Brett Kavanaugh

Kavanaugh Nomination

Another first-rate -- and conservative -- pick.

|The Volokh Conspiracy |

I'm slammed with other projects this week, but I just wanted to briefly praise Brett Kavanaugh, whom I know from clerking, and whose work I've followed since he has been on the D.C. Circuit. He's extremely smart and thoughtful, an excellent writer, and, if confirmed, is likely to be an intellectual leader on the Court. He's also without doubt quite conservative, though, as usual, it's hard to predict exactly how he would decide the many matters on which he hasn't extensively written. This is pretty much what people (including me) said about Neil Gorsuch, and I think it's equally true of both them.

Whatever one might say about some of President Trump's other decisions, most of his appellate judicial nominations have generally been first-rate under all the traditional measures of quality; there have been a few exceptions, but very few. (Naturally, many people will find much to disagree with in the various nominees' ideology, and many others will find much to agree with, but that's a separate matter.) That is indubitably so as to Kavanaugh.

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  1. Thank heavens Yale Law has closed its dangerous gap with Harvard Law

    1. Which university has more mine shafts?

      1. It’s the platform gap.

      2. Yale *could* use an international airport

  2. “without doubt quite conservative”

    We will see. More likely a Roberts clone.

    1. Brett Kavanaugh has been a dutiful Republican streetfighter throughout his life, from the Clinton investigation, through the Bush-Gore battles and the Bush White House, to the federal bench position that was a reward for the streetfighting. He resolves nearly every question in the direction Republicans — more accurate, Federalist Society Republicans — prefer. He seems an unlikely fit with Pres. Trump and some Trump followers, but he flattered Pres. Trump obsequiously during the announcement and, one could predict, during any interview(s) and other contexts related to his candidacy. A movement conservative Republican would welcome this nomination. It is difficult to envision that libertarians, liberals, moderates, and perhaps even RINOs would find much to applaud with respect to this nomination.

      1. So, a first rate conservative pick. Emphasis on the “conservative.”

        This helps the few Never Trump conservative types who couldn’t actually support Clinton though there were really only two choices so push comes to shove, not supporting one meant supporting the other on a basic level. But, EV is a conservative, so that isn’t really surprising.

        1. “EV is a conservative”

          Joe_JP – I can’t recall Professor Volokh saying that he is a conservative. However, your thinking that he is a conservative places you far on the left end of the political spectrum.

          But even if the Professor were to self-identify as a conservative, he isn’t.

          Perhaps your confusion lies in part from relying too much on the opinions of the leftwing bloviators who think everyone to the right of them is a conservative.

          1. “However, your thinking that he is a conservative places you far on the left end of the political spectrum.”

            I don’t think this is shown. For instance, a person who endorsed Ted Cruz (as he has) might not be conservative, but a person who endorses him can reasonably be assumed to be a conservative. Also, usual dismissals aside, see that his Wikipedia page cites him as regularly labeled as such (with citations). But, those who cite “leftwing bloviators” might want to look in the mirror on the subject of flawed perspectives.

            I am not sure why it is a problem to suggest EV is a conservative. Is something wrong with being a conservative? Also, they come in various shapes and sizes, and can have libertarian views.

    2. Roberts is extremely conservative.

      I’m really sick of right wingers who think that if a Justice makes one ruling they don’t like, they suddenly aren’t “conservative”. Liberals don’t do this. We don’t call Breyer and Kagan “not liberal” because they voted for the baker in Masterpiece Cakeshop.

      You don’t get to win every case. Neither do we.

      1. But what you SHOULD do is to stop calling Breyer, Kagan, Ginsburg, or Sotomayor “liberal” because that is a terribly dishonest use of the term “liberal” which turns its meaning on its head. In the interest of honesty, call them what they are – authoritarian statists.

        1. You don’t get to define words, DjDiver.

          “Liberal” has a meaning within the American political system. Language gets its meaning by common consent, and it changes over the time. This is why you say “you” now, when 500 years ago you might have said “thou” instead.

          And it works both ways. I don’t get to say that conservatives “aren’t really conservative” either.

          1. I see that Dilan Esper subscribes to the Humpty Dumpty School of linguistics. So, Dilan, if enough people agree that war is peace, that black is white, that lies are truth, then you’ll buy it.

            1. If enough people agree (or are told by liberal humanities professor) that two men in an anal sex based relationship are “married,” they’ll buy it.

      2. the fad for some years is to shift left so conservatives obviously want to at least pin their guys in place while leftists don’t need to since from the time you see this message to the time you strike the last key in your response the average prog will have developed a slightly more absurd worldview.

    3. This is dumb. Really dumb. Roberts is a conservative. Conservative does not mean “voted exactly the way Bob from Ohio wants on every case.”

      1. Agree.
        I’ll go a step further and say that the decision upholding the ACA was conservative.

  3. Since you use the term “conservative”, I assume that you know just what that label means nowadays. Would you please tell me? Because there are so many differents brands or flavors of modern “conservatives”, some in direct opposition to others, that the label accomplishes very little in the way of communicating ideas or guiding principles. While the label “liberal”, as used in America today, is deeply dishonest, at least it tells us what the self-identified “liberal” stands for – authoritarian statism, government control of virtually every corner of the economy through more and more regulation (regardless of cost), forced redistribution of wealth and income, and a judiciary flexible enough about what the Constitution allegedly requires to impose political views that can’t win at the polls. But what exactly does “conservative” mean, either generally or with respect to a judicial candidate? Both Alito and Gorsuch bear that label, yet they clearly take very different approaches to many legal issues. I would be thrilled to get another Gorsuch “conservative”, not so much with another Alito “conservative”.

    1. Dan, the reason you think all those types are all “conservatives,” is because almost none of them are?and, paradoxically?that makes them alike. Almost all are alike in one characteristic?a characteristic which happens to have been adopted in general parlance using the term “conservative”?and that is, except for the libertarians, they go light on ideology of their own, but unite in opposing Democrats. Opposition to Democrats is pretty much all that’s left under the conservative label. Isn’t opposition to Democrats what draws libertarians together with the others?

      Perhaps you suppose invective such as, “authoritarian statism, government control of virtually every corner of the economy through more and more regulation (regardless of cost), forced redistribution of wealth and income, . . .” fairly characterizes Democratic Party ideology. You would find broad agreement about that among the panoply of “conservative” types you mention. Invective against Democrats has become the new conservative ideology?pretty much taking over from, and supplanting everything else that previously comprised a conservative value system.

      As someone who mostly doesn’t like Democrats, but finds your invective wide of the mark to the point of silliness, I wish you and the other “conservatives” could get better focused. A return to some of the older conservative values would be appreciated too.

  4. “…but he flattered Pres. Trump obsequiously during the announcement …”

    I didn’t get that. Certainly he was gracious, as he should be.

    1. Kirkland doesn’t even understand the concept.

      1. Granted this may be my biased lenses, but I thought fawning-by-exaggeration was in poor taste, given the epistemological crisis we’re facing these days.

    2. When did lying become gracious? More important, among whom?

      1. When humans first developed speech. “Thank you for inviting me to your dinner party; I had a lovely time.”

        Also, as Orin pointed out on Twitter, there’s no actual lie there.

  5. So, when are they starting the impeachment of Kagan, for hiring such a “dangerous”, evil, , radical alt right person to teach under her?

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