Kavanaugh begins Congress tour, selling himself for court
By LISA MASCARO and CATHERINE LUCEY
Tuesday, July 10
WASHINGTON (AP) — President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, mapped out strategy with Republican leaders Tuesday, launching a fierce confirmation battle that could remake the court for decades and roil the midterm elections in the meantime.
Kavanaugh, a favorite of the GOP establishment, first huddled with Senate Majority Leader Mitch McConnell of Kentucky. He was then meeting with Sen. Chuck Grassley of Iowa, the Judiciary Committee chairman. Joining him were Vice President Mike Pence and former Sen. Jon Kyl, seeking the GOP backing he will need to be confirmed in the divided Senate.
Republicans have reacted positively to Trump’s pick, but McConnell has little margin of error in the final vote unless a few Democrats can be brought onboard. Republicans hold a slim 51-49 Senate majority, and pressure is mounting on Democrats from states that Trump won in 2016 to cross party lines for support.
McConnell called Kavanaugh “one of the most thoughtful jurists” in the country and blasted Democrats as “eager to try and turn judicial confirmations into something like political elections.” The GOP leader warned against engaging in “cheap political fear-mongering.”
“We’ll hear all kinds of fantastic stories about the pain and suffering that this perfectly qualified, widely respected judge will somehow unleash on America if we confirm him to the court,” McConnell said.
Pence called Kavanaugh a “good man.”
Democrats are uniting behind a strategy to turn the confirmation fight into a referendum on conservatives’ efforts to undo abortion access and chip away at other health care protections under the Affordable Care Act.
Senate Democratic leader Chuck Schumer of New York is vowing to fight the nomination “with everything I have.”
Schumer warned, “In selecting Judge Kavanaugh, President Trump did exactly what he said he would do on the campaign trail — nominate someone who will overturn women’s reproductive rights and strike down health care protections for millions of Americans.”
Trump chose Kavanaugh, a solidly conservative, politically connected judge, as he seeks to shift the nation’s highest court ever further to the right.
A product of the Republican legal establishment in Washington, Kavanaugh, 53, is a former law clerk for retiring Justice Anthony Kennedy. Like Trump’s first nominee last year, Justice Neil Gorsuch, Kavanaugh would be a young addition who could help remake the court for decades with rulings that could restrict abortion, expand gun rights and roll back key parts of” Obamacare.”
In a prime-time televised announcement Trump called Kavanaugh “one of the finest and sharpest legal minds of our time.”
“Brett Kavanaugh has gotten rave reviews — rave reviews — actually, from both sides,” Trump said Tuesday as he left the White House for a weeklong overseas trip. “And I think it’s going to be a beautiful thing to watch over the next month.”
With Kavanaugh, Trump is replacing a swing vote on the nine-member court with a staunch conservative. Kavanaugh, who serves on the Court of Appeals for the D.C. Circuit, has taken an expansive view of executive power and has favored limits on investigating the president.
Speaking at the White House, Kavanaugh pledged to preserve the Constitution and said that “a judge must be independent and must interpret the law, not make the law.”
Some conservatives have expressed concerns about Kavanaugh, questioning his commitment to social issues like abortion and noting his time serving under President George W. Bush as evidence he is a more establishment choice.
Some conservative and libertarian-leaning activists were disappointed by the pick and doubted it would provide Republicans with the midterm election boost they are looking for to motivate voters to the polls.
“This is going to give heartburn to some conservatives,” said Brian Darling, a former Republican counsel to Sen. Rand Paul, R-Ky.
“It’s not the pick conservatives had hoped for,” Darling said.
Paul was among some Republican senators who had favored other options. But the senator tweeted after the announcement that he looked forward to meeting Kavanaugh “with an open mind.”
With Democrats determined to vigorously oppose Trump’s choice, the Senate confirmation battle is expected to dominate the months leading up to November’s midterm elections. It typically takes about two months to confirm a justice.
Democrats have turned their attention to pressuring two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, to oppose any nominee who threatens the Roe v. Wade Supreme Court decision. The two have supported access to abortion services.
Kavanaugh is likely to be more conservative than Justice Kennedy on a range of social issues. At the top of that list is abortion. A more conservative majority could be more willing to uphold state restrictions on abortion, if not overturn the 45-year-old landmark Roe v. Wade decision that established a woman’s constitutional right.
Like the other eight justices on the court, Kavanaugh has an Ivy League law degree, spending his undergraduate and law school years at Yale. Since 2006, he has been a judge on the federal appeals court in Washington. He also was a key aide to Kenneth Starr during Starr’s investigation of President Bill Clinton, worked on behalf of George W. Bush’s campaign during the election recount in 2000 and served in the Bush White House.
