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Kavanaugh’s Place Among Court’s Conservatives Unclear

July 16, 2018, 7:51 PM

Judge Brett Kavanaugh will likely be a reliable conservative vote if confirmed to the U.S. Supreme Court. But it’s hard to pin him down further than that, court watchers told Bloomberg Law.

Among the current conservative justices, Chief Justice G. Roberts Jr. is generally thought of as center-right; Justice Clarence Thomas is almost universally considered the most conservative; and Justices Neil M. Gorsuch and Samuel A. Alito Jr. fall somewhere in between.

But the longtime D.C. Circuit judge isn’t easy to pin down, court watchers say.

Instead of being like any particular current justice, it’s likely that Justice Kavanaugh will be like Judge Kavanaugh, Roman Martinez, a partner in Latham & Watkins LLP’s Supreme Court & Appellate Practice, Washington, told Bloomberg Law.

Kavanaugh seems to reflect aspects of several of the current justices, James Romoser, co-creator of the D.C. Circuit Breaker blog, told Bloomberg Law.

He doesn’t fit perfectly into the mold of any of them, really, Martinez said.

Like Alito, Thomas

Kavanaugh will almost certainly vote with the court’s conservative bloc on a range of issues, A. E. Dick Howard, a professor at the University of Virginia School of Law, Charlottesville, Va., who focuses on the Supreme Court, told Bloomberg Law.

The question is whether he will be a “slash and burn” conservative like Thomas, or if he’ll be drawn to a more incrementalist style like Roberts.

Kavanaugh is somewhat of a “law and order” judge in criminal matters, Martinez said. That suggests that he’ll be more like Thomas and Alito.

That’s borne out by two indices that attempt to measure a judge’s ideological bent.

Kavanaugh would be the third most conservative justice according to the Cope-Feldman Ideology Score, which is based on surveys done by lawyers who practice in front of the judge while on the circuit courts. Kavanaugh is between Thomas and Alito by this measure.

But the Judicial Common Space measure suggests that Kavanaugh will be even more conservative—he’s just to the left of Thomas by this measure. That score is based on the ideological composition of the political branches at the time the judge is nominated.

But a one-dimensional analysis can’t paint a complete picture of Kavanaugh.

Even in the criminal context, there are some important exceptions to his law and order focus, Martinez said.

Martinez noted that Kavanaugh has ruled in favor of criminal defendants when the government failed to prove that the defendant acted with actual knowledge.

And Kavanaugh has expressed concern over the potential abuse in false statement prosecutions and the use of acquitted crimes for sentence enhancements.

Maybe Gorsuch, Scalia

Aaron Nielson, though, suspects Kavanaugh will be a lot like Gorsuch and the late Justice Antonin Scalia. Nielson is a professor at Brigham Young University Law, Provo, Utah, who has reviewed all of Kavanvaugh’s concurring and dissenting opinions.

He seems to take “separation of powers very seriously,” Nielson told Bloomberg Law. All three judges worry about what they see as government overreach, especially when it comes to administrative agencies, Nielson said.

Kavanaugh is concerned with regulatory power and reining in the administrative state, like Gorsuch and Scalia, Romoser said.

Could Be Roberts

But several court watchers said they wouldn’t be surprised if Kavanaugh ended up more in the mold of Roberts, now considered the court’s center.

Both Roberts and Kavanaugh spent time on the D.C. Circuit, which has a reputation for being a very collegial court, Howard said.

So it’s unlikely Kavanaugh will be a bomb-thrower, Sam Erman, a professor at the University of Southern California Gould School of Law, Los Angeles, told Bloomberg Law. Erman, like Kavanaugh, clerked for Justice Anthony M. Kennedy.

Kavanaugh may, in the mold of Roberts, end up being more of a consensus builder for the conservative justices, coming up with creative ways to solve legal issues, Erman said.

Katie Barlow, the other co-creator of the D.C. Circuit Breaker blog, noted that both Roberts and Kavanaugh have advocated for a moderate way to cut back on Chevron doctrine.

That doctrine, which has been a target of Gorsuch’s, requires that courts defer to agency interpretations of ambiguous laws.

Roberts and Kavanaugh, both skeptical of administrative power, have advocated for limiting Chevron, rather than undoing it all together, Barlow said.

Most Like Kavanaugh

But justices often evolve once they are on the Supreme Court, Romoser said. So it’s hard to know for sure what kind of justice Kavanaugh will be, he said.

Kavanaugh has been a judge on what’s considered the nation’s second most important court for a long time, though, Martinez said. He has authored nearly 300 opinions.

That long record suggests that he isn’t particularly like any of the current justices, Nielson said.

He’s his own man, and will continue to be so on the Supreme Court, Martinez said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at