Yes: Kavanaugh is truly a “judge's judge” and precisely what our nation needs
What can we expect of Brett Kavanaugh if he’s confirmed as Justice Anthony Kennedy’s successor on the Supreme Court?
Kavanaugh’s record and background show he will be a fair, impartial and principled justice — and that’s precisely what our nation needs.
A graduate of Yale College and Yale Law School and former law clerk to Justice Kennedy, Kavanaugh has served for the last 12 years on the U.S. Court of Appeals for the D.C. Circuit.
On this court, Kavanaugh has tackled weighty issues from the First Amendment’s ban on the establishment of a particular religion by Congress and the Second Amendment’s guarantee of a right to bear arms to the constitutionality of administrative agencies such as the Public Company Accounting Oversight Board and the Consumer Financial Protection Bureau.
A “judge's judge,” as President Donald Trump called him, Kavanaugh’s record shows a commitment to interpreting laws according to their text. He’s written that “the text of the law is the law” and explained that judges may not “rewrite statutory text simply because we might think it should be updated.”
Kavanaugh is regarded as “one of the finest and sharpest legal minds of our time,” Trump said.
Indeed, in addition to writing more than 300 opinions on the appeals court, he speaks and writes often about the separation of powers, agency deference and statutory interpretation. He also co-authored a book on the topic of precedent along with Bryan Garner and 11 other judges, including then-Judge Neil Gorsuch.
As a judge on a court dominated by Democratic appointees, Kavanaugh is often in the minority, issuing powerful dissents that the Supreme Court has cited in several cases.
For example, a 2014 case looked at whether the Environmental Protection Agency could ignore cost-benefit analysis when considering a proposed hazardous air pollutants rule that would cost power plants an estimated $9.6 billion a year for a societal benefit amounting to no more than $6 million a year.
The D.C. Circuit deferred to the agency’s interpretation of the law. But Kavanaugh wrote a separate opinion noting it was “entirely unreasonable for EPA to exclude consideration of costs,” under the relevant statute. Two years later, the Supreme Court agreed with Kavanaugh’s criticisms and reversed the decision.
In a 2008 case, the D.C. Circuit dealt with the structure of the Public Company Accounting Oversight Board. Congress had created it by statute and then insulated its board members from presidential control by having them appointed and removable only for cause by members of the Securities and Exchange Commission.
Kavanaugh dissented from his court’s ruling that this arrangement was constitutional. He wrote that the dual protection clause would “eliminate any meaningful Presidential control” and noted that the president’s removal power is “critical” for him to “perform his Article II responsibilities.” The Supreme Court agreed with Kavanaugh.
In a 2017 speech at Notre Dame Law School, Kavanaugh declared the “structural provisions of the Constitution,” including the separation of powers, “are not mere matters of etiquette or architecture.” They are “essential to protecting individual liberty.” Courts, he said, have a “critical role...in enforcing those separation of powers and federalism limits.”
Kavanaugh is a judge who understands that he has an important but limited role in our system of government. That’s why he strives to interpret the law and constitutional provisions by their text and original public meaning, and above all strives to be a faithful servant to the Constitution.
That’s exactly what our country needs on the Supreme Court.
Elizabeth Slattery is a legal fellow at The Heritage Foundation and host of SCOTUS 101, a podcast about the Supreme Court. She is a graduate of George Mason University’s Scalia School of Law and holds a bachelor’s degree in history from Xavier University in Cincinnati. Readers may write her at Heritage, 214 Massachusetts Ave. NE, Washington, D.C. 20002-4999.
No: His pick is bad news indeed for health care, women, consumers and unions
Brett Kavanaugh, President Donald Trump’s nominee for the United States Supreme Court, is a bad choice for most Americans.
His political, legal and judicial career is littered with activist ideological opinions out of step with the American majority and established law. His views on executive power related to legal issues alone are enough to reject his nomination.
As the vetting process begins in Washington, this nomination should get a careful and detailed review.
Supreme Court justices, when confirmed, serve life terms. A wise choice can be an amazing power for the incremental progress that has been the norm throughout our nation’s history. However, a poor choice will impede that tradition of progress and take the nation backward.
Unfortunately, Brett Kavanaugh’s record suggests he fits into the latter category. In public statements and in judicial opinions, he has repeatedly expressed opinions that are counter to both established law and popular common sense policy positions.
If Kavanaugh is confirmed, the Supreme Court could take health care back to a time when insurance companies denied coverage for pre-existing conditions and coverage costs soared even as care declined; back to a time when corporations had free reign over workers and consumers damaging their lives and livelihoods — and back to a time when our essential resources such as water and air were freely open to polluters to do as they wished.
Other Kavanaugh opinions and rulings that should be of concern to any American interested in a just and fair society include writing an opinion upholding a voting law in South Carolina that would deny voting rights to tens of thousands of voters and his curious belief that assault weapons bans are unconstitutional.
Perhaps the most disturbing opinions Judge Kavanaugh has expressed relate to executive powers of the president which, essentially leave the president above the law.
These opinions include a view that a sitting president should never be able to be criminally indicted; that the president “should have absolute discretion (about) whether and when” he or she can be independently investigated, including deciding who the investigators are; and that any special prosecutor should be removable at will by the president.
This is an unacceptable set of positions for any judge being appointed by a president whose campaign, campaign associates, administration officials and perhaps even himself are under current investigation for their roles in Russian meddling in our elections and potential obstruction of justice by the president.
Should any person under investigation get to choose who investigates potential wrongdoing, hire and fire investigators at will, and then appoint a judge that might be ruling on any relevant case? Certainly not!
In fact, no president who is subject of a counterintelligence investigation should receive so much as a hearing for any nomination to the Supreme Court.
Our democratic and judicial systems demand that no action be taken until the investigation has taken its full independent course.
Only when that investigation is complete should the United States Senate move forward. Then and only then, the Senate should consider the president’s nominee.
This means a full vetting of any nominee’s statements, judicial opinions and political career to ensure that we do not make a mistake that will haunt our justice system and way of life for decades to come.
There is simply too much at stake to rush a careful process, too much at stake on critical issues like health care and corporate power and too much at stake to play political games or allow anyone to be above the law.
If this common sense process plays out, the American people and their representatives in the United States Senate will soon conclude that Brett Kavanaugh is the wrong choice for the court and for our country.
Don Kusler is national director of Americans for Democratic Action (ADA), the nation’s most experienced progressive advocacy organization. Readers may write him at ADA, 1629 K Street NW, Suite 300, Washington, DC 20006.