Judge Brett Kavanaugh’s nomination to the Supreme Court could mean a tough confirmation fight — for his vacant seat in the U.S. Court of Appeals for the District of Columbia Circuit.
After the Supreme Court, the D.C. Circuit is often considered the second-most important in the country. The court plays a particularly oversized role in environmental law, as it hears most disputes over national regulations.
"When litigants challenge rules that federal agencies write, like rules that help ensure that we have clean air and clean water and rules to help protect workers, those challenges are most often heard by the D.C. Circuit," California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said during the confirmation hearing for President Trump’s first D.C. Circuit nominee, Gregory Katsas.
The court is also a steppingstone for the Supreme Court. Its judges are often tapped for the higher court. If he’s confirmed, Kavanaugh would be the sixth justice originating from the D.C. Circuit since World War II.
Kavanaugh’s confirmation would give Trump his second chance to appoint an individual to the powerful court, and one who could have a hand in litigation over the president’s deregulatory agenda.
"I expect Trump and his folks will look for somebody who is an originalist, a literalist. Leonard Leo and the Federalist Society folks will have some names," said Carl Tobias, a law professor at the University of Richmond. Leo is the president of the conservative legal society.
Last year, the Senate confirmed Katsas, a prominent conservative attorney, to replace Judge Janice Rogers Brown, who retired without seeking senior status. Katsas faced tough questions from Democrats over his prior role in the White House counsel’s office and squeaked through the Senate on a 50-48 vote.
Kavanaugh’s confirmation to the Supreme Court would not necessarily change the dynamics on the D.C. Circuit.
President Obama left the court with a solid 7-4 liberal majority among active judges. That breakdown did not shift with Trump’s appointment of Katsas, because Brown was among the court’s most conservative jurists.
If Trump taps someone with Federalist Society credentials, as he has done for many prior circuit court appointments, Democrats would likely put up a big fight. And if Democrats capture the Senate in the midterm elections before a replacement is confirmed, it could mean an extended vacancy for the court.
A long vacancy could tilt the court even more toward its liberal wing, making it more likely that cases would be heard by panels consisting of a majority of Democratic-appointed judges.
"It would skew quite a bit to the appointees of Democratic presidents in the short term," said Lisa Heinzerling, a law professor at Georgetown Law School.
It then would likely take a new appointee time to ramp up and become familiar with the court’s cases and processes.
Kavanaugh’s leaving would be a "huge loss" for the court, Tobias said.
"He’s a real workhorse. The number of opinions he’s written is astronomical, so you lose that as well as the expertise that he’s built over the 12 years," Tobias said. "He won’t be immediately replaceable. It’ll take some time I would think for people to get up to speed."
Speaking at a 2015 convention of the Federalist Society, Kavanaugh said that for potential nominees, "knowing your senator is really important."
Many D.C. Circuit nominees historically "have worked in the Justice Department or the executive branch or somewhere in D.C. government circles," he said at the time. Prior to joining the D.C. Circuit, Kavanaugh was a lead lawyer on independent counsel Ken Starr’s investigation of President Clinton and worked for the George W. Bush White House.
But, Kavanaugh added, "some senators were not convinced that coming from the White House was the best preparation for a seat on the D.C. Circuit, and that’s one of the reasons it took three years to get confirmed." Kavanaugh was nominated in 2003 and confirmed in 2006 (Greenwire, Nov. 16, 2015).
As for Kavanaugh’s current spot on the appeals court, Environment and Public Works ranking member Tom Carper (D-Del.) said yesterday the Senate "shouldn’t put our cart before the horse."
He pointed to nominees who have gone through his panel — such as EPA chemical safety pick Michael Dourson and White House Council on Environmental Quality nominee Kathleen Hartnett White — who never made it through the full Senate.
"If I were Judge Kavanaugh, I wouldn’t be measuring the drapes over in the Supreme Court too soon," Carper said.
Reporter Nick Sobczyk contributed.