The comments from Kavanaugh, who at the time was working as a private lawyer, to CNN’s Wolf Blitzer in December 2000 are notable given speculation by both Democrats and Republicans that the high court might again have to settle election disputes following next week’s presidential contest.
“And I think what we’re seeing is more of a divide over how to interpret the Constitution than really political differences. I don’t think the justices care that it’s Bush v. Gore or if it were Gore v. Bush,” he said in the interview, which came after the justices had heard oral arguments but before they ruled. “What they care about is how to interpret the Constitution — what are the enduring values that are going to stand a generation from now?”
Speculating about the reaction of Justice Anthony Kennedy and other members, Kavanaugh said he thought they were concerned about “whether the Florida Supreme Court had so departed from the election code previously established by the legislature that it had violated the United States Constitution, which after all delegates the power to the legislatures of the states.”
The Supreme Court would eventually halt the Florida recounts, declaring that county standards for assessing the intentions of voters on disputed ballots varied too widely to be fair. The court said the variations violated the 14th Amendment’s equal protection guarantee.
He went on to mention the 2000 case, picking up on the reasoning of then-Chief Justice William Rehnquist in a concurrence that only garnered the votes of two other justices — Scalia and Justice Clarence Thomas.
“The text of Article II means that the ‘clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature,” Kavanaugh wrote.
CNN’s Ariane de Vogue and Joan Biskupic contributed to this report.