On Monday, President Trump nominated Judge Brett Kavanaugh from the D.C. Circuit Court of Appeals to fill Justice Anthony Kennedy’s soon to be vacant seat on the U.S. Supreme Court. Like Judge Merrick Garland, former President Obama’s last nominee, and unlike now-Justice Neil Gorsuch, President Trump’s first nominee, Judge Kavanaugh rarely encounters bankruptcy issues. That’s the D.C. Circuit for you.
Whereas former contender Judge Thomas Hardiman has written 14 bankruptcy opinions and former contender Judge Raymond Kethledge has written 12 bankruptcy opinions (including the Ice House opinion, one of the few Circuit-level absolute priority rule opinions), Judge Kavanaugh has a single bankruptcy opinion among his 311 opinions: Smith v. First Am. Title Ins. Co. (In re Stevenson), a quaint D.C. state law equitable subrogation case that is narrowly interesting even if it’s not very revealing about Judge Kavenaugh’s judicial philosophy. In fairness, former contender Judge Amy Barrett, with only 10 opinions to her name, has 0 bankruptcy opinions.
So, once again, we’re first on the bankruptcy scene but with little to add to the noise that is this week’s Kavanaugh coverage. However, we did locate one heartening tidbit. Specifically, much has been discussed about Judge Kavanaugh’s dissent in Sissel v. U.S. Dep’t of Health & Human Servs, an Affordable Care Act case. It’s only fitting, then, that Judge Kavanaugh concluded his 31 page dissent with an amusing quote from and footnote cite to Wellness:
“To read my opinion so far, you might wonder whether I think the world will end not in fire, or in ice, or in a bankruptcy court, but in an Origination Clause violation. I of course realize there are more important constitutional issues. This case is not Marbury v. Madison redux. But the case is still quite important.”
It’s not as much fun as Justice Gorsuch’s “30 Year Old Pontiac Trans Am” case, but we’ll take it for now.