Free Minds & Free Markets

And the Next Supreme Court Justice Nominee Is Brett Kavanaugh

Following the resignation of Justice Anthony Kennedy, President Trump makes his second appointment to the Supreme Court of the United States.

President Trump announced his second appointment to the Supreme Court of the United States on Monday evening. The announcement came on the 150th anniversary of the 14th Amendment, which granted citizenship to all "persons born or naturalized in the United States" following the end of slavery in America.

Trump has chosen Brett Kavanaugh to succeed Justice Anthony Kennedy, who announced in June that he would be stepping down from the bench on July 31 of this year.

Kavanaugh, 53, is a judge of the United States Court of Appeals for the District of Columbia Circuit. As Reason previously reported, spectators look to Kavanaugh's 2011 dissent in Seven-Sky v. Holder to gauge what kind of justice he will be.

The case considered the constitutionality of the Patient Protection and Affordable Care Act, otherwise known as Obamacare. Though the case was ultimately decided in favor of the healthcare bill, Kavanaugh's dissent argued that a federal court should not have heard the case in the first place:

In Kavanaugh's view, the D.C. Circuit should have been guided by the Anti-Injunction Act, an 1867 law that says, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." In other words, a tax cannot be challenged until it has been assessed and paid. And in Kavanaugh's view, Obamacare's individual mandate deserved to be counted as a tax, even though the law's authors called it a "penalty." "The Anti- Injunction Act precludes us from deciding this case at this time," he wrote.

Kavanaugh's opinions on gun rights, searches and seizures, and Citizens United v. Federal Election Commission have also provided some insight into what decisions will come out of the future court.

As Reason also reported, politics also come into play heavily for Kavanaugh as Senate Majority Leader Mitch McConnell believed that Kavanaugh's "extensive paper trail could slow down the process and enable Senate Democrats to prevent confirmation prior to the start of the next Supreme Court term in October." McConnell informed that White House that confirming Kavanaugh would be more difficult than confirming other Trump finalists like Judges Raymond Kethledge or Thomas Hardiman.

It was said that out of the names on Trump's short-list, he was most favorable toward Raymond Kethledge, 51, of the United States Court of Appeals for the Sixth Circuit. In contrast, Trump was least favorable toward Amy Coney Barrett, 46, of the United States Court of Appeals for the Seventh Circuit. In fact, Bloomberg reports that her interview with Trump was shorter than everyone else's, lasting about 30 minutes.

Kavanaugh will replace a justice who was, as Reason's Damon Root observed, a "moderate conservative with liberal tendencies." Appointed to the Supreme Court in 1987 by President Ronald Reagan, Kennedy's tie-breaking vote solidified his legacy in influencing highly contested legal issues. Kennedy's vote played a significant role in deciding cases that are seen cornerstones to American gay rights and abortion laws. Root writes:

Over the years, Kennedy has been denounced by every major faction in American politics. In conservative circles, for example, he has been keelhauled as a reckless judicial activist who "invented" a right to gay marriage. Liberals, meanwhile, have burned him in effigy as the unwitting mouthpiece for corporate oligarchs thanks to his majority opinion in the Citizens United case. And among libertarians, Kennedy has been damned as the fair-weather federalist who torpedoed the rights of local medical marijuana users in favor of a federal drug control scheme. Libertarians will also point out that Kennedy joined the majority opinion that unleashed the forces of eminent domain abuse in Kelo v. City of New London (2005).

Photo Credit: Jonathan Ernst/REUTERS/Newscom

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  • perlchpr||

    Well, good job on guessing who the pick would be, re: all the coverage of late on the subject and this dude.

  • perlchpr||

    Nice to see that the fellow likes the 2A.

    It would be nice to see someone who cares about the whole thing, but, I've been told that it's a war and there can be no empathy, so fuck it, I'll take some love for my favorite right for a change at the expense of traditionally left-wing causes.

  • Echo Chamber||

    I echo that

  • Scarecrow Repair & Chippering||

    You probably chamber rounds too.

  • Marty Feldman's Eyes||

    that unleashed the forces of eminent domain abuse in Kelo v. City of New London.

    That's not correct. The majority opinion failed to restrain the forces that were already running rampant.

  • MarkLastname||

    "Unleash" is arguably equivalent to "failing to restrain."

  • Rockabilly||

    Sale on Aisle 5 for Trump Tissues !!!

