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Supreme Court Picks’ Disagreements Show Stakes of Confirmation

Brett Kavanaugh, Merrick Garland diverge on key issues at circuit court level

Supreme Court nominee Brett Kavanaugh, right, and White House Counsel Don McGahn in the Capitol after meetings with senators Tuesday. (Tom Williams/CQ Roll Call)
Supreme Court nominee Brett Kavanaugh, right, and White House Counsel Don McGahn in the Capitol after meetings with senators Tuesday. (Tom Williams/CQ Roll Call)

The judge that President Barack Obama unsuccessfully tried to put on the Supreme Court in 2016 and the judge President Donald Trump selected Monday sit on the same federal appeals court — and their divergent rulings in recent cases echo the Senate’s partisan divide on key policy issues.

The two judges on the U.S. Court of Appeals for the District of Columbia Circuit — Obama pick Merrick Garland and Trump pick Brett Kavanaugh — went different ways in just the past two years on cases about immigration and abortion, criminal sentencing, police misconduct claims and employee rights.

The cases highlight the political stakes of Supreme Court confirmation fights and their potential spillover into the nation’s social and legal landscape as the Senate begins a battle over Kavanaugh in the months before the midterm elections.

The Senate is just starting to dig through Kavanaugh’s extensive legal and political history in a confirmation process likely to take months. Democrats, still stung from Majority Leader Mitch McConnell’s refusal to hold a confirmation vote for Garland in 2016, have already labeled Kavanaugh “far outside the legal mainstream.”

But a unanimous Supreme Court sided with Kavanaugh’s view in one of those cases, underscoring Trump’s argument Monday that his conventionally conservative pick had a track record of opinions that are ultimately backed up or adopted by the high court.

Watch: Doing the SCOTUS Math — Seven Senators, Three Factions, One Crucial Vote

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Court watchers often look to where judges disagree with other judges for clues about their judicial philosophy and how they might rule if elevated to the Supreme Court. Garland was appointed to the court by Bill Clinton in 1997, while Kavanaugh was appointed by George W. Bush in 2006.

While not comprehensive, the cases in which Garland and Kavanaugh diverged since the former’s unsuccessful nomination in 2016 offer a glimpse into how McConnell’s confirmation gambit that year may alter the direction of the court. It also does not capture all the times the two judges agreed.

Aaron Nielson, an associate professor at Brigham Young University Law School and a former clerk for Justice Samuel A. Alito Jr. and for Judge Janice Rogers Brown of the D.C. Circuit, identified the following Garland-Kavanaugh splits:

Police misconduct

A D.C. Circuit panel ruled that District police officers who responded to a complaint about loud music and illegal activities in a vacant house lacked probable cause to arrest partygoers and could be sued for their actions. The full D.C. Circuit in 2016 declined to review that decision, in a 6-4 vote, and that’s where Garland and Kavanaugh split.

Kavanaugh authored a dissent, joined by three other judges, that said the panel’s opinion contravened “emphatic Supreme Court directives” that police officers may not be held liable for damages unless the officers were plainly incompetent or knowingly violated clearly established law. The majority said they disagreed because of the facts in the case, not the law.

But the Supreme Court reviewed the case and took Kavanaugh’s side in January, in a unanimous ruling that found the D.C. Circuit “failed to follow two basic and well-established principles of law” when analyzing the arrests, and did not follow a “straightforward analysis” on whether the officers could be sued.

The case is Wesby v. District of Columbia, Docket No. 12-7127.

Criminal sentencing

Garland and Kavanaugh diverged in a June decision in a case about drug-related violence. Garland and another judge ruled to vacate the sentences of two criminal defendants because of judicial errors, one of them because a district judge said he wanted to make an example out of one defendant but never explained why.

“The law’s demand that a court explain why a defendant is treated more harshly than other similarly situated defendants safeguards a fundamental component of justice: parity in criminal sentencings,” the panel’s opinion states. “That aspect of the process broke down in this case.”

Kavanaugh, in a dissent that struck law-and-order themes, said he found that “confounding,” because he could identify at least five reasons why the judge concluded this wasn’t an ordinary case.

The case is United States v. Brown, Docket No. 15-3056.

Abortion and immigration

In what is likely to be one of the most talked-about cases during Kavanaugh’s confirmation hearings, the full D.C. Circuit ruled against the Trump administration in October on whether to allow a minor immigrant in custody in Texas to get an abortion.

Garland did not write separately in the order, but Kavanaugh and other judges did. Judge Patricia Millett wrote that the majority of the D.C. Circuit agreed that the Constitution fully protects the teenager’s decision “whether to continue or terminate her pregnancy.” And the government showed no justification for “asserting a veto right” over the teenager by keeping her in custody.

Kavanaugh authored a dissent that said the decision “is ultimately based on a new constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”

The Trump administration sought to have the D.C. Circuit decision thrown out by the Supreme Court, even though the immigrant teen received her abortion. The justices, in an unsigned opinion with no dissenters, granted that request because the abortion meant the case was now moot.

The case is Garza v. Hargan, Docket No. 17-5236.

Employee rights

Garland and Kavanaugh split on two cases from the National Labor Relations Board in 2017.

On a three-judge panel, Garland and another judge backed the NLRB when it found a hospital had violated a fair labor law, in part because the hospital didn’t turn over documents requested by the union. The majority agreed with the board’s ruling that the union’s interest in the information prevailed over the hospital’s confidentiality interests.

Kavanaugh dissented from that part of the decision and sided with the hospital, writing that “the hospital’s confidentiality interest in the requested information is weighty,” and the union’s need for that information is “minimal at best.”

In another decision, Garland wrote a majority opinion that backed the board’s decision that CNN had made hiring decisions that were motivated by anti-union considerations.

Kavanaugh would have sided with CNN, saying that the board “jumped the rails” in its analysis and he did not see substantial evidence that CNN discriminated when making those hiring decisions.

The cases are NLRB v. CNN, Docket No. 15-1112, and Midwest Division-MMC v. NLRB, Docket No. 15-1312.

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