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July 9, 2018

DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

The smart money, as reported here, has been on President Trump nominating DC Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy.  And, as reported here, that is who Prez Trump picked tonight.  This meaty SCOTUSblog profile of Judge Kavanaugh includes this criminal justice section:

In criminal cases outside the detainee context, Kavanaugh has tended to rule against defendants, although in doing so, he has largely agreed with his colleagues. In 2008, United States v. Askew, however, Kavanaugh dissented from an en banc ruling that found a Fourth Amendment violation when police officers unzipped a defendant’s jacket without his permission and without probable cause or a warrant.  And Kavanaugh has supported police officers’ claims of qualified immunity from civil-rights lawsuits.  For example, in Wesby v. District of Columbia, which was reversed this term by the Supreme Court, Kavanaugh dissented from denial of rehearing en banc, stating that because “[t]he officers were not “plainly incompetent” and did not “knowingly violate” clearly established law when they made these arrests,” they were entitled to qualified immunity.  But, dissenting from a 2012 en banc opinion upholding the application of a mandatory-minimum sentence in United States v. Burwell, Kavanaugh would have ruled for the defendant.  In his words, “The majority opinion holds that a person who committed a robbery while carrying an automatic gun – but who genuinely thought the gun was semi-automatic – is still subject to the 30-year mandatory minimum sentence. The majority opinion thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know. In my view, that extraordinary result contravenes the traditional presumption of mens rea long applied by the Supreme Court.”

I will likely blog about Burwell and about other significant sentencing rulings in the coming weeks, and I will also try to flag other commentaries about Judge Kavanaugh's approach to criminal justice issues.

July 9, 2018 at 09:21 PM | Permalink


Maybe, you can also address, this whack job conspiracy theorist who investigated the suicide of Vincent Foster. Keeping up with his series of frivolous prosecutions, he harassed President Clinton. This impeachment consumed hundreds of hours of President time, better spent Al Qaeda. This fool was a significant factor in 9/11, that killed 3000 people and cost our economy $7 trillion in losses. Trump was played by the criminal cult enterprise, and betrayed his base.

Posted by: David Behar | Jul 9, 2018 9:49:07 PM

Thanks DIug it's nice to know that I count among the "dumb money".

Posted by: Daniel | Jul 12, 2018 2:39:23 PM

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