Over here at the Brennan Center's website, Priya Raghavan has a review of some of the criminal justice decision of new SCOTUS-nominee Judge Brett Kavanaugh under the heading "Open Questions: Brett Kavanaugh and Criminal Justice: Kavanaugh’s record is sparse, but that makes understanding his stance on the issues all the more important." Here is an excerpt (with links from the original and a little emphasis added):
The rare instances when Kavanaugh sides with defendants are equally telling. In U.S. v. Burwell, Kavanaugh dissented from a decision that upheld a 20-year sentence enhancement for a defendant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defendant knew the gun he used was a machine gun and that the law should require such proof. But this doesn’t necessarily mean that Kavanaugh was looking out for the little guy. Insisting on such intent requirements — mens rea, in legal terminology — could make it harder for the government to prosecute white-collar criminals, largely benefitting a small segment of affluent defendants.
Kavanaugh’s views on sentencing are more difficult to parse. He testified in 2009 that, from a policy perspective, he believed federal sentencing guidelines should be mandatory, rather than advisory, to limit judicial discretion in sentencing. He was concerned that advisory guidelines would allow judges to impose their personal views at sentencing, leading to disparate outcomes. But Kavanaugh has on several occasions disagreed with his colleagues and supported lower court judges who gave harsh, above-guidelines sentences with little to no explanation of their reasons for doing so. In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without sufficient explanation, Kavanaugh dissented, calling the majority’s holding in the latter case “confounding.” Kavanaugh’s statements on sentencing leave us wondering: how much discretion does he think judges should have?
Kavanaugh has had little chance to opine on those subjects that comprise the hallmarks of Kennedy’s criminal justice legacy, such as the death penalty, juvenile justice, and prison overcrowding. But it seems unlikely that Kavanaugh will follow his old boss’ lead, especially given his alignment with his “first judicial hero” William Rehnquist, whose far-right views on many issues, including criminal justice, fell well outside the mainstream.
To be sure, conservatives do not always side with law enforcement. Kavanaugh’s high school classmate and Kennedy clerk colleague, Justice Neil Gorsuch, recently sided with the defendant in Session v. Dimaya, a major ruling that found parts of the immigration law unconstitutionally vague. Kavanaugh could surprise us, too.
Criminal cases comprise a sizeable portion of the Supreme Court’s docket, and the opinions from them can reverberate down to every encounter with police, as happened with the Miranda warning. As just one example, this fall the Court will hear Timbs v. Indiana and decide whether the Eighth Amendment prohibition against excessive fines applies to the states, effectively determining how much criminal defendants can be fined.
Before he is confirmed, the Senate — and the American people — must have a better sense of Kavanaugh’s thinking about criminal justice. During his confirmation hearings, Senators should ask — and Kavanaugh should answer with specifics — the following questions:
- Given the stark racial disparities in the criminal justice system, how would he ensure equality under the law?
- Does he believe that the meaning of the Constitution, specifically the Eighth Amendment prohibition against cruel and unusual punishment, can change over time?
- What is his stance on solitary confinement?
- What are the limits of police power?
- What are his beliefs about mandatory minimums and judicial discretion in sentencing?
- Does he believe that fines and fees levied on criminal defendants should be limited?
I am always deeply troubled by the deeply misguided notion that preserving a serious commitment to mens rea in the criminal law does not help the "little guy," and I find almost comical the assertion that the views of Chief Justice William Rehnquist "fell well outside the mainstream." Nevertheless, depsite this review being more than a bit too partisan, I am still glad to see it spotlight criminal justice concerns and its suggestion that Senators ask SCOTUS-nominee Kavanaugh a bunch of question about these issues. And I think the questions I bolded above are on topics that seem to me especially timely.
That said, I think good questions to a SCOTUS nominee should not be about "his stance" or "his beliefs" as if he were seeking an elected office where he would be expected to put policy preferences into action. Rather, sound and effective questions should focus on the text of the Constitution and existing SCOTUS precedents in order to explore how the nominee's judicial philosophy is likely to find expression as these issues come before the court in the years ahead. In this post on a Sunday morning about 14 months ago, I gave some examples of how I might structure key questions in the run up to Justice Neil Gorsuch's confirmation hearing:
- In light of the Apprendi, Blakely, Booker line of constitutional rulings, and especially in the wake of the late Justice Scalia's dissent from the denial of cert a few years ago in Jones v. US, do you think it is important for the Supreme Court to soon take up the issue of whether, when and how federal judges may rely on so-called acquitted conduct when calculating guideline sentencing ranges and imposing sentences?
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In light of modern capital jurisprudence since Gregg and the more recent Graham, Miller, Montgomery line of constitutional rulings, which have announced various constitutional limits on only two types of punishments, do you think the Eighth Amendment has generally be interpreted too broadly or too narrowly as a limit on modern punishment practices?
Some prior related posts:
- What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
- Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?
- Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
- Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?
- An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
- With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
- A quick look at how Justice Kennedy's retirement might impact capital punishment jurisdrudence
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