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Justice Kavanaugh (Updated)

Initial thoughts on the nomination of Brett Kavanaugh to the Supreme Court

Tonight President Trump announced his decision to nominate Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to replace Justice Anthony Kennedy on the Supreme Court. With this nomination, President Trump made good on his promise to nominate highly qualified, conservative jurists. I have been quite critical of this administration on many fronts -- as I expect I will be going forward -- but it has done a superlative job at selecting appellate judges.

Some background and quick thoughts on the nomination. (Unlike others, I did not pre-write a take on this nomination.)

Judge Kavanaugh has served on the D.C. Circuit for twelve years. This court is often referred to as the "second-highest" court in the land because it hears the lion's share of legal challenges to major federal regulations. Administrative law is a heavy part of the court's docket, and forms a large part of Judge Kavanaugh's record. In his time on the D.C. Circuit, Judge Kavanaugh has written over 200 opinions, over 100 of which concern administrative law.

Prior to serving on the D.C. Circuit, Judge Kavanaugh was a partner at Kirkland & Ellis, worked in the Bush White House, and for Independent Counsel Kenneth Starr. He clerked for Anthony Kennedy, as well as for two circuit court judges. There is no question about his qualifications for this nomination.

Attention will now turn to Judge Kavanaugh's judicial opinions and other writings. Aaron Nielson has a summary of Judge Kavanaugh's concurrences and dissents at the Notice & Comment blog. Going beyond Kavanaugh's opinions, here are some other writings. Here's a lecture Judge Kavanaugh gave at CWRU on the D.C. Circuit at the Case Western Reserve University School of Law. A published version of the lecture is here. Here is Minnesota Law Review article on the separation powers and here is Harvard Law Review piece on statutory interpretation. [Previously overlooked, here's another article of Judge Kavanaugh's in the Notre Dame Law Review.]

Here are some additional thoughts on the Kavanaugh nomination:

  • Judge Kavanaugh is widely respected on the Supreme Court. Many of his clerks go on to clerk at One First Street. More importantly, his opinions attract notice from the justices. Several of his dissents have been vindicated by subsequent Supreme Court decisions. His dissents showed the way for the Court in Michigan v. EPA (White Stallion Energy Center v. EPA concerning mercury emissions), UARG v. EPA (CRR v. EPA concerning GHG emissions), Free Enterprise Fund v. PCAOB (concerning separation of powers), and D.C. v. Wesby (concerning qualified immunity). And even when certiorari was granted, Judge Kavanaugh's dissents have been noted in subsequent Supreme Court cases (as in Lexmark International v. Static Control Components which favorably cited Kavanaugh's dissent in Grocery Manufacturers Association v. EPA). This suggests other justices will take the new junior justice's opinions quite seriously, especially on administrative law.
  • Judge Kavanaugh takes administrative law very seriously, and he makes agencies do their homework. As much as any other judge on the D.C. Circuit, he makes sure that agencies act within the scope of the authority they have been delegated by Congress, that they follow the procedures required by the APA, and that the adequately justify their decisions. This has often led to decisions invalidating agency action -- both in challenges brought by supporters and opponents of regulation -- but Judge Kavanaugh is not an anti-regulatory zealot. Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair (as when he rejected challenges to surface coal mining regulations).
  • Judge Kavanaugh shares the Chief Justice's belief that there is a "major questions" exception to Chevron deference. In the challenge to the FCC's "net neutrality" rule, Judge Kavanaugh echoed the Chief Justice's admonition that courts should not lightly presume that Congress has delegated agencies broad regulatory authority if Congress never actually said so in the underlying statutory provisions. [Update: Jeff Pojanowski provides a good overview of Judge Kavanaugh's opinion here.]
  • Judge Kavanaugh takes separation of powers seriously, as can be seen in his dissenting opinions arguing that the structure of the Public Company Accounting Oversight Board (PCAOB) and the Consumer Financial Protection Bureau (CFPB) are unconstitutional. The former of these opinions was subsequently vindicated by the Supreme Court.
  • Like his former boss, Justice Kennedy, Judge Kavanaugh has a broad understanding of the freedom of speech protected by the First Amendment, including commercial speech. This is most noticeable from his separate opinion concurring in the judgment in American Meat Institute v. USDA. In this opinion, he showed a sophisticated understanding of how to reconcile various cases concerning commercial speech regulation and compelled commercial speech (an understanding better than that of the court's majority, as I noted here).