Kavanaugh’s many written opinions provide insight into his thinking and also will be fodder for Senate Democrats who will seek to block his confirmation. He has written roughly 300 opinions as a judge, authored several law journal articles, regularly taught law school classes and spoken frequently in public.
Kavanaugh’s views on presidential power and abortion are expected to draw particular attention. Drawing on his experience in the Clinton investigation and then in the Bush White House, he wrote in a 2009 law review article that he favored exempting presidents from facing both civil suits and criminal investigations, including indictment, while in office. That view has particular relevance as special counsel Robert Mueller is looking into Russian meddling in the 2016 election and whether the Trump campaign played any role in a foreign interference plot.
Associated Press writers Zeke Miller and Mark Sherman contributed to this report.
Kavanaugh: ✔️ Praised *dissent* in Roe ✔️ Criticized Roberts ruling on Obamacare ✔️ Says sitting POTUS can’t be indicted/can fire special counsel whenever he wants ✔️ Opposes net neutrality ✔️ Opposes consumer bureau ✔️ Says assault weapon bans are unconstitutional.
Trump will soon be off to visit his Boss in the Kremlin, concede the Crimea to our enemy, get his marching orders for the next year and plan the Propaganda Campaign to influence the 2018 elections. How can our Congress let him get away with it all?
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Opinion: Kavanaugh Opposition Rings Hollow
By Ted Harvey
If the Left’s Trump Derangement Syndrome was still in doubt, the nomination of Judge Brett Kavanaugh to the Supreme Court erased all of it.
Before President Trump even nominated Kavanaugh, Senate Minority Leader Chuck Schumer painted the nominee as an enemy of women and children. In one tweet, Schumer claimed “Kavanaugh has taken numerous positions that question his ability to be an independent check on President Trump.” In another, he argued “Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans.”
The tweets are vague for a reason. Schumer is determined to oppose any Trump nominee, regardless of his or her individual merits. The Senate Democrat also decided to criticize Judge Amy Coney Barrett, another Supreme Court contender at the time, because she “has given every indication that she will be an activist judge.”
The blatant politicking got worse after Kavanaugh’s official nomination. The organizers of the anti-Trump Women’s March mistakenly led with this response: “In response to Donald Trump’s nomination of XX to the Supreme Court of the United States, the Women’s March released the following statement …” In the next paragraph, their statement included the name, but it was misspelled as “Cavenaugh.”
Schumer, meanwhile, justified his opposition because Kavanaugh was selected from a list of 25 candidates compiled by the right-leaning Federalist Society. Without even delving into his specific qualifications, Schumer claimed Kavanaugh must be “one of these hard-right judges” because of his connection to the Federalist Society.
Even Matthew Yglesias, one of Vox’s most left-wing writers, conceded Kavanaugh is a “very normal Republican pick” — high praise coming from Yglesias, who infamously celebrated Andrew Breitbart’s death.
But the Vox columnist went on to oppose President Trump’s nominee because, well, President Trump is a threat to American democracy. In his words: “The fact that Kavanaugh is normal underscores how real the risk is to democracy. It doesn’t mitigate it.” Ygelsias concludes: “Putting Brett Kavanaugh on the Supreme Court is very normal Republican politics, and that’s exactly the problem.”
You can’t make this stuff up.
It wasn’t so long ago that even Democrats trusted Kavanaugh to do his job. Why? Because he’s an exceptional jurist who takes the Constitution seriously.
In 2006, the Senate signed off on Kavanaugh’s nomination to the Court of Appeals for the District of Columbia Circuit in a 57-36 vote. Four Senate Democrats supported Kavanaugh, including Sen. Tom Carper of Delaware. At a time when Democrats were obstructing many of President George W. Bush’s judicial nominees, Kavanaugh was one of the few to cross the finish line.
How times have changed. Last year, Carper shoved aside his bipartisan bona fides and opposed Judge Neil Gorsuch’s nomination. He now calls Kavanaugh a “profound disappointment” and challenges Republicans to “bring on the fight.” Schumer similarly vowed to oppose the nominee with “everything I’ve got.”
When they do, take it for what it is — partisan politics, and nothing more.
Senate Republicans should ignore the hot air and do what’s right: Confirm Brett Kavanaugh. To quote the one and only Matthew Yglesias, he is a “very normal Republican pick.”
ABOUT THE WRITER
Ted Harvey is chairman of the Committee to Defend the President. He wrote this for InsideSources.com.
