Rebecca Ingber Testifies in Supreme Court Confirmation Hearing
The BU Law associate professor shared insights about how Justice Brett Kavanaugh’s judicial record could inform his rulings on executive power.
Boston University School of Law Associate Professor Rebecca Ingber, an expert in international and foreign affairs law and presidential power, testified before the Senate Judiciary Committee during the confirmation hearings of US Supreme Court Associate Justice Brett Kavanaugh.
President Trump nominated Judge Brett Kavanaugh, formerly of the US Court of Appeals for the District of Columbia, to fill the seat vacated by Associate Justice Antony Kennedy’s retirement. The Senate Judicial Committee called on Ingber to join a panel of professors, judges, and practitioners who spoke to Judge Kavanaugh’s temperament and judicial philosophy. Collectively, these experts shared their judgments on his potential impact on the court.
Ingber’s scholarship focuses on matters of national security, war powers, the laws of war, and the engagement of the US executive branch bureaucracy in these areas. Her work has been published in the Texas Law Review, the American Journal of International Law, the Harvard International Law Journal, and the Yale Journal of International Law, among others.
Before joining the faculty at BU, Ingber served for six years in the Office of the Legal Adviser at the US Department of State, where she worked on a range of matters involving the law of armed conflict, detention policy, and national security, as well as diplomatic property and government contracts, and on litigation before both US courts, and international courts, including the US Supreme Court and the International Court of Justice.
In her September 7 testimony, she examined Judge Kavanaugh’s jurisprudence in matters related to executive power and national security. “My scholarship explores the way the executive branch makes decisions,” Ingber says. “I have given a great deal of thought to the approach courts should take in this area and the effects of what I consider to be undue deference to the executive branch on matters of national security.”
Ingber specifically called the Committee’s attention to Judge Kavanaugh’s departure from precedent on the role of international law in informing the president’s wartime authorities. Her testimony referenced Kavanaugh’s opinion on the president’s power to detain at the Guantanamo Bay military facility.
“Judge Kavanaugh wrote an 87-page separate opinion to argue that the court should not look to international law to inform the president’s war powers—a position that is contrary to over two centuries of settled precedent,” she says.
These war powers could be abused without strong judicial oversight, she explained.
“If the Supreme Court were to adapt Judge Kavanaugh’s position on this or in other areas where he has invoked national security to dismiss the court’s role in checking the president, the result would be that the president could wield nearly unreviewable discretion when he invokes war or national security,” she says.
With Kavanaugh nominated to fill the seat of centrist-conservative Justice Antony Kennedy, Ingber emphasized the difference in their judicial philosophies. While Kavanaugh has typically dismissed the role of international law, Kennedy authored and joined opinions looking to international law to inform executive power.
“Justice Kennedy repeatedly showed a willingness to push back against what he perceived as executive overreach in the national security sphere,” she shared. “It is not clear that Kavanaugh would have joined these opinions with Kennedy had he been on the bench at the time.”
Other experts called to testify included John Dean, former counsel to President Nixon, Lisa Heinzerling of Georgetown Law Center, and Peter Shane of Ohio State University’s Moritz College of Law.
Read Ingber’s full written testimony and watch her statement before the Senate Judiciary Committee below.
Reported by Josee Matela (COM’20)
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