    [Update: As might be clear, I have a much more favorable view of Judge Kavanaugh's American Meat Institute concurrence than Damon Root does. The primary reason for this is that I think his analysis, and in particular his explanation of how Central Hudson and Zauderer fit together is far more important than whether the federal government may impose country of origin labels on imported meat. Most courts have applied Zauderer as something of a blank check for mandatory disclsoure requirements, and Judge Kavanaugh explains why that is not so. I also like the analysis as it is parallel to one I have offered in my own work.]
  • Judge Kavanaugh's views of executive power may depart from those of Justice Kennedy. Whereas Justice Kennedy voted with the Court's liberals in support of habeas petitions filed by enemy combatants in the Boumediene case, Judge Kavanaugh has interpreted this precedent quite narrowly, and may be unlikely to follow his former justice's lead. On the other hand, Justice Kennedy was himself highly supportive of executive power in many national security and foreign affairs cases, voting in support of Presidential power in cases such as Hamdi v. Rumsfeld, Trump v. Hawaii, and Zivotofsky v. Kerry.

  • Judge Kavanaugh will be criticized for prior statements he has made about Presidential immunity. In the Minnesota Law Review article linked above, he suggested that a sitting President should not be subject to litigation or criminal investigation. Note, however, that this was his opinion in 2009. More importantly, he did not suggest Clinton v. Jones was wrongly decided and said explicitly that any such insulation from litigation or investigation would have to be enacted by Congress, and could not be imposed by the Courts. Many early news reports on the nomination obscure or fail to mention this fact.
  • Judge Kavanaugh's extensive record has created an extensive paper trail. There will be lots of documents for the Senate Judiciary Committee to review -- and it's certain that Senate Democrats will seek to slow things down on that basis. On the other hand, insofar as Senate Democrats have already announced their opposition to the nomination -- some even before the nomination was announced -- it's not clear why they would need more time to review the record. After all, they don't need more time to review materials if they've already made up their minds.

I'll have more to say about Judge Kavanaugh's nomination in the coming weeks, but these are some initial thoughts.

[UPDATED with the following additions]

  • Like Ilya, I am not particularly concerned by Judge Kavanaugh's decisions in the two Obamacare cases. In Seven Sky, he concluded that the mandate penalty was a "tax" for purposes of the Anti-Injunction Act. This is an eminently plausible conclusion, even if I'm not wholly persuaded. In Sissel, he wrote a separate opinion concurring in the judgment rejecting the Origination Clause challenge to the ACA, but explaining why the majority opinion's reasoning was flawed. In this case, I believe Judge Kavanaugh got it exactly right.

[UPDATED AGAIN]

  • Although it seems unlikely that a Justice Kavanaugh will be particularly libertarian on criminal justice issues, there are reasons to believe he might be friendlier to criminal defendants than a Justice Merrick Garland would have been. Why? First, we know that Judge Kavanaugh was heavily influenced by Justice Scalia, whose formalists leanings led him to support some criminal procedure claims, particularly those calling for strict observance of express constitutional guarantees. Second, in United States v. Burwell, Judge Kavanaugh dissented from an en banc ruling on whether the government had to prove mens rea to invoke a stiff mandatory sentence for possiession of an automatic weapon during the commission of a crime. The government said proof of possession was enough. A majority of the D.C. Circuit, including Judge Garland, agreed. Judge Kavanaugh, however, argued that the government could not impose a greater mandatory minimum sentence based upon a fact that the criminal defendant did not know. Judge Kavanaugh's dissent was joined by Judge David Tatel, arguably the most liberal member of the D.C. Circuit at the time of the Burwell decision.

