What to expect at confirmation hearings

[*ruling attached below]

Democratic Sen. Elizabeth Warren, a potential 2020 presidential candidate, has called him a "political animal." Sen. Cory Booker, another Democratic potential presidential aspirant, said that people who support him are "complicit" in "evil." Democratic Sen. Bernie Sanders predicted that if he is confirmed to the Supreme Court "it would have a profoundly negative effect on workers' rights, women's rights and voting rights for decades to come."

Conversely, Lisa Blatt, a self-described "liberal feminist lawyer" who has argued 35 cases before the Supreme Court, has called him a "superstar" and "the most qualified conservative for the job." Akhil Reed Amar, a constitutional law professor at Yale Law School, called him a "superb" nominee, and called his nomination President Trump's "classiest move."

So who is Judge Brett Kavanaugh? America is about to find out, from Judge Kavanaugh himself. On Aug. 10, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) announced the hearings on Judge Kavanaugh's nomination to the Supreme Court would begin on Sept. 4. Judge Kavanaugh will give his opening statement the first day; Judiciary Committee members will begin their questions on Sept. 5. Judge Kavanaugh's extensive government experience provides ample fodder for their questions.

The Judiciary Committee has received over 4,800 pages of documents from the 307 opinions Judge Kavanaugh wrote; 6,400 pages of opinions he joined; more than 125,000 pages of records from his tenure at the White House counsel's office during the George W. Bush administration; and over 17,000 pages produced in response to a questionnaire submitted to Judge Kavanaugh by the Judiciary Committee. As if that wasn't enough, the committee has received over 184,000 pages of records relating to Kavanaugh's time working for Independent Counsel Kenneth Starr. In total, the committee has received the most Executive Branch records ever received for its consideration of a Supreme Court nominee.

From Judge Kavanaugh's tenure with the independent counsel, expect questions on the accountability of the president and the importance of an independent prosecutor (read: Robert Mueller) to keep the president in check. From Judge Kavanaugh's time at the White House counsel's office (2001-2003), expect questions on the Bush administration's war on terror and treatment of terrorists, including enhanced interrogation, rendition practices, and the detention facility at Guantanamo Bay.

From his time on the U.S. Circuit Court of Appeals for the D.C. Circuit, you can bet Judge Kavanaugh will be asked about his October 2017 dissenting opinion in Garza v. Hargan*, which concerned a non-citizen minor's rights to an abortion; his 2011 dissent in Seven-Sky v. Holder*, where he construed the Obamacare individual mandate as a tax, as Chief Justice John Roberts would do in National Federation of Independent Business v. Sebelius; his 2017 dissent in United States Telecom Assn. v. FCC*, where he found the Obama administration's net neutrality rules in violation of the First Amendment; his 2016 opinion in PHH Corp. v. CPFB, holding unconstitutional the Consumer Protection Financial Bureau; and his 2014 opinion in White Stallion Energy Center, LLC v. EPA*, where he argued the Environmental Protection Agency must perform a cost-benefit analysis before imposing air quality regulations on electric utilities, an opinion adopted by the Supreme Court in its 2015 decision, Michigan v. EPA.

Concerning Judge Kavanaugh's record on administrative law issues, he has been called "one of the most sophisticated, provocative and creative voices in the federal judiciary," and more than a third of the 307 opinions Judge Kavanaugh authored concerned administrative law. Yet he has not been shy about curbing administrative power: One of his former clerks, Jennifer Mascott, calculated that he has written 40 opinions in which he found an agency action to be unlawful.

But his influence extends beyond administrative and regulatory opinions at the D.C. Circuit: In at least 11 cases, the Supreme Court ultimately adopted legal positions Kavanaugh advanced, and in at least five of those cases, the Supreme Court explicitly cited his opinions. From the D.C. Circuit, Judge Kavanaugh has had an outsized influence on the development of American law over the last decade, a trend likely to continue should he be confirmed to the Supreme Court. Looking ahead, there are several important cases that could come before a Justice Kavanaugh, and these are sure to be explored at his confirmation hearings.

First, the Supreme Court could hear in the next few years a challenge to one of the most popular aspects of the Affordable Care Act. In June, the Trump administration joined a lawsuit by 20 states attacking the Affordable Care Act's requirement that health insurers cover individuals with pre-existing conditions. The case is pending in a federal district court in Texas and could end up before Justice Kavanaugh, who would have the opportunity to go one of potentially two routes. He could join with Chief Justice Roberts and the court's liberal justices in upholding another Obamacare provision. (Recall Chief Justice Roberts' 2012 opinion upholding the individual mandate: "it is not our role to forbid [the tax], or to pass upon its wisdom or fairness.") Or, a Justice Kavanaugh could perhaps persuade Justice Roberts, and join with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, to undermine the ACA.

Second, Judge Kavanaugh may get another swing at a familiar punching bag, the Consumer Protection Financial Bureau: A judge in the Southern District of New York recently relied on Judge Kavanaugh's 2016 analysis to find that the CFPB cannot bring an enforcement action in district court because its director removal provisions are unconstitutional. And just last month, a panel from the 5th Circuit Court of Appeals found unconstitutional another single-director independent agency, the Federal Housing Finance Agency, relying on grounds similar to those articulated by Judge Kavanaugh.

Third, and perhaps most consequential, pending before the Supreme Court is a petition for certiorari (Kisor v. O'Rourke*) asking the Supreme Court to overrule Auer v. Robbins (1997), under which courts defer to federal agency interpretations of their own regulations unless the agency's interpretation is "plainly erroneous or inconsistent with the regulation." Given the massive expansion in agency rulemaking over the last decade (think Obamacare, DACA, DAPA), this portends significant changes. The timing is not accidental, as the Supreme Court's more conservative justices have recently been questioning the propriety of judicial deference to agency interpretations.

In a 2015 case, Perez v. Mortgage Bankers Association, Justices Antonin Scalia, Thomas and Alito all questioned the wisdom and constitutionality of this Auer deference. And given Judge Kavanaugh's willingness to rein in federal agencies, and his apparent seriousness about the Article 1 command that Congress cannot delegate legislative powers to federal agencies, he may be a willing participant in this effort. Relatedly, Judge Kavanaugh has already relied on another method employed by judges to sidestep agency deference: The "major questions doctrine," which permits courts to afford agency interpretations no deference when there are major questions at issue.

Judge Kavanaugh raised the major questions doctrine in his dissent in United States Telecom Association v. FCC to say "[i]f the Supreme Court's major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule." This language led some practitioners and commentators to speculate that Judge Kavanaugh may be open to a stronger version of the "major questions doctrine" that, in the absence of a clear congressional statement to the contrary, strips away not only Chevron deference (court deference to agency statutory interpretations) for major questions, but also any agency authority to regulate concerning those major questions. Such a result would likely invite more litigation, empower courts to more closely scrutinize agency interpretations, and ultimately, curb the power of federal agencies when it comes to rulemaking and interpretation.

While senators are sure to raise myriad other issues at Judge Kavanaugh's confirmation hearings -- gay marriage (Obergefell), campaign finance (Citizens United) and public accommodation laws (Masterpiece Cakeshop) -- the above are some of the most salient issues not only for their intriguing legal issues, but for their future treatment by the Supreme Court, which may include a Justice Kavanaugh come Oct. 1. Stay tuned.