  • Eddy||

    Well, it seems he was involved in the Lewinsky investigation *and* Bush v. Gore.

    Plus he voted against illegal immigrant abortions (I'm not making this up).

    So I guess we can prepare for some low-key and calm confirmation hearings. /sarc

  • OpenBordersLiberal-tarian||

    Plus he voted against illegal immigrant abortions

    Wow, are you trying to make me hate this guy more than I already do? Might as well tell me he was the driver who ran over my dog Rex when I was 8 years old.

  • Entropy Drehmaschine Void||

    Might as well tell me he was the driver who ran over my dog Rex when I was 8 years old.

    THAT was Sen Ted Kennedy.

  • ion hydro||

    Apparently he also led the investigation into the suicide of Clinton aide Vince Foster.

  • Bubba Jones||

    So Hillary owes him a favor?

  • Conchfritters||

    Most of the immigrants from down south are Catholics and don't believe in abortion - it is known.

  • Ecoli||


  • OpenBordersLiberal-tarian||

    It's not too late to contact your US Senators and tell them not to confirm another dangerous right-wing extremist. Our country cannot afford another conservative judicial activist similar to Gorsuch. The process must be delayed as long as possible, ideally until after Democrats gain control of Congress in the #BlueWave and #ItsMuellerTime has kicked Drumpf out of the White House over #TrumpRussia.


  • Atlas Slugged||

    I'm curious does the majority think he is A) sniffing glue, B) frequently hypoxic, C) acephalic, or D) mentally disturbed?

  • Eddy||

    E) Doing an uncannily-good parody of a liberal-tarian.

  • Nardz||

    He has an uncanny ability to concisely state progressive positions in their simplest, and most accurate, forms.
    His portrayal of progressivism is surpassed only by Tony's - perhaps because Tony is actually sincere. I don't think it's possible for artistic expression to quite capture the pathology of progressivism, but OBL certainly nails the "logic"

  • Freddy the Jerk||

    Needs way more "cousinfucker" to approach Tony-level postings.

  • Nardz||

    The pessimism and anger is so much more real though.
    But pessimism isn't exactly the right word. It's more misanthropy.
    Ironic, yet fitting, for their altruistic posture.

  • Tony||

    I don't particularly like people, which is why I want a functioning civilization that keeps them from fucking up my shit because they can't afford a tonsillectomy.

    It's not love vs. hate of people. It's smart vs. retarded.

  • loveconstitution1789||

    Tony, Socialists like you love murdering people for sure.

  • Scarecrow Repair & Chippering||


  • shortviking||

    There is no such thing as a conservative activist.

  • Freddy the Jerk||

    Oh just shut the hell up. Your schtick's just tiresome.

  • Juice||

    Some part of the article get cut out?

  • Lost in the Woods||

    It would appear that there is more cause for optimism than for pessimism in this selection. In the current environment, this is a rare thing, I think.

  • Eddy||

    Well, he is definitely a Swamp Creature, but perhaps he has enough principles to get past that background. Better than Garland, I imagine.

  • Bubba Jones||

    Maybe. He seems to have learned some of the right lessons from his stint in the swamp.

    From earlier today:

    Drawing on his experience in the George W. Bush administration, Kavanaugh wrote that "Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints." While "it is no surprise that Presidents and agencies often will do whatever they can within existing statutes," he said, "that inherent aggressiveness is amped up significantly" by anticipation of Chevron deference. In fact, "executive branch agencies often think they can take a particular action unless it is clearly forbidden."

  • Eddy||

    Hmmm...not bad.

    I'll wait for the hit pieces, maybe I'll find out even more good things which they think are "controversial" and "extreme."

  • Nardz||

    The hit pieces might turn me, but I'm a bit disappointed at the moment. It seems to me that Trump had his arm twisted on this one. Hopefully, Kavanaugh will rule more like Gorsuch and less like Kennedy, though I have the feeling that he'll follow his mentor's inconsistency.

  • loveconstitution1789||

    The bright side is that Gorsuch was not expected to be as originalist as he turned out to be.

    Maybe the one-on-one discussions with Trump really allow Trump to make sure the nominee is originalist.

  • chemjeff radical individualist||

    Well this should be good, seeing the Trump Superfans defend Kavanaugh's "ObamaCare Is A Tax" views

  • Palin's Buttplug||

    Kavanaugh believes in the Unitary Executive/Dictator/Top Man concept.

