The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
- 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.