declaring a national right to same-sex marriage. But he's also handed significant losses to liberals on issues such as campaign finance and gun rights.
One common thread, according to Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, a former Kennedy clerk, is Kennedy's belief in the individual against the government. Kavanaugh, speaking Thursday night to the D.C. young lawyers' chapter of the Federalist Society, said his former boss was “less likely to draw categorical bright-line rules.”
Kennedy “has a very deep vision of equality and liberty that you find expressed in a variety of areas,” Kavanaugh said. “If it's a tight case, a controversial case, and you're wondering where he will come out, often times it's good to put your chips on the individual, rather than the government.”
Kavanaugh and Eleventh Circuit Judge William Pryor Jr. spoke Thursday about the latest U.S. Supreme Court term and their own careers as lawyers and judges. Kavanaugh and Pryor agreed that Chief Justice John Roberts Jr., criticized by some conservatives for opinions that kept the Affordable Care Act intact, had tried to stick to a pledge he made during his confirmation hearing in 2005 to be an “umpire.”
Pryor noted that Roberts told Congress that he wanted to extricate the high court from the political arena and defer to Congress when possible. Pryor said he saw “consistency” between the chief justice's statements in 2005 and some of the cases in which he joined the court's more liberal justices.
“Judges aren't automatons,” Pryor said. “The line-ups are not what everyone always expects.”
Kavanaugh urged the lawyers attending Thursday's event to “remember the image of the judge as umpire,” and to not back away from that even if they disagreed with the outcome of a case.
Kavanaugh reflected on how his own opinions about the law changed over time. As a law student, he said, he strongly disagreed with the Supreme Court's 1989 decision in Texas v. Johnson, which protected flag burning under the First Amendment. Over time, though, Kavanaugh said he grew “more protective” of the First Amendment and now believed the majority in that case was correct.
Both judges encouraged lawyers to take risks in their careers, as long as it was for a cause or person they believed in. Kavanaugh, who served in the 1990s in the Office of Independent Counsel under Kenneth Starr, said that when he joined the White House Counsel's office under President George W. Bush in 2001, he was told that was a riskier career move than going to the U.S. Department of Justice.
Bush and Starr were controversial figures, Kavanaugh said, but he was proud to have worked for them. Bush appointed Kavanaugh and Pryor, the former Alabama attorney general, to the federal appeals courts.
Moderator Jan Crawford, chief legal correspondent for CBS News, asked what Kavanaugh and Pryor's dream jobs would be if they were not judges. In one of several references to Pryor's dedication to the University of Alabama football team, the judge quipped that he would be a strength and conditioning coach.
Kavanaugh said he would want to be a prosecutor, which had been his goal as a young lawyer until appeals court clerkships changed his focus. Outside of the law, Kavanaugh said, he would be a high school basketball coach, noting that he coached youth teams this past winter. Kavanaugh's name has come up as a potential Supreme Court pick under a Republican-controlled White House.
Asked about the “intangibles” that the judges sought in potential clerks, Kavanaugh said he favored lawyers who expressed a desire to “go out in the world and make a difference.”
Pryor said he was looking for lawyers who would challenge him. Chemistry was also important. “I want to like my law clerks,” he said.
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