A judge’s style of questioning at oral arguments can say a lot about his or her approach to the law. That’s true both on the D.C. Circuit and on the famously hot bench of the Supreme Court.
Some judges are like Samuel Alito and Sonia Sotomayor, known for hurling sharp questions from the bench that often telegraph how they will decide a case. Some fit the mold of Stephen Breyer, whose meandering, fact-bound hypotheticals reveal his love of pragmatism. Some resemble the famously inscrutable Anthony Kennedy, whose questions to advocates often left court-watchers scratching their heads. And some rare judges, like Clarence Thomas, hardly ever say a word.
What kind of justice would Judge Kavanaugh be? With a 12-year record presiding at oral arguments in the D.C. Circuit, Kavanaugh has done a lot of talking—and it’s safe to say that, if he is confirmed to the Supreme Court, he will jump right into the rhetorical free-for-all that characterizes most arguments at 1 First Street these days.
The lawyers arguing before him would be well advised to pay attention to what he says. A Circuit Breaker review of audio recordings of D.C. Circuit arguments over Kavanaugh’s judicial career suggests that his comments during arguments frequently foreshadow how he plans to rule.
Questions That Make a Point
In the weeks since his nomination, analysts from all corners have been reading Kavanaugh voraciously and commenting on all he has written. This article is not one of those. In addition to reading what was written, we decided to listen. What we heard was a judge who actively engages with counsel for both sides, who isn’t afraid to interrupt, and whose questions frequently seem designed to convey his own views about a case rather than to elicit information.
His aggressive and earnest style dates back to the very first time Kavanaugh took the bench at the D.C. Circuit—on Sept. 11, 2006. Five years to the day after a devastating attack that sent this country to war, Kavanaugh and two of his colleagues faced an unresolved constitutional question directly tied to the hostilities.
The case was Kiyemba v. Bush. Jamal Kiyemba was a Ugandan citizen held at the time in military detention at Guantanamo Bay, Cuba. Kiyemba was afraid the government was going to transfer him to the custody of another country that intended to torture him, and he asked the court to require 30 days notice from the government before doing so. The issue was whether courts could second-guess the government’s decision to transfer a detainee. The case set up a classic question of power balance between co-equal branches.
A former Bush White House staffer and no stranger to the criticisms of Guantanamo detention policies, Kavanaugh hit the ground running as an active participant, and he did not stop until he had interrupted counsel no fewer than 13 times.
The court eventually held in Kiyemba that courts could not second-guess the government’s decision to transfer a Guantanamo detainee nor could they bar the government from releasing the detainee to another sovereign.
As it turns out, each of Kavanaugh’s interjections during oral argument telegraphed his view of the case, which he articulated in a concurrence.
Here’s Kavanaugh at oral argument making the point that a ruling in favor of the government would not prevent Congress from further regulating the executive’s transfer of wartime detainees:
And here he is expressing his view that courts cannot second-guess the executive’s assessment that detainees are not likely to be tortured after transfer:
Both points were clearly at the front of the young Kavanaugh’s mind going into oral argument, and both ended up being central to his concurrence.
That first-day performance was not an anomaly. Throughout his career on the D.C. Circuit, Kavanaugh’s style at oral arguments has been both limpid and loquacious. Unlike Kennedy, whom he is nominated to replace, Kavanaugh rarely appears to arrive at arguments genuinely undecided and does not obfuscate how he’s feeling about a case.
A Helping Hand to Oral Advocates
Kavanaugh, however, is no acid-tongued tyrant from the bench. He commonly helps out advocates who are struggling for words or facing hostile questions from other members of the panel. In a 2011 case about the court’s ability to review an FBI decision regarding an employee’s security clearance, Kavanaugh got props from the FBI’s lawyer for framing the argument better than he had framed it:
Once again, Kavanaugh tipped his hand on his opinion during the argument in that case, Rattigan v. Holder. As the above clip foreshadowed, he dissented from the court’s order allowing at least some judicial review of the FBI’s decision to say that he believed the court had no role in reviewing such decisions.
Kavanaugh can also be a bit wily. Later in the argument, he goads the lawyer for the challengers into agreeing with him that this issue was for Congress to decide and not the courts. Judges Rogers and Tatel had to intervene to tell counsel to “be careful” and “that doesn’t help your argument.”
A Case That Kavanaugh Could Hear Again
More recently, Kavanaugh participated in Archdiocese of Washington v. WMATA, a case involving the D.C.-area transit authority’s policy barring religious-themed ads on city buses.
During oral argument, while pressing WMATA lawyer Don Verrilli, he loudly voiced the view that banning churches from advertising is “odious to our constitution.”
Kavanaugh was nominated for the Supreme Court shortly after this case was argued, and so he played no part in the court’s decision, but it is easy to see where he was going—and it’s easy to see he probably would not have agreed with his more liberal colleagues, Judges Rogers and Wilkins, who upheld the WMATA policy.
The WMATA case, along with several others on similar questions percolating in the D.C. federal courts, may present an interesting future issue if Kavanaugh is confirmed. Sometimes a justice will recuse from a case that he or she was involved in before it reached the Supreme Court, but it is a curious question whether a newly-minted justice would recuse if he participated in oral argument but did not take part in the decision.
If the all-star slate of advocates in the WMATA case—Verilli and Paul Clement, both former solicitors general—is any indication of its prospects for a cert grant, Kavanaugh may face that recusal decision.
And if past is prologue, Kavanaugh will once again hit the ground running in oral arguments and give court-watchers and listeners alike plenty to try and keep up with.