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  • California Right To Carry||

    "Importantly, the Heller Court listed several examples of such longstanding (and therefore constitutionally permissible) regulations, such as laws against concealed carry..." HELLER v. DISTRICT OF COLUMBIA 670 F.3d 1244 at 1273 (2011). KAVANAUGH, Circuit Judge, dissenting.

    During the oral argument in my California Open Carry appeal, Charles Nichols v. Edmund G. Brown Jr., et al, Judge Bybee asked a question about "methodology." The methodology I argued in my opening brief and stood by during oral argument is the same methodology advocated by Judge Kavanaugh in this dissent:

    https://www.leagle.com/decision/infco20111004176

    "In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."

    Should my case end up on SCOTUS' doorstep, Justice Kavanaugh is one Justice I won't have to persuade when it comes to "methodology.".

    Status of California Open Carry Lawsuit - Nichols v. Brown 14-55873 - June 15, 2018 and Later - http://blog.californiarighttoc.....ge_id=8178

  • GILMORE™||

    Michigan v. EPA (concerning mercury emissions), UARG v. EPA (concerning GHG emissions), Free Enterprise Fund v. PCAOB (concerning separation of powers), and D.C. v. Wesby (concerning qualified immunity).... (Grocery Manufacturers Association v. EPA).

    why, you almost get the impression that EPA routinely exceeded its regulatory authority

  • nonzenze||

    Conversely, if you look at the EPA cases under Bush, you'd get the impression they routinely refused to enact their statutorily required jobs.

    It's almost like the EPA is headed by a political appointee who attempts to implement their boss's preferred policy to the furthest extent permissible by law, which includes pushing a few cases the lose too.

  • Krayt||

    Isn't "doing a terrible job" something for the voters to correct at the next election? It isn't the legal opposite of overreach.

  • Krayt||

    Isn't "doing a terrible job" something for the voters to correct at the next election? It isn't the legal opposite of overreach.

  • MonitorsMost||

    Even politics aside, it's the hammer and the screw problem. The EPA's statutory authority is a hammer and climate change is a screw. A carpenter looks at the screw and says I don't have the right tools for this. A person whose afraid the house is going to fall over says hammering the screw in is better than the building collapsing.

  • MonitorsMost||

    Even the most ardent of environmentalists would admit that the Clean Air Act and Clean Water Act do not have a good statutory framework to deal with the environmental issue of our time, climate change and greenhouse gases. As there have been no legislative responses, administrations and the EPA have had to be "aggressive" in interpreting the tools at their disposal. Those being the CAA and the Endangered Species Act. Part of being agressive is occasionally or often being told by the courts you are being too aggressive and exceeding your statutory authority.

  • Sebastian Cremmington||

    Europe passed legislation to deal with climate change—the EU promoted diesel passenger cars!! It has been an unmitigated disaster. The common sense position on climate change is to do nothing and let Al Whore pretend to be emperor of the galaxy!

  • AmosArch||

    >Judge Kavanaugh has served on the D.C. Circuit for twelve years. This court is often referred to as the >"second-highest" court in the land because it hears the lion's share of legal challenges to major federal >regulations.

    Blah blah

    >Prior to serving on the D.C. Circuit, Judge Kavanaugh was a partner at Kirkland & Ellis, worked in the Bush >White House,

    blah blah sexist blah

    > of powers seriously, as can be seen in his dissenting opinions arguing >that the structure of the Public Company Accounting Oversight Board (PCAOB)

    blah blah homophobe blah

    >Judge Kavanaugh takes administrative law very seriously, and he makes agencies do their homework. As >much as any other judge on the D.C. Circuit,

    TLDR, I hate him because he probably does not toss and turn in bed breaking out in sweats in the middle of the night with the burning desire to impose mandatory transgender bathrooms on private businesses nationwide. Also because WAPOO told me he is Hitler. Unless he turns progressive like whatshisface...then I love him.

