Kavanaugh’s Exercise of Discretion

A lawyer who recently argued a case before Trump’s Supreme Court nominee relates what he learned.

Judge Brett Cavanaugh
Jim Bourg / Reuters

Perhaps the best way to tell something about judges is by looking at what they do when they have discretion to act. Their exercise of judgment involves two distinct decisions—when and in what circumstances they have discretion to exercise in the first place, and what they do with that discretion once they think they have it. It’s a reasonably fair generalization to say that liberal judges see more discretion in the law and use it more to ameliorate perceived injustices, while conservatives prefer to avoid the prospect of discretion wherever they can, thinking that it gives unelected judges too much power over citizens.

Thousands of words, if not hundreds of thousands, have already been written about President Donald Trump’s Supreme Court nominee, Brett Kavanaugh. Scholars will opine on his judicial philosophy and review his judicial opinions—more than 300 of them—for hints about how he might rule. His classmates, law professors, and colleagues will all be asked their thoughts and his law-review articles will be scrutinized.

But the one way to truly know a judge is to watch him in action. I first met Judge Kavanaugh more than 20 years ago, when we both worked for Independent Counsel Ken Starr, but a more recent experience is more germane. I was appointed by the United States Court of Appeals for the District of Columbia Circuit to represent a client who had lost his case while representing himself in federal district court, and then tried to file an appeal.

The main issue was at once abstract and vital: How does a losing party start an appeal? Normally, the answer is pretty simple: The losing party files a single page known as a “notice of appeal.”

But that’s not the case for everyone. As in my client’s case, a convicted criminal seeking a second (or third) review of a case requires permission to appeal from the district court. This permission is called a “certificate of appealability” and it is, in essence, a certification from the district judge to the appeals court that the case isn’t frivolous. Of course, having just lost, the issuance of permission doesn’t mean the appellant will win. Rather, it certifies that the issue in the case is one about which reasonable minds can disagree and thus that the appeals court should hear the case.

My client duly requested his certificate of appealability and it was issued to him. But the district court’s letter of notification never made it into his hands. This is actually a fairly common occurrence with the Bureau of Prisons, particularly when an inmate is moving from one prison to the next. Unfortunately, while he waited patiently for an answer to his request, time ran out for him to file the required notice of appeal.

And so, the question before the appeals court was fairly simple: Could they treat my client’s request for a certificate of appeal as if it were an actual notice of appeal, and then hear the merits of his case despite the fact that, as a procedural matter, his time had run out?

And that’s where the discretion came in. For a long time, courts have said that the notice of appeal is a merely a formality, which is to say it’s necessary only to inform the other side that an appeal is forthcoming and, in some cases, what the topic of the appeal will be.

One can be a formalist and say that only a notice of appeal can start an appeal. Or one can be pragmatic and invoke discretion to say that any filing that fulfills the function of a notice is sufficient, even if it isn’t exactly a notice of appeal.

And that is precisely what this case was about. Having filed for a certificate of appeal, my client had made clear that he wanted the case elevated to a higher court. And the district court had granted the certificate, saying that one issue in his case in particular (whether or not his trial lawyer had been ineffective) was worthy of review. We argued that that was enough to give the U.S. government sufficient notice of the grounds for appeal. The government argued, perhaps unsurprisingly, that in the absence of a formal notice of appeal being filed, no appeal was possible.

Kavanaugh happened to be on the panel that heard the case. The essence of what he said to the government’s lawyer from the bench sticks with me, even if the specific wording does not: Give me a hard-and-fast rule and I’ll apply it, but here I have discretion. Why shouldn’t we let him have the appeal and turn to the merits?

And that’s what happened. Exercising their discretion, the judges on the panel decided that enough had been done to make my client’s appeal effective, and they agreed to hear the merits of the case. He lost on the merits (which I’m sure he still feels aggrieved about) but at least he had the satisfaction of having his day in court.

The Kavanaugh I know is likely to be reluctant to find discretion in the law. He will see hard-and-fast rules that bind him. But where he does see discretion? At least in this one instance, he was generous and open to the appeal of the little guy. And that, in the end, isn’t a bad way to be.