“I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Judge Kavanaugh wrote in 2009 in The Minnesota Law Review. Among those burdens, he said, were responding to civil lawsuits and criminal charges.
“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” Judge Kavanaugh wrote. “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”
Judge Kavanaugh said the proceedings could resume after a president left office and that impeachment remained an option. Those comments, after an investigation of Mr. Clinton in which a young Mr. Kavanaugh had participated, would seem to be a mark of reflection and independence. But Democrats may worry that a Justice Kavanaugh would be inclined to vote to limit the investigation of Robert S. Mueller III, the special counsel looking into connections between the Trump campaign and Russia.
Judge Barrett’s academic writings have also attracted attention.
In 1998, writing with John H. Garvey, now the president of Catholic University of America, she suggested that Catholic judges should recuse themselves in some death penalty cases that might conflict with their religious beliefs.
In a 2013 law review article, she examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.
“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”
During her confirmation hearings, Judge Barrett repeatedly insisted that a judge should not impose her personal convictions on the law. She also said several times that as an appeals court judge, she would follow Supreme Court precedent on abortion. But she declined to answer whether she was personally opposed to abortion.