  • Sebastian Cremmington||

    Do you know you currently share bathrooms and locker rooms with people sexually attracted to you? They are called LGBT Americans and they get to spend their days filling up their spank tanks like Trump in the beauty contestant dressing rooms!

  • PoxOnBothYourHouses||

    Personally I would love to share bathrooms and locker rooms with lesbians who were sexually attracted to me.

    Alas.

  • Sebastian Cremmington||

    I just don't understand focusing on the T when the LGB are already in the bathrooms?? Especially when men today are much more involved in the children's lives so the father/daughter bathroom situation happens regularly. My solution is one big bathroom with more privacy at each stall and two sets of mirrors—one for gay dudes and women and one for lesbians and straight men.

  • MatthewSlyfield||

    "My solution is one big bathroom with more privacy at each stall and two sets of mirrors—one for gay dudes and woman and one for lesbians and straight men."

    The only other "solution" that might satisfy a majority of people is single occupancy public bathrooms.

  • David Nieporent||

    The only other "solution" that might satisfy a majority of people is single occupancy public bathrooms.

    The problem is, that only satisfies ideologues on each side -- not people who really hafta go right now. Because those take up significantly more room, resulting in fewer urinals/stalls/etc. overall.

  • MatthewSlyfield||

    "Because those take up significantly more room"

    They don't have to. I have a half bath (toilet + sink) in my house that isn't much if any bigger than most of my closets and only marginally larger than a typical restroom toilet stall.

    That sort of thing would be difficult if not impossible to retro-fit into existing buildings designed with traditional multi-occupancy restrooms, but new construction should be a very different matter.

  • Greg Q||

    No, it does NOT satisfy the ideologues on the Left

    They wish to use the power of the State to force the rest of us to pretend that biology doesn't matter, all that matters are feelings, and "trans women" are real women, not psychologically damaged men.

    IIRC, GG was offered a single sex bathroom to use, and that solution was rejected

  • David Nieporent||

    IIRC, GG was offered a single sex bathroom to use, and that solution was rejected

    He was offered a single bathroom to use separate from everyone else, who were using the common one. We were talking about offering everyone the same thing.

  • I am the 0.000000013%||

    Stainless steel with a soap/rinse/steam/dry cycle between each occupant.

    The first business that offers that and an array of goods like Walmart has my business for life.

  • Greg Q||

    You are both missing the locker rooms, and the changing rooms

    Society has adopted the convention that if you have the same genitalia, and don't act like a sexually turned on freak, we won't complain about the LBG in our locker rooms / chaining rooms

    If you'd like us to terminate that compromise, and go back to "horribly abuse any LBG in locker rooms / changing rooms", keep on pushing the T part.

    I think that would be a shame. But it would be less of a shame than giving into the Left on the T delusion.

    I can't prove, scientifically, that you are not the reincarnation of Napoleon

    I CAN prove, scientifically, that you are male, despite your "feeling" female. (Do you have a penis? Do > 50% of your cells have Y chromosomes? You are male.)

    "Trans" is a sever psychological delusion. You want us to feel pity for those people? Stop pushing us to distort society to pander to their delusion

    You want us to hate them, and go out of our way to harm them?

    Keep on pushing

  • Sebastian Cremmington||

    Actually society keeps pushing for more privacy in bathroom/locker room situations. So in the 1990s I went to a college gym with no stalls between toilets! College dorm rooms now have bathrooms instead of communal showers. We should get to a point where a bathroom/locker room has so much privacy it doesn't matter. To me urinals with no stalls are unacceptable—I want more privacy to the point it doesn't matter if a gay dude is at the next urinal or a woman is in the next stall. Plus that solves the parent/child of the opposite sex problem.