    The others never had a chance.

  • Bubba Jones||

    That isn't what his Chevron writings say.

  • Marcus Aurelius||

    You mean Obama's lawyers who argued that it was a tax, after they argued that it wasn't? Right.

  • DH||

    I'll just be sad when Thomas goes.

  • Paloma||

    Ginsberg is 85. Breyer is 79. Thomas is 70. Alito is next at 68. I think Clarence Thomas can outlast Ginsberg, by the time he's her age, she'd be 100.

  • DH||

    Hopefully. After his opinion in McDonald Vs Chicago you realize how awesome he was. Definitely not Scalia puppet.

  • JeremyR||

    I dunno. Black men don't live near as long as white women. She's got another 10 years, he might only have 5-6

  • fdog50||

    As journalist Julianne Malveaux said in 1994: "I hope his wife feeds him lots of butter and eggs and he dies early, like many black men do, of heart disease."

  • JesseAz||

    Her liver is already 100. Maybe 110.

  • Fats of Fury||

    Fuck, another squish and covered in Bush taint. How long before he succumbs to Linda Greenhouse's seductive dance of the seventeen veils and starts voting in favor of Venezuelan socialism type penumbras and emanations.

  • Flinch||

    Gotta watch out for those emanations and penumbras... they're hard to get off your shoes.

  • John C. Randolph||

    a tax cannot be challenged until it has been assessed and paid.

    Fuck that noise. We overthrew King George the Looney over taxes.


  • Ken Shultz||

    Before this thread gets all emotional and out of hand, I think it's important that we keep a few things in perspective.

    Eh, screw it.

    Dear Progressives,

    Suck my dick.

    Your President,

    Donald Trump

    P.S. LOL

  • Bubba Jones||

    You forgot to phrase it in the form of a twit

  • Conchfritters||


  • Agammamon||

    The anti-injunction act is an ass.

    Heh, can't challenge your death sentence until after its been carried out.

    Can't challenge the government's assertion of eminent domain power until after your property has been seized.


  • Eddy||

    There might be a constitutional case against that Act.

    How can someone be required to pay an unconstitutional tax, even if they are graciously allowed to sue to get the money back?

    Why should the government have the money at all, if it's unconstitutional?

  • Flinch||

    Is the next step for the statists to insist you can't get discovery until after a verdict? Mueller might be blazing that trail as we sit here.

  • Ken Shultz||

    I think our gun rights are likely to be under more pressure than anything over the next 20 years, so what I really care about is where he's at on gun rights.

    Where is he on the Second Amendment?

  • Palin's Buttplug||


  • Eddy||

    Nobody is coming to get your penis-substitute murder machines which you don't have an individual right to possess anyway!

  • DH||

    Ya that's exactly what gun grabbers would do if people didn't fight to preserve their rights. Fuck off

  • Palin's Buttplug||

    This country would ban all religion before banning handguns, you dumb hick.

    Chance for either - .00000001.%

  • Eddy||

    They're not going to ban all religions and guns, just the unpopular ones.

  • Ken Shultz||

    Have you not heard about gun control laws in DC, Chicago, and elsewhere?

  • Ken Shultz||

    Handguns were banned in Chicago in 1982.

    That didn't even come into question until Heller--less than 10 years ago.

    Shrike was commenting on this board when handguns were illegal in various parts of the country.

    What an ignorant fuck!

  • Palin's Buttplug||


    This country would ban all religion before banning handguns, you dumb hick.

    There is a zero chance of a federal handgun ban.

  • Ken Shultz||

    So you're saying that we shouldn't worry about local gun ordinances being struck down or upheld by the Supreme Court--because it only matters if guns are banned in the whole country?

    That's stupid.

    You're not even that stupid.

    That isn't what you were talking about, and if it were--you're a fucking moron.

  • Palin's Buttplug||

    I repeat.

    There is a zero chance of a federal handgun ban.


    There are too many things that are banned to get your panties wadded up about a federal handgun ban with zero chance of happening.

  • Ken Shultz||

    You think Heller and other decisions on local gun ordinances don't resonate nationally?

    You're an idiot.

    It's funny because, on the one hand, you're trying to pretend you're dumber than you are, but, on the other hand, in pretending to be dumb, your argument is making you look even dumber than you're pretending to be.

  • chipper me timbers||

    Only because Hilary lost. if she were appointing Justices right now I'd start two worry it's a non-zero chance.

