Brett Kavanaugh Florida ties: Elian, 2000 vote recount, Terri Schiavo


President Trump’s nominee for the Supreme Court, Brett Kavanaugh, has linkS to three major — and polarizing — political episodes in Florida, the Elian Gonzalez saga, the 2000 Florida election recount and the Terri Schiavo case.

More than peculiar coincidence, Mark Kende, director of the Drake Constitutional Law Center in Des Moines, Ia., said Kavanaugh’s connection to the trio of dramas raises a “bigger question” about political influence, impartiality and loyalty to the law.

“There is no doubt Kavanaugh is a talented lawyer and a brilliant legal mind,” Kende said. “Still, the bigger question is to what extent politics will influence him.”

Particularly since the core issues in the three Florida cases — reuniting immigrant children with parents, the integrity of voting systems and the right-to-die — remain flashpoints in American politics today.

In 2000, Kavanaugh formed part of six-year-old Elian Gonzalez's legal team.

Gonzalez was rescued from the open ocean after a boat carrying his mother and other Cubans seeking refuge in America sank. The lone survivor, the boy was brought to South Florida and placed in the care of extended family members in Miami.

Backed by the Fidel Castro regime, the child’s father in Cuba demanded his return. The Clinton administration, including another Florida connection, Attorney General Janet Reno, agreed and an intense legal battle ensued in American courts.

Kavanaugh was among a series of lawyers who unsuccessfully sought to stop efforts to repatriate Gonzalez to Cuba, and the boy was sent home in the summer of 2000.

Kende noted that Kavanaugh, in taking on the Elian Gonzalez custody fight, must have known there was widespread legal consensus that the rights of Gonzalez’s father in Cuba would predominate. Kende said the decision to litigate seemed more driven by politics than law, and therein lies the doubt about Kavanaugh.

“The legal community was in agreement that in the end the father would prevail,” said Kende. “The [Gonzalez case] was about politics. And when you get attorneys like Kavanaugh that were political animals, the question is always how will they perform as a judge.”

Trump nominates appeals court judge Kavanaugh for Supreme Court

However, Kende said Kavanaugh’s record on the District of Columbia appeals court shows he has been a judge who is extremely knowledgeable about the law. Kende noted Kavanaugh has authored some 300 opinions that “were very well done” regardless of whether one agreed with them or not.

The Schiavo case presents a different pitfall for Kavanaugh.

The Tampa Bay area woman was declared brain dead by doctors after collapsing in her home in early 1990. Her husband, Michael, argued for allowing her to die. Her parents fought to keep her alive.

The issue eventually captured the nation’s attention and it became a political football in Washington where, in March 2005, Congress met in the middle of the night to pass legislation to keep Schiavo alive.

President George W. Bush was asleep when he was, as reported by the New York Times, awakened by Kavanaugh, then the president’s staff secretary, and handed the bill for Bush to sign into law. Ultimately, the courts ruled in favor of Michael Schiavo and Terri Schiavo passed away on March 31, 2005.

It’s not clear what role, if any, Kavanaugh played in the efforts to pass the controversial legislation that many Americans saw as an intrusion. To seek that answer, the Senate Judiciary Committee would have to request and review incalculable numbers of Bush administration documents — potentially bringing the pace of the confirmation process to a crawl.

The one issue that opposition Democrats did latch onto in the immediate aftermath of Monday night's announcement was a 2009 opinion by Kavanaugh doubting that a sitting president could be indicted.

» Brett Kavanaugh no stranger to DC legal, political circles

Add Kavanaugh’s role in the Florida cases to his 12-year record on the appeals court and everyone “will have a lot to talk about,” said pollster Kevin Wagner. And, he added, the potential some senators will find a politically palatable reason to vote against him.

“He has a long track record,” said Wagner, chair of the political science department at Florida Atlantic University. “A Democrat in a red state may be able to find something as a justification to vote against him without suffering too much political damage.”

James Todd, assistant professor of politics at Palm Beach Atlantic University, said it's not clear which issues Kavanaugh's opponents will highlight.

Todd pointed out that Democrats opposing last year’s nomination of Neil Gorsuch to the Supreme Court failed to follow up on a Schiavo-like opportunity. Gorsuch, Trump’s first appointee to the Supreme Court, authored a book in which he opposed euthanasia and death with dignity laws. However, Todd noted Democrats passed up the opportunity to raise an objection.

This time, with the court’s balance in play, may be different.

“This issue, the right-to-die, is increasingly on the public consciousness. I was finishing up law school at the time and that was something we talked about even back then,” said Todd. “That case as policy may well come up. It may well be at least something that will be asked about on judiciary committee.”

» A more conservative Supreme Court could step, not lurch, to the right

Kavanaugh's deep roots in Republican Party establishment politics also make him somewhat of a target.

Kende points out many times lawyers seeking to join the federal bench must pay their dues by taking on highly political cases.

There's not been a more highly political, or high stakes, legal case than Bush v. Gore.

Kavanaugh's Forrest Gump-like encounters included representing Texas Gov. George W. Bush in the court case that ended the Florida recount in the 2000 presidential election.

In December, the U.S. high court ruled in favor of Bush by a 5-to-4 vote. That ended the recount and effectively put Florida in Bush’s column by 537 popular votes.

The Sunshine State’s 25 electoral votes allowed Republican Bush to top the 270 requited total to claim the presidency, although he had fewer total popular votes than Democrat Al Gore — a historical turnabout Democrats here and nationally have never forgotten.

Bush v. Gore catapulted Kavanaugh’s career. He joined the Bush White House and in 2006 received the nomination to the District of Columbia appellate court.

But Kende said Kavanaugh's opinions won't give opponents seeking payback for Bush v. Gore much fodder because they have been legally sound and not ideological.

For example, Kende cites Kavanaugh’s ruling in a case involving the Obamacare mandate, which backed the Affordable Care Act. He said that opinion shows Kavanaugh to be an “institutional conservative” like Chief Justice John Roberts than an “ideological conservative” like Justices Clarence Thomas and Samuel Alito.

"He's not been a political animal [on the bench]," said Kende. "His opinions, whether you like them or not, are really well done."



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