  • Greg Q||

    Let's consider A. A is a heterosexual cis-male would-be rapist

    A would like to find a victim to rape

    A goes into a women's restroom at a mall, looking for a lone female he can overpower & rape

    If he is noticed doing this, a woman can call the police, and they can track him down and arrest him

    If you get your way, then the police can not get involved. Can not even follow him around (that would be "harassment!").

    Thus to "Trans bathroom laws" make real women more unsafe

  • Sarcastr0||

    Let's consider A. A is a heterosexual cis-male would-be rapist

    Nowhere is there more governance-by-salacious-hypothetical than transgenders in bathrooms.

  • Smooth Like a Rhapsody||

    Are you lawyer?
    "What's the worst-case scenario?" is drummed into our heads from week one.
    And how many outlier rape cases--in a country of 315 million people, would it take before you said: "ok, I guess I was wrong"..?
    It is a truism that not all Muslim immigrants are rapists and terrorists; however, Merkel (!) has just caved on the issue of tighter controls.
    It neither bigoted nor irrational to take worst case scenarios into account.

  • Sarcastr0||

    I learned in law school that the argument 'how many x until...' is sophistry and won't play in a court.

  • Greg Q||

    Nowhere is there more head in the sand refusal to observe reality that with transgenders

  • Sarcastr0||

    The reality that women are less safe due to hypothetical rapists?

    The usual slight of hand from hypo to real world was particularly maladroit in this case.

  • Greg Q||

    The reality that if you have a penis, and more than 1/2 your cells have Y chromosomes, you are not a woman

    No matter what you "feel"

  • Stephen Lathrop||

    As much as any other judge on the D.C. Circuit, he makes sure that agencies act within the scope of the authority they have been delegated by Congress, that they follow the procedures required by the APA, and that the adequately justify their decisions.

    The piece about "adequately justify," leaves the door wide open for infringements of separation of powers by the Court. Within the scope of its delegated powers, the government is entitled to reliance on the Necessary and Proper clause. It isn't for the Court to say otherwise by deciding instead what is necessary and what is proper. "Proper," by the way, in the founders' usage, did not mean having to do with propriety—which might suggest the founders intended court oversight—it meant, "having capability to get the job done." The executive branch is far better equipped to decide what means will work than the Court is.

    After the executive decides what is necessary and proper, then the Court can get on with its standards of scrutiny questions, if rights are implicated. But it isn't up to the Court to decide which oxen get gored in the course of making policy. That question is for the political branches.

  • swood1000||

    The piece about "adequately justify," leaves the door wide open for infringements of separation of powers by the Court.

    "Adequately justify" means that agencies have to demonstrate that the action they took was authorized by the legislation passed by Congress. Isn't that appropriate?

    After the executive decides what is necessary and proper…

    The "Necessary and proper" clause is a grant of authority of Congress to enact legislation. It is not a grant of authority to the Executive to exercise whatever power it finds necessary. That is limited by the statute.

  • Stephen Lathrop||

    Agreed on both your points. I was unclear. The notion I was attempting is the uncontroversial one that Congress now delegates quasi-legislative power—including power to choose means—to the executive. As a practical matter, that delegation includes a grant to use necessary and proper means to which Congress is entitled, but which it may not have enumerated specifically. No doubt folks who want less powerful government see that non-enumeration as a point for legal attack. That doesn't make it less true that it commonly happens.

    Here is a question about legal logic, if you care to comment. The grant of necessary and proper means to Congress is tacit, and intended to be—not limitations, but enlargements of Congressional power, as Marshall said. What in the Constitution makes it mandatory, if Congress intends to delegate access to such tacit means to the executive, that it enumerate them while handing them off? Why, if Congress can hand off to the executive powers explicitly granted for certain ends, can it not hand off also the tacitly granted means to reach those ends?

    Would outcomes differ either way? I can see how Congress would be more politically accountable if it couldn't delegate its legislative power to the executive. But I don't see implications beyond that, in also delegating the choice of means—so long as the means used were ones legitimately available to Congress anyway. And if the outcomes don't differ, what is the real point of legal contention?