Opinion: Delrahim Doctrine Resetting the Patent-Antitrust Debate
By James Edwards
A reset is underway in the patent-antitrust debate.
This debate had devolved to an unproductive state. On one side, patent owners whose “hold-up,” or refusal to license their patents at a rate the would-be licensees demand, getting persecuted for actually using the exclusivity their patents supposedly guarantee.
On the other side, technology implementers, who license others’ patents, are increasingly practicing “hold-out.” The would-be licensees refuse to license the patent, claiming the fee isn’t fair. Hold-out puts implementers in the driver’s seat because the patented items often comprise components of end products, not end products themselves.
Fortunately, bias against innovators is getting fresh scrutiny. This matters if we’re to take full advantage of our competitive edge: American innovation.
“I view the collective hold-out problem as a more serious impediment to innovation,” assistant attorney general for antitrust Makan Delrahim told a law school audience last fall at the University of Southern California.
The reason is asymmetry in the bargaining, in favor of implementers over innovators, apart from antitrust enforcement.
“Innovators make an investment before they know whether that investment will ever pay off,” Delrahim said. “If the implementers hold out, the innovator has no recourse, even if the innovation is successful.
“In contrast, the implementer has some buffer against the risk of hold-up because at least some of its investments occur after royalty rates for new technology could have been determined. Because this asymmetry exists, underinvestment by the innovator should be of greater concern than underinvestment by the implementer.”
Delrahim underscored this inherent asymmetry in his “New Madison” speech at the University of Pennsylvania. To the extent standard-setting organizations overemphasize patent hold-up in their policies, they too tilt the playing field in favor of technology implementors and against risk-takers.
Implementers, with their patent troll narrative’s traction and the popularity of their patent-aggregating products, won a sympathetic audience in the previous administration and with some lawmakers.
Most distressingly, antitrust enforcers have put their thumbs on the scales for implementers and against patent owners. This has given patent hold-out misconduct a pass, while patent owners, especially those whose technology an standard-setting organizations determines to be superior, have gotten suspicious looks from enforcers.
The playing field, tilted in licensees’ favor, has referees who’ve presumed anticompetitive conduct if a patent owner doesn’t accept implementers’ holding up licensing and themselves deciding what a “fair,” “reasonable,” “nondiscriminatory” royalty is.
The Delrahim Doctrine contrasts markedly from the status quo.
Such thinking aligns with President Reagan’s Justice Department. Reagan adjusted the antipatent antitrust rules Justice applied to patent licensing from a per se standard to the rule of reason. The facts would be weighed case by case where the patent owner is simply trying to exercise his or her patent rights.
Reagan’s Commission on Industrial Competitiveness counseled fairness toward innovators. “Technological innovation is a mainstay of the American economy,” it said. “It is the foundation of our economic prosperity, our national security, and our competitiveness in world markets.”
With innovation vital to our country’s economic and societal benefit, the commission noted the importance of fair treatment at the antitrust nexus. It pointed out that “the very act of (patent) licensing is pro-competitive rather than anti-competitive” and justifies “view(ing antitrust) restrictions in light of all the surrounding circumstances, especially the impact on (national) competitiveness.”
Which brings us back to Delrahim. His Reaganesque views on these very matters are becoming manifest through his public remarks.
The stated purpose of the Delrahim Doctrine: “To help foster debate toward a more symmetric balance between the seemingly dueling policy concerns between intellectual property and antitrust law.” For standard-setting organizations specifically, “some symmetry between these competing interests.”
The reason for the Delrahim Doctrine: “Patents are a form of property, and the right to exclude is one of the most fundamental bargaining rights a property owner possesses. Rules that deprive a patent holder from exercising this right — whether imposed by (a standard-setting organization) or by a court — undermine the incentive to innovate and worsen the problem of hold-out.”
Standard-setting organizations should recognize how their rules affect future innovation. “Standard setting organizations, as collective bodies, themselves should avoid overindulging theories of patent hold-up, to the detriment of patent rights,” Delrahim said at Penn.
“SSOs should instead strive to ensure that their patent policies create maximum incentives for innovators to invent (or at a minimum don’t curtail incentives to innovate), and for licensees to implement.”
At least the Antitrust Division won’t be as antagonistic toward America’s innovators and risk-takers under Delrahim.
ABOUT THE WRITER
James Edwards, executive director of Conservatives for Property Rights, is patent policy adviser to Eagle Forum Education & Legal Defense Fund. He wrote this for InsideSources.com.