Kavanaugh for the Court
Trump’s second nominee will be an intellectual leader on the bench.
Judge Brett Kavanaugh speaks after being nominated by President Donald Trump to the Supreme Court
in the East Room of the White House on July 9, 2018 in Washington. Photo: Saul Loeb/Agence France-Presse/Getty Images
By The Editorial Board - WSJ July 9, 2018 10:56 p.m. ET
President Trump kept everyone guessing to the end about his Supreme Court selection Monday, but in nominating Brett Kavanaugh he also kept his promise to select a Justice “who will faithfully interpret the Constitution as written.” Judge Kavanaugh has an exemplary record that suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society.
Mr. Trump stressed the 53-year-old Judge Kavanaugh’s legal credentials Monday evening, and well he should. In 12 years on the D.C. Circuit Court of Appeals, he has written more than 300 opinions that span nearly every significant constitutional issue including the separation of powers and federalism. The Supreme Court has adopted the logic of 11 of his opinions in whole or part. He has the experience and intellect to be a leader on the Court, not merely a predictable vote on this or that issue.
In particular, Judge Kavanaugh is among a younger generation of judges who base their rulings on the text of the Constitution and Congressional statute. This method comes through clearly in many opinions, including a case (Heller v. D.C.) in which he rejected a balancing test for gun laws and said the Second Amendment requires an originalist historical inquiry.
Judge Kavanaugh has also been a leader on the appellate courts in challenging the Chevron doctrine of judicial deference to regulators. In U.S. Telecom Assn. v. FCC (2017) he concluded that the Obama Administration’s net neutrality rules flouted telecom law. He’s also held that regulators must consider the costs of their decisions (White Stallion Energyv. EPA).
His sterling dissents in Free Enterprise Fund v. PCAOB (2008) and PHH Corp. v. CFPB (2018) held that limits on the President’s ability to remove executive officers except “for cause” are unconstitutional. The Supreme Court adopted his dissent in Free Enterprise Fund.
Judge Kavanaugh has also demonstrated judicial modesty on foreign policy by upholding the executive’s collection of metadata and use of military commissions to prosecute enemy combatants. Democrats should note that Judge Kavanaugh has consistently demonstrated deference to the President’s core powers regardless of the White House occupant.
Judge Kavanaugh’s First Amendment jurisprudence also reflects a deep respect for the free exercise of religion and speech. In Priests for Life v. HHS, he concluded the Obama Administration’s rule requiring religious organizations to file forms facilitating contraception by third parties substantially burdened their exercise of religion since they had to act contrary to their sincere beliefs. He also extended speech rights to nonprofits’ political expenditures (Emily’s List v. FEC), which teed up the Supreme Court’s landmark SpeechNow and Citizens United rulings.
Given that this is the polarized America of 2018, Judge Kavanaugh’s confirmation will inevitably be a political brawl. Democrats can’t defeat his nomination alone, so they will deploy every tactic to frighten two or more Republicans to oppose him.
This will include demanding millions of documents from Mr. Kavanaugh’s tenure on the staff of special counsel Ken Starr in the 1990s. But Judiciary Chairman Chuck Grassley should resist this gambit as irrelevant to Judge Kavanaugh’s duties on the Court. We trust Republicans understand that if they don’t hold together to confirm Judge Kavanaugh, they will deserve to lose their majority in November. If they do stay united, they may persuade a couple of Democrats to vote to confirm him as well.
Democrats will also claim that a new conservative 5-4 majority will mean the rollback of American rights from abortion to voting. Don’t believe it.
The change we expect would be a Court that returned to the role it played before the 1960s when the Justices became an engine of progressive policy. The American left is distraught because it fears losing the Court as its preferred legislature. A conservative Court won’t overturn liberal precedents willy-nilly. But we hope it will be inclined to let most political questions be settled where they should be in a democracy—by the political branches.
This still preserves for the Court a large role in protecting fundamental rights and the structure of the separation of powers that is a bulwark against tyranny. The Court has become far too embroiled in politics, which has undermined public faith in the law and Constitution.
We firmly believe that liberals have much less to fear from a conservative majority than they imagine. A genuinely conservative Court might even help progressives by liberating them to focus once again on the core task of self-government—persuading their fellow Americans through elections, not judicial fiat.
