Some Preliminary Thoughts on the Kavanaugh Nomination [Updated with additional material]

Judge Kavanaugh is a highly qualified jurist. I applaud several aspects of his record, while having reservations about others.

Judge Brett Kavanaugh

The Trump administration has been disturbingly abnormal in many ways. But the president's nomination of Judge Brett Kavanaugh to the Supreme Court is as conventional as such selections are ever likely to get. Kavanaugh is a well-liked and widely respected jurist—and a pillar of the conservative legal establishment. I like many of his decisions, and am far more critical of others. But it's hard to argue that any of his views are outside the current legal mainstream.

Jonathan Adler provides an excellent overview of Kavanaugh's record here. See also this thorough analysis by Edith Roberts of SCOTUSblog.

As Jonathan points out, Kavanaugh has an extensive paper trail of judicial opinions and law review articles, among other materials. I am a fan of his criticism of Chevron deference (for much the same reasons as in the case of Justice Gorsuch's views on the subject), his support of a broad view of freedom of speech, and his opinions on freedom of religion and Second Amendment rights. On the other hand, I am concerned about his opinions advocating a broad view of executive power over national security (broad judicial deference in this area is highly problematic), and his championing of the theory of the "unitary executive," which holds that nearly all executive power should be concentrated in the hands of the president. For reasons I summarized here, I think this approach is inappropriate when it comes to situations where the executive wields power far beyond that granted to the federal government under the original meaning of the Constitution. However, it's hard for me to criticize Kavanaugh too much for holding a view on this issue similar to the one I myself held until just a few years ago.

Some conservative and libertarian critics have focused on Kavanaugh's opinions in two prominent Obamacare cases, Seven-Sky v. Holder, and Sissel v. Department of Health and Human Services. While I have reservations about both rulings, on balance I don't find them all that problematic. In Seven-Sky, Kavanaugh did not conclude that the Obamacare individual health insurance mandate was a tax, or create a "road map" for Chief Justice John Roberts' ruling to that effect. Rather, he merely concluded that the mandate penalty "must be assessed and collected in the same manner as taxes" and therefore subject to the Anti-Injunction Act, which bars challenges to taxes (and, according to Judge Kavanaugh, "assessable penalties" collected in the same manner as taxes) until they have actually been assessed and paid. Later in the opinion, Kavanaugh does describe how Congress could potentially restructure the mandate to make it qualify as a tax. But that is very different from ruling that it already is a tax, or could be reinterpreted as such by judges (as Chief Justice Roberts ultimately did when the issue got to the Supreme Court).

Agree or disagree, this was not an opinion concluding that the mandate was a tax, and did not uphold it on the merits. It says little about Judge Kavanaugh's ultimate views about the mandate, or about constitutional limits on federal power more generally.

In Sissel, Kavanaugh rejected a challenge to the mandate (which, by this time, had been reinterpreted as a tax by Chief Justice John Roberts' opinion in NFIB v. Sebelius), which argued that it violated the Origination Clause of the Constitution, which requires "bills for raising revenue" to be initiated in the House of Representatives. I think the Origination Clause lawsuit had merit. But I also do not believe that Kavanaugh's opinion in this case tells us much about his broader views about federalism or separation of powers. The Origination Clause is a provision that allocates legislative power between the House and the Senate, not one that pits the legislature against the executive or the federal government against the states. It is also a Clause that serves little useful purpose, since senators can almost always get allies in the House to introduce any bill that is likely to pass both houses. This approach was not followed in the case of the Affordable Care Act, because the Democrats suddenly lost their filibuster-proof majority in the Senate, and—in any event—few imagined at the time that the ACA's fate would eventually hinge on the argument that mandate is a tax.

I will have more to say about the Kavanaugh nomination in a forthcoming Politico symposium on the subject. As soon as it is up, I will add a link to it in this post.

UPDATE: My contribution to the Politico symposium is now available here, along with pieces by Geoffrey Stone, Ilya Shapiro, Elizabeth Price Foley, John Culhane, Michael McConnell, Eugene Kontorovich, Orin Kerr, Richard Epstein, and Michael Waldman. Here is mine:

The Trump administration has violated numerous norms and enacted a variety of dubious and cruel policies. But the president's nomination of Judge Brett Kavanaugh to the Supreme Court is as normal as such decisions get. Not only is Kavanaugh a well-known, thoughtful, and widely respected jurist, he's the kind of nominee that could easily have been chosen by John Kasich or Marco Rubio. I applaud many aspects of Kavanaugh's jurisprudence and have reservations about others. But all are carefully reasoned, and well within mainstream legal thought.

On the plus side, Kavanaugh is a strong critic of the Chevron doctrine, which requires judicial deference to executive branch agencies' interpretations of federal law. This has obvious appeal to conservative and libertarian critics of the administrative state. But it should also commend itself to liberals who complain (with some justice) that Republican agency heads play fast and loose with the law. More fundamentally, a reduction in deference can help ensure that the dominant interpretation of the law does not change radically any time a new party takes control of the White House. Kavanaugh also has a strong record on freedom of speech, religious freedom, and Second Amendment rights, all areas where modern government imperils liberty.

I am far less enthusiastic about Judge Kavanaugh's support for broad executive power in the national security realm. History shows that excessive judicial deference in this field has led to serious abuses. I am also skeptical of Kavanaugh's advocacy of "unitary executive" theory – the idea that nearly all executive power must be concentrated in the hands of the president. This theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted at the time of the Founding.

If the Senate should confirm any well-qualified nominee who is within the judicial "mainstream," then Judge Kavanaugh's confirmation should be a no-brainer. But we do not live in a world where any such norm is followed. Merrick Garland was also highly qualified and mainstream, yet Senate Republicans denied him a vote. Before that, most Democrats voted against the confirmation of Justice Samuel Alito, and most Republicans voted against Justices Elena Kagan and Sonia Sotomayor, even though all three had impressive credentials. Senators, therefore, have every right to oppose a highly qualified nominee if they object to his judicial philosophy. I look forward to a vigorous debate on that subject during the confirmation hearings.