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The Newest SCOTUS

Supreme Court Nominee Kavanaugh

How This Pick Stacks up on Criminal Justice and Dimaya

2018 Marks the second time the Trump administration will have selected a judge to sit on the United States Supreme Court. The first nomination, Justice Neil Gorsuch, widely considered to be a right-leaning partisan pick, actually sided with the defendant in the much-publicized Dimaya case.

However, now that Judge Brett Kavanaugh has been nominated to replace Justice Kennedy, a new investigation into the track-record of this new nominee has been sparked. Priya Raghavan over at the Brennan Center for Justice (at the New York University School of Law) wrote about just this issue. Here are some highlighted excerpts from her excellent piece (links preserved from original article):

Brett Kavanaugh’s Supreme Court nomination is troubling on many fronts: He appears to want the president to be above the law, he would likely curtail abortion rights, and he’d almost certainly block meaningful gun control. But we know much less about Kavanaugh’s views on criminal justice. How the nominee would shape the Court’s criminal jurisprudence in many ways remains a mystery.

Kavanaugh serves on the Court of Appeals for the D.C. Circuit, which spends much of its time reviewing federal government administrative actions and less time deciding criminal justice matters. As a result, his criminal justice decisions are few, and there are large swaths of the criminal law that Kavanaugh simply hasn’t publicly contemplated.
However, one thing is clear: Based on Kavanaugh’s limited criminal jurisprudence, there is no indication that Kavanaugh falls to the left of Kennedy on any aspect of criminal justice.

Regarding Kavanaugh’s decisions in favor of defendants:

The rare instances when Kavanaugh sides with defendants are equally telling. In U.S. v. Burwell, Kavanaugh dissented from a decision that upheld a 20-year sentence enhancement for a defendant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defendant knew the gun he used was a machine gun and that the law should require such proof. But this doesn’t necessarily mean that Kavanaugh was looking out for the little guy. Insisting on such intent requirements – mens rea, in legal terminology – could make it harder for the government to prosecute white-collar criminals, largely benefitting a small segment of affluent defendants.

In Raghavan’s opinion, and that of many criminal justice scholars, Kavanaugh would rather Booker go away and make the guidelines manual mandatory again:

Kavanaugh’s views on sentencing are more difficult to parse. He testified in 2009 that, from a policy perspective, he believed federal sentencing guidelines should be mandatory, rather than advisory, to limit judicial discretion in sentencing. He was concerned that advisory guidelines would allow judges to impose their personal views at sentencing, leading to disparate outcomes. But Kavanaugh has on several occasions disagreed with his colleagues and supported lower court judges who gave harsh, above-guidelines sentences with little to no explanation of their reasons for doing so. In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without sufficient explanation, Kavanaugh dissented, calling the majority’s holding in the latter case “confounding.” Kavanaugh’s statements on sentencing leave us wondering: how much discretion does he think judges should have?

The article goes on to ask more open ended questions that are tangentially directed at Kavanaugh, but are more of a suggestion to the Senate panel at Kavanaugh’s confirmation hearings.