  • swood1000||

    What in the Constitution makes it mandatory, if Congress intends to delegate access to such tacit means to the executive, that it enumerate them while handing them off?

    The basic reasoning is that the people grant the legislature the power to make laws, not the power to make legislators:

    Congress is empowered "To make all Laws which shall be necessary and proper for carrying into Execution" its general powers. Article I, § 8, par. 18. The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Panama Refining Co.

    Also see Schechter Poultry, which said that Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. Standards can be vague, but at least some guidelines must be imposed by Congress.

    The problem, of course, is determining where the dividing line is. But consider the following delegation by Congress:

    The Executive shall have Power to make all Laws which shall be necessary and proper for carrying into Execution the power to regulate Commerce with foreign Nations, and among the several States.

    Looks like a no-go, since it is the delegation of an entire Congressional power. In practice the Supreme Court has allowed delegation of legislative power in all but the most extreme cases.

  • Stephen Lathrop||

    swood1000, I am reassured by your take on "adequately justify,' but remain skeptical that its meaning is so limited, at least in the minds of some libertarians.

  • swood1000||

    Do you think that the courts are more likely to misinterpret the legislation than the agency? Many people think the opposite since agencies are run by political appointees who change with each new administration.

  • Stephen Lathrop||

    Many of the people who "think the opposite," seem to think so only when the political winds blow contrary to their preferences. Many of those people seem to be judges.

    To me, it seems more forthright—and more practical with an eye to how best to run the nation—to say delegated powers stay delegated until they are explicitly un-delegated. If that means a Presidential election changes the import of a regulatory law, well, what's new? Of course it does. That's been happening for some approximation of forever. It's not a bad feature. It gives the electorate not one, but two options if it wants to use politics to change law—change the Congress or change the President.

    On the other hand, if the electorate wants to use politics to change a law, and a court says it can't, or can do so only in a manner which satisfies the court, what point of political leverage does the electorate have left? Keep in mind, we're not talking about the Constitution, were talking about laws, of the sort that are supposed to be responsive to politics.

    If anything, the accustomed practice is a point of emphasis for arguments in favor of court deference to the political branches.

  • swood1000||

    talking about laws, of the sort that are supposed to be responsive to politics.

    This is the area of Chevron Deference, of course. It can't be denied that an agency's interpretation of legislation should not be granted deference by a court if that interpretation is manifestly unreasonable. An agency, for example, cannot decide just to not enforce a law that is opposed by an industry that is a large contributor to the party in power.

    It's also not obvious to me how "responsive to politics" federal agencies should be. Presumably they are to administer a law objectively. Does Congress intend, when it passes legislation, for the agency to just have a free hand to do whatever it wants to do? It seems to me that it's the legislation that should be responsive to politics. A different party comes into power and changes the legislation but it shouldn't be able to, in effect, veto past legislation.

  • swood1000||

    but it shouldn't be able to, in effect, veto past legislation.

    That is, the President on his own should not be able to veto legislation that was previously passed by Congress and signed by the President.

  • Stephen Lathrop||

    Presumably they are to administer a law objectively.

    My preference—which increases as I get older—is to give more weight to experience than to either presumption, or to its better-regarded cousins among the philosophical disciplines. Your comment strikes me as too much excluding the middle between an illegitimate "veto," and unattainable complete objectivity of enforcement. Experience suggests that middle ground is where almost all the action actually takes place. If that were not so, why would there be so many cases of this kind cluttering up the court dockets? Or, for that matter, so much angst among libertarians about Chevron Deference?

    That said, I don't see how you could do much better at setting forth the theory, and sharpening my layman's thinking on this legal question. Thanks for a good discussion.

  • David Nieporent||

    As always, you don't understand the legal issues you're discussing. What Prof. Adler is writing about in this post has nothing to do with any "necessary & proper" issue. "Adequately justify" is a statutory requirement from the APA. You know, a law. Passed by Congress.

    This is indeed about separation of powers. It is the job of Congress to legislate. It is the job of the judiciary to interpret that legislation. It is not the job of the executive, not in the person of the president and not via agencies -- to do either.

  • swood1000||

    It is not the job of the executive, not in the person of the president and not via agencies -- to do either.

    Of court the executive has to interpret the statute. I think you mean that the executive's interpretation should not be given precedence over that of the judiciary.

  • bernard11||

    Several of his dissents have been vindicated by subsequent Supreme Court decisions.

    Well, OK, but I don't see why that tells us much, or is some sort of mark of merit.

    He's conservative. So is the court majority. It's hardly surprising that they would often agree with him, whether he dissented or was part of the majority.

  • Rev. Arthur L. Kirkland||

    The people advancing that line are advocates, pressing for partisan advantage in a context that inclines them to try to get while the getting is good. It's an understandable argument that stokes unsophisticated audiences.

  • Smooth Like a Rhapsody||

    Which unsophisticated audience has made a living over the last 50 years weaponizing the courts?

  • swood1000||

    He's conservative. So is the court majority. It's hardly surprising that they would often agree with him, whether he dissented or was part of the majority.

    That's possible. However, it's also true that having a low percentage of his decisions overruled on appeal is considered evidence of a competent judge.

  • Brett Bellmore||

    You're not going to get far with that line of reasoning; So far as the left are concerned, there's no relevant "competence", because judging isn't an objective exercise which, properly done, leads you to the same outcome regardless of your politics.

    "Competence" is to be judged entirely in reference to whether the left likes the outcome. How you got there is beside the point.

  • Ersatz||

    ^THIS^

  • Macy's Window||

    Yes. Exactly.

  • swood1000||

    You're not going to get far with that line of reasoning;

    Well, all you can do is supply logical arguments. It's always true that people (on all sides) tend to reject arguments that reach a conclusion they don't like or that is declared to be false by those they identify with.

  • Sarcastr0||

    So many attaboys for telepathically divining that liberals are all legal realists. Which basically means all liberal judged that have been interviewed are liars.

    Pure partisanship sells!

  • TBlakely||

    "I have been quite critical of this administration on many fronts"

    Why is it so many 'conservative' bloggers have to add such comments whenever they reluctantly complement Trump about something he does? Is it so hard just to say 'Yeah, Trump did a good job with XXX' and just leave it at that? Will you be purged from the blogger tribe if you don't throw in some kind of anti-Trump jab whenever discussing Trump?

  • para_dimz||

    Smooth sounds from Kavanaugh. But it does not satisy. His underlying premise stems from the position that that which is not explicitly withheld from government is permissible. There's no other way to get to "constitutionally permissible gun regulations" in the face of two nefariously forgotten things. The first being the clause "shall not be infringed". Someday the court should be forced to explain it away instead of just ignoring it. The second of my dissents is that the "that which is not withheld is permissible" viewpoint also nefariously, IMHO, writes out the Ninth amendment. Consideration of the Ninth puts the lawyers on the court in the uncomfortable position of having to deal with an open ended grant of rights. Additionally, that open endedness forecloses attempts to bracket a set of rights to satisfy that desire for legal certainty by the legal community, except those like Randy Barnett. Well, the Ninth is as certain as it gets as it makes no attempt to break out of the human constraints natural law puts on us. So then, who would decide? A jury under common law. Rights are something government cannot have any regulatory power to curb. That belongs to us in our duty as jurors. No one can honestly, which is not to say logically as logic is just word games sometimes, say there is any permissible regulation on firearms. Kavanaugh comes up a little short. But I would ask my senators to vote to CONSENT enthusiastically.

  • Kruser||

    This administration "has done a superlative job at selecting appellate judges." How does Matthew Petersen fit into that narrative? Just saying...

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