Daniel M. Häusermann on Trump’s Supreme Court nominee Kavanaugh

30 July 2018. What would be unthinkable in any European country happened in the United States. On July 9, 2018, the President announced the nomination of a judge on prime time television. Donald Trump's pick for the U.S. Supreme Court is Brett Kavanaugh, who is currently an appellate judge and teaches constitutional law at Harvard and other law schools.

The second-most important decision of the President

Judge Kavanaugh himself considers Supreme Court nominations to be the second-most consequential decision that a U.S. President makes after the decision to go to war. The nine Justices that make up the U.S. Supreme Court have the power to declare federal and state laws unconstitutional, and the only way of overturning a Supreme Court decision would be to amend the U.S. Constitution — which is practically impossible.

If confirmed by the U.S. Senate, Kavanaugh, who is 53 years old, will be able to shape U.S. constitutional practice — and thus almost any aspect of American life, including abortion, criminal justice, environmental protection, immigration, minority rights and taxation — for decades.

What is Brett Kavanaugh like?

Brett Kavanaugh's nomination seems to have surprised no one. A graduate of Yale and a judge on the prestigious D.C. Court of Appeals, people already considered him a frontrunner for a Supreme Court nomination back in 2011 when I studied for a post-graduate degree at Harvard Law School. His course on the separation of powers had some of the best evaluations at the school and was wildly popular, in particular among conservative and libertarian students. As a teacher, Kavanaugh is very structured, extremely well prepared, and also quite gregarious — for instance, he has a habit of inviting his students for dinner, which is a highlight in their studies. Beyond legal topics, Kavanaugh aims to shape his students' professional judgment and instill his professional values in them. One of his many memorable quotes is: "Loyalty is important – but integrity trumps everything."

What are his influences?

Judge Kavanaugh seems to have been strongly influenced by three jobs that he held. In the late 1990s, he helped Independent Counsel Kenneth W. Starr build the case for impeaching President Bill Clinton. This experience made him conclude that sitting Presidents should not be subject to civil lawsuits or criminal investigations because they were time-consuming and distracting. President Trump, whose entourage is the subject to investigations by Special Counsel Robert Mueller, may have taken note.

Later on, Kavanaugh worked as a law clerk for Justice Kennedy, whom he is set to replace and whom he seems to admire not only for his intellect, but also for his independence of mind.

During the presidency of George W. Bush, Kavanaugh worked in different roles at the White House. He managed all documents that went to and from the President from 2003 through 2006. My impression is that with this experience he may be more willing to defer to the executive powers of the President than others.

What kind of Supreme Court Justice will he be?

In his nomination speech, Kavanaugh said: "A judge must be independent and must interpret the law, not make the law. … And a judge must interpret the Constitution as written, informed by history and tradition and precedent." This is typical of a conservative American jurist, whereas many left wing jurists prefer judges to actively change society by interpreting the Constitution in accordance with contemporary social needs and views.

Many commentators predict that Kavanaugh will be more conservative than Justice Kennedy. However, I would not be surprised if Kavanaugh developed his own distinct line of adjudicating on the Supreme Court, just like Justice Kennedy did, and if he did not care much whether he irritates people on the left, on the right, or even on both sides of the political aisle.

Dr. Daniel M. Häusermann, LL.M. (Harv.), is Privatdozent for private and commercial law at the HSG. He lived and conducted research in the U.S. for two years.

Photo: Keystone/APA/Manuel Balca Ceneta