Appeared in the July 10, 2018, print edition.
A Champion of Constitutional Safeguards
Brett Kavanaugh has a fine record as a judge. Senate Democrats will give him their worst anyway.
By David B. Rivkin Jr. and Andrew M. Grossman
Days before President Trump announced his choice of Judge Brett Kavanaugh for the Supreme Court, Senate Democrats had vowed to oppose any nominee. Backed by an activist-fueled propaganda machine, they now will unleash relentless personal attacks—on Judge Kavanaugh’s Catholic faith, his “elitist” Yale degrees, his service in the George W. Bush administration.
As with the attacks last year on Justice Neil Gorsuch, they should be unavailing. Over Judge Kavanaugh’s 12 years on the U.S. Circuit Court of Appeals for the District of Columbia, he has developed an impressive record as a legal thinker and a champion of the Constitution’s structural safeguards against overweening government.
Typical is a 2008 dissent in which Judge Kavanaugh concluded that the Public Company Accounting Oversight Board was unconstitutionally structured because it improperly insulated the agency from political accountability. The opinion was a tour de force of historical exposition and originalist methodology—that is, interpreting the Constitution’s text as it was originally understood. The Supreme Court ultimately agreed, adopting the reasoning of Judge Kavanaugh’s dissent.
Yet he is equally wary of unbridled executive authority, as a 2013 case shows. When the Nuclear Regulatory Commission declined to proceed with licensing the proposed waste repository at Yucca Mountain, Nev., which the agency appeared to oppose on policy grounds, he wrote: “The President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”
In articles and speeches as well as formal opinions, Judge Kavanaugh has been a leading critic of Chevron deference, the courts’ practice of giving agencies free rein to interpret their own statutory authority. In a 2016 law-review article, he wrote that Chevron encourages the executive branch “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints,” cutting Congress out of the picture. “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is.”
On that score, Judge Kavanaugh rivals the late Justice Antonin Scalia in his ability to make sense of Congress’s often knotty statutory constructions. Judge Kavanaugh considers textualism to be an important restraint on judges that prevents them from imposing their policy preferences. As he put it in that 2016 article: “When courts apply doctrines that allow them to rewrite the laws (in effect), they are encroaching on the legislature’s Article I power.”
That’s why the Democrats’ formulaic charges of partisanship won’t stick. In case after case, Judge Kavanaugh sided with the Obama administration in the war on terror. He turned away a constitutional challenge to ObamaCare on jurisdictional grounds, while writing that the government’s defenses of the law were “unprecedented” and without “principled limit.”
Across three successive administrations, Judge Kavanaugh has frequently ruled against the government. According to Jennifer Mascott of Scalia Law School, he “has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.” That’s a muscular record on a court often criticized for deference to government.
Democrats may make an issue of a 1998 academic article in which Judge Kavanaugh—who early in his career worked in the Office of Independent Counsel during the Clinton administration—questioned whether the Constitution permits criminal prosecution of a sitting president. He didn’t actually reach a conclusion on the question, but the Justice Department’s Office of Legal Counsel did, holding that a sitting president cannot be indicted. Since that opinion is binding on special counsel Robert Mueller, there’s no prospect the issue will reach the Supreme Court.
Democrats will also roll out culture-war issues like abortion and same-sex marriage. There is nothing in Judge Kavanaugh’s judicial or scholarly record to indicate how he would vote on any of those issues. Only one sitting justice, Clarence Thomas, has said he favors overturning Roe v. Wade, so the status quo on abortion seems likely to prevail for some time. As for same-sex marriage, there appears to be little appetite on the court to revisit it, and even less reason to believe that a case doing so is likely to arise, given its rapid public acceptance.
At any rate, it would be improper for Judge Kavanaugh to answer senators’ questions about how he would vote on any particular issue. Since Justice Ruth Bader Ginsburg’s appointment in 1993, her “Ginsburg Rule”—“no hints, no forecasts, no previews”—has stood. Judges do not decide abstract issues but concrete cases with specific facts, arguments, and governing law. Judges have a duty to decide cases as they arise, without prejudgment. Like Justice Ginsburg, Judge Kavanaugh can and should be questioned on his record. And a fine record it is.
Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute.