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It’s hard to find a federal judge more conservative than Brett Kavanaugh

- September 5, 2018

The Senate Judiciary Committee’s Supreme Court confirmation hearings for Judge Brett Kavanaugh are off to a contentious start, replete with protesters and an accusation of “mob rule.” The hearings will likely provide more drama than substance, however. Republicans will defend Kavanaugh as principled, Democrats will brand him as extreme, and Kavanaugh himself will reveal as little as possible.

If confirmed, Kavanaugh will replace retired Supreme Court Justice Anthony M. Kennedy, whose votes and views often made him the fulcrum on a divided bench.

So just how conservative is Kavanaugh?

Kavanaugh served a dozen years on the D.C. Circuit Court of Appeals, a court viewed as first among equals of the 12 federal appellate courts. Probing nearly 200 of Kavanaugh’s votes and over 3000 votes by his judicial colleagues, our analysis shows that his judicial record is significantly more conservative than that of almost every other judge on the D.C. Circuit. That doesn’t mean that he’d be the most conservative justice on the Supreme Court, but it strongly suggests that he is no judicial moderate.

This is how we did our research

To compare Kavanaugh with his colleagues, we collected data on D.C. Circuit decisions from 2003 (to include John Roberts’s tenure) until 2018 in four issue areas: criminal, environmental, labor and employment discrimination law. These may not be as flashy as Kavanaugh’s decisions involving abortion and gun control, but they are just as important in shaping Americans’ lives.

We looked at a total of 1,085 cases; Kavanaugh participated in 188 of them. We coded decisions as liberal if they sided with criminal defendants; supported stricter enforcement of environmental rules; upheld the labor unions’ rights; or sided with plaintiffs alleging discrimination.

Here’s what we found.

1. Kavanaugh consistently cast conservative votes

In every policy area, Kavanaugh had the most conservative or second-most conservative voting record on the D.C. Circuit.

Across all the cases studied, Kavanaugh took a liberal position about 30 percent of the time. To put that record in perspective, the rest of his colleagues took the liberal position about 40 percent of the time. His most liberal colleagues took a liberal position nearly half the time.

We can see these differences in each of the policy areas studied.

In criminal cases, Kavanaugh supported defendants 14 percent of the time, compared with a quarter of the time for the rest of his colleagues and about a third of the time for the most defendant-friendly judge. Each of the other issue areas revealed similar results: Kavanaugh adopted the conservative position roughly 10 percentage points more often than his average colleague and about 20 percentage points more than the most liberal judges.

2. Kavanaugh is one of the most conservative judges on the D.C. Circuit

Two features of the federal appellate courts allow us to compare Kavanaugh’s record to those of his colleagues. First, the court randomly assigns three judges to each panel that hears a case. That means that each judge will deliberate and compromise with a roughly similar mix of colleagues over time. Second, cases are randomly assigned to the three-judge panels, so each judge encounters a roughly similar set of cases over time.

As you can see in the figure below, we estimated ideological scores for each of the judges based on their votes in all four issue areas combined.

Three key points stand out. First, as you can see, Kavanaugh joins Judge Karen LeCraft Henderson (appointed by President George H.W. Bush in 1990) at the conservative end of the spectrum. Kavanaugh is significantly more conservative than every other judge except current Supreme Court Chief Justice John Roberts and noted conservative jurists Laurence Silberman and David Sentelle.

Second, President Barack Obama’s last nominee, Merrick Garland — whom Senate Republicans refused to consider — sits in the ideological center of the D.C. Circuit. But Garland’s record on criminal justice issues has been nearly as conservative as Kavanaugh’s, even if more liberal over all.

Third, Kavanaugh is more conservative than Douglas Ginsburg, who was nominated to the Supreme Court in 1986 but withdrew because of his controversial admission that he’d used marijuana.

3. Will Kavanaugh remain conservative if he reaches the Supreme Court?

We should be cautious in predicting how Kavanaugh might vote if confirmed. First, Supreme Court justices choose which cases they want to consider, while the circuit courts must decide all federal appeals. As a result, cases in the D.C. Circuit aren’t representative of the cases the Supreme Court hears. Second, past Supreme Court decisions, known as “legal precedents,” constrain lower court decisions. Supreme Court justices are less bound by precedent.

Still, many of the D.C. Circuit cases that we studied involved value judgments about the law and its application. Kavanaugh consistently leaned to the right in those cases. Our best guess is that he would do the same on the Supreme Court.

We conducted a similar study on Neil Gorsuch, Trump’s first appointment to the Supreme Court. Gorsuch’s 10th Circuit Court of Appeals record on immigration and employment cases was relatively moderate. Seventeen months later, there’s no doubt that Justice Gorsuch usually votes with his conservative colleagues.

But while some predicted that he’d be an extreme conservative, one measure places Gorsuch in the middle of the court’s conservative wing. In fact, he agreed with Justice Kennedy more than any other justice last term. We hesitate to draw strong conclusions from this comparison. But we find no comparable evidence of moderation in Kavanaugh’s appellate court record.

On Tuesday morning, Kavanaugh said, “A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy” and that he doesn’t “decide cases based on personal or policy preferences.” But that’s overly simplistic. The data show that judges cannot always avoid their “personal or policy preferences” in deciding cases. And Kavanaugh’s policy preferences are perhaps the most conservative on the country’s second-most-important court.

Kevin Cope (@KevinLynnCope) is a research assistant professor of law and a faculty affiliate with the department of politics at the University of Virginia.

Joshua Fischman (@JoshFischman) is the Horace W. Goldsmith Research Professor of Law at the University of Virginia.