In retirement, President Eisenhower commented one of the biggest mistakes of his presidency was the appointment of Earl Warren to the Supreme Court.  Ultimately, Warren led a liberal majority to expand civil rights, civil liberties and judicial power to the consternation of conservatives such as Eisenhower.

The fierce battle now being waged on Capitol Hill over President Trump’s recent appointment of D.C. Circuit Judge Brett Kavanaugh is driven by a concern that Kavanaugh’s confirmation will guarantee a conservative majority for years to come and threaten many of the liberties won during the Warren Court and later years.

I happen to believe that life time tenure, subject only to impeachment, has a profound influence on a jurist’s thinking, regardless of past history.  For example, perhaps to burnish his legacy as Chief Judge, Justice Roberts, to the surprise of many conservatives, has sided with the liberal wing in any number of key contests. But to assess Kavanaugh’s habit of mind, I decided to look for a Kavanaugh decision in a garden variety case, not involving life, liberty or the pursuit of happiness.  And, of course, I chose insurance.

While the D.C. Circuit where Kavanaugh now sits sees few insurance cases, I found Essex Insurance Company v. John Doe, a declaratory judgment action in which Essex sought a judicial declaration to enforce a policy sublimit for molestation “claims.”

It’s a sad case.  A youngster, deemed Doe, to protect his identity in the litigation, was sexually assaulted on four occasions by four different residents of the care facility in which he resided.  Essex afforded the facility CGL coverage with a sublimit for sexual abuse claims.  The wording provided that such coverage is subject to an “aggregate limit of $300,000 per year” and on “each claim” a limit of $100,000.

Noting that the insurance contract did not define a “claim,” Judge Kavanaugh had to decide whether each occurrence (where admittedly 4 occurrences took place) constituted a separate claim to reach the aggregate limit.  Essex contended that Doe submitted but one claim for damages, and thus the sublimit ought to apply–and the District Court agreed with Essex.

In reversing the District Court, and in ruling for Doe, Kavanaugh parsed the wording of the insurance contract finding, when read as a whole, the undefined term of “claim” was logically “tethered” to “occurrence” which was a defined term.  As such, that the victim was the same in each instance, Kavanaugh found, was wholly irrelevant under the contract as written.

But of equal importance to bottoming his decision on strict interpretation of policy wording, Kavanaugh spent some time explaining that Essex, if they so choose, could have written the insurance contract to establish an “injured party” sublimit, and thus accomplish its goal of further limiting molestation coverage.

What does this insurance decision tell us about Kavanaugh’s habit of mind?  He construes wordings narrowly and demands precision in contract wording.

The ruling also signals Kavanaugh takes oral argument seriously, using a concession by Essex’s counsel during oral argument against the company’s position: “[W[hen pressed at oral argument, Essex could not identify a single insurance case in which a court interpreted the word “claim” to cover multiple torts by several individuals over a period of time.”

Politics is a full contact sport. But this upcoming battle, to be sure, will require helmets and Kevlar vests as shields against the arguments that will be shot like mortars across both sides of the aisle.  Stay tuned.

And that’s it for this This and That.