  • DH||

    So like guns=hick? OK. Now if you could point to all the people calling for religion bans that overshadows the call for gun bans.
    No, nothing? Then fuck off.

  • Palin's Buttplug||

    I own guns. So I will try again:

    Anyone who believes that a federal handgun ban is possible is a dumb hick.

  • Rebel Scum||

    You're incredibly bad at addressing the actual point of statements.

    1) federal gun bans (like local and state gun bans) are unconstitutional but are absolutely possible and there is documented history of them happening before. Some still exist.
    2) the point DH was making is that there is no one calling for bans on religion. However, there are plenty of people calling for bans on guns. So that matters.

  • DH||

    I said all guns not just handguns. But since you can't read, I guess I understand your confusion. Maybe guns wouldn't be banned in the current political climate, but if you believe that others won't try to force their will upon you via government action when they have the power and chance you probably shouldn't be on a libertarian website.

  • Ken Shultz||

    "In Heller," Kavanaugh noted, "the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional."

    Okay, so +1 for Kavanaugh

  • Bubba Jones||

    Plus AR15.

  • Palin's Buttplug||

    Topping Trump #SCOTUS list Brett #Kavanaugh wrote in 2009: Sitting presidents cannot be indicted, rejecting concerns that POTUS is thus above the law, concluding the only constitutional remedy for bad-behaving "dastardly" president is impeachment

    Trump likes the guy who believes in Supreme Executive Power.

  • Flinch||

    That just mirrors what DOJ visited under Nixon and Clinton to develop policy. If congress won't act, then... screw it.

  • Rebel Scum||

    "supreme executive power"

    Except for the constitutional way to remove a president: impeachment.

  • Rebel Scum||

    Which is in your quote. But you knew that.

  • Palin's Buttplug||

    A POTUS can certainly commit a criminal act which would make him subject to removal from office. So a trial is in order to determine if a crime is committed.

    I will quote the US Constitution (do you need a link?)

    "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors."

    That is the actual TEXT - something I thought idiot "originalists" cared about.

  • Rebel Scum||

    removed from office on impeachemnt

    Exactly. Whats your point? The indictment and trial is carried out by the legislature, not a federal prosecutor and a civil court. Fuck off, you ignorant, partisan cunt.

  • Palin's Buttplug||

    Not good enough.

    Trump said he could murder in broad daylight and Republicans would stand behind him.

    I want him tried for that murder post haste.

    He might get some white version of an OJ jury but he needs to be tried.

  • Rebel Scum||


    "he needs to be tried."

    Constitutionally, the president must be impeached. Lowly prosecutors that work for the president cannot indict the president,
    no matter who the president is. Impeachment is the trial to remove from office. Then criminal prosecution can proceed. Why is that so hard for you to grasp?

  • Palin's Buttplug||

    We know that you Republicans are always tribal and don't care about the law.

  • Rebel Scum||

    Not a Rpublican and I care about the rule of law, period. You do not.

    "Trump said he could murder in broad daylight"

    Citation? Also, Murder-Drone Barry could not be reached for comment.

  • Atlas Slugged||

    supreme executive power comes from a mandate from the masses, not from some farcical aquatic ceremony....

  • sparkstable||

    Exactly! However... if said ceremony included a watery tart throwing a scimitar at someone... that someone may be in a better position at that point than others to enforce his claim to supreme executive power, thereby subjugating the masses via violent oppression.

  • Last of the Shitlords||

    "Trump likes the guy who believes in Supreme Executive Power."

    First, Kavanaugh is correct. a criminal indictment would require impeachment and conviction first. That isn't his opinion, it's a fact. Second, you don't appear to have much issue with extreme executive power when someone like Obama is in charge.

    Which is typical of an individual, such as yourself.

  • Devastator||

    Yeah, I personally believe this is why Trump picked him. Doesn't matter though, he can still be impeached. The Supreme Court doesn't have anything to say about that.

  • Elias Fakaname||

    "Trump likes the guy who believes in Supreme Executive Power."

    Yet Trump respects the constitution and doesn't violate it, unlike Obama with his phone and pen.

    Yet another sad attempt by PB to insult our great president.

    Yet another failure by PB.

  • Ken Shultz||

    Also, I think it's reasonable to judge this guy against what we would have had if Hillary had been elected.

    She campaigned on appointing SC justices specifically because they were hostile to gun rights.

    If this guy is just a wash on the issue, that still makes him better than what we would have had otherwise.

  • Rebel Scum||

    This. She campaigned on appointing activists justices. We have enough of those. Too many, in fact. From a philosophical standpoint, constructionists are the only ones qualified.

  • Elias Fakaname||

    Hillary basically campaigned on ending the rule of law and installing herself as empress.

  • Eddy||

    I don't get it.

  • Ken Shultz||

    He's got lust for life!

  • Ken Shultz||

    Drives a GTO.

  • Ken Shultz||

    That's just hypnotizing chickens.

  • Eddy||

    Whatever TV program/movie/video game you're citing, I'm afraid I haven't seen/played it.

  • SIV||

    America's greatest commercial jingle composer, James Osterberg

  • Ken Shultz||

  • Eddy||

    OK, thank you.

  • sparkstable||

    I really liked him in Pete and Pete. One of the greatest shows ever.

  • Eddy||

    Look at Mr. Picky over there.

  • Eddy||

    And I'd like that flying-monkey-summoning hat Dorothy had.

  • perlchpr||

    Napolitano would have been, but I don't think he would have ever been a serious pick.

  • Last of the Shitlords||

    We especially need one who is strong on the 3rd.

  • sparkstable||

    We need one who is solid on the 10th. Get that one right and most of the other issues really start to move in our direction. It's not a complete victory at that point, but I'd rather have the bad guys have to fight in 50 places to do bad things and win some, lose some rather than fight in one place and win for the whole country to get screwed.

    Plus... I'd rather have a more realistic option of moving from state to state (rather than the "well just move" argument that now requires me to move across the globe for any realistic change) if I didn't like how things are going locally.

  • I am the 0.000000013%||

    Good points

  • Mock-star||

    I would like to see one who was solid on the 9th more than anything.

  • Devastator||

    Neither party stands up for the 4th amendment any more, that would impeded the police state too much.

  • Blargrifth||

    "Kavanaugh will replace find themselves replacing a justice who was"

    Note to the new kids: you only have one chance to make a good impression.

  • Ken Shultz||

    And the opportunities to make a bad one never end!

  • crufus||

    "Trump was least favorable toward Amy Coney Barrett"

    Was he unable to grab her pussy?

  • Enjoy Every Sandwich||

    Looking out my window...I guess I'll see the women in their "Handmaid's Tale" uniforms any second now, right?

    I mean, I'm always so confused on what the Progs say we are now. Is it the Confederate States of America? Nazi Germany? The Republic of Gilead? Or will this pick drive them to choose yet another hysterical bullshit analogy?

  • Eddy||

    Trump is Hitler and (insert name of nominee) is Roland Freisler.

    (See, I was too lazy to update my draft press release to include Kavanaugh's name)

  • Conchfritters||

    The Republic of Gilead?

    You have forgotten the face of your father.

  • Entropy Drehmaschine Void||



  • kfs||

    If Trump makes America any greater they're going to have to launch an investigation. Oops, never mind !

  • Fk_Censorship||

    Kavenaugh's acceptance speech was quite terrible and uninspiring. Lots of feelz and virtue signaling, and very little to give us hope. He spoke like a true swamp inhabitant. I hope this won't reflect on his actual performance when reviewing cases.

  • Joe Emenaker||

    Told ya that there was no way in hell Trump would be able to bring himself to nominate someone with brown skin or two X chromosomes. All that time you spent analyzing Barrett... (sigh)

  • Hattori Hanzo||

    Democrats are in a tizzy. Nothing but pre-scripted comments about Kavanaugh. Not a single one of the can actually point to any specific reason why they will oppose him. Amash, however, will probably be providing us with reasoned rationale to oppose him.

  • Tony||

    So we kick Mexicans out to cleanse our gene pool and then outlaw abortion for poor Mexicans who are already Catholics. Make up your minds, jesus.

  • Eddy||

    Sometimes Tony has a bunch of extra words which he simply has to use, strung together randomly if need be.

  • Elias Fakaname||

    Tony has this fever dream where everything in the world is based on identity politics. His little squid brain can't conceive of anything else.

  • I am the 0.000000013%||

    Given that whoever Trump nominates right now will be branded Hitler, is there more to this pick than he's Trump's fave?

    Is he a sacrificial pawn, a stalking horse, an unstoppable force...?


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