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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 KavanaughJudge 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.

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  • Sebastian Cremmington||

    This guy has one job—overturn Roe v Wade. Then maybe Americans with 150 IQs will use their big brains to cure cancer or colonize Mars instead of using their brain power to coming up with a rationale that a provision is a tax or that two dudes have a right to enter into an agreement that gives them spousal Social Security benefits—DREAM BIG!

  • James Pollock||

    "This guy has one job—overturn Roe v Wade."

    Why would anyone even remotely libertarian want this?
    What? Decide for myself what medical treatment I should receive or not receive? Hell, no. I want the GOVERNMENT telling me what I can have, or can't.

  • Smooth Like a Rhapsody||

    Maybe a libertarian wants a coherent constitutional order in which political questions are left to the political process.

  • Stephen Lathrop||

    Makes sense in theory. Does it make sense as applied? Isn't the Roe v. Wade controversy about whether abortion decisions belong to women as a matter of right? If it's about rights, how is it a political question? You may have good answers. If you do, try to make sure they work for you when applied to gun regulation.

  • Smooth Like a Rhapsody||

    Roe is about whether we will let the political process or 5 judges determine when life begins under our system of government.
    One of the most intellectually embarrassing moments in American jurisprudence was when Blackmun said that SCOTUS is not equipped to answer such metaphysical questions: and then proceeds to do exactly that.

  • Scarecrow Repair & Chippering||

    On the whole, I'd rather have his views on the 2nd and 4th amendments than the reverse, because gun control laws have expanded in a few states far beyond what Heller said, and any rollback now would last for generations unless Hillary appointees pull the nuclear option on stare decisus. But then the next GOP appointees could reverse that just as easily, so I don't think that's a long term worry.

    Whereas whatever he does to weaken the 4th amendment and expand the executive would be easier to roll back later. I think.

    Gun registrations are too real on some states, and I have no doubt a Hillary admin would love to expand that nationwide so confiscation could be that much easier later. I want those registrations rolled back pronto as the most vital step, and secondly I want assault weapon bans and other limitations on specific types of guns removed so people can get their hands on stuff that would be hard for Hillaries to confiscate later without registries. I don't mind not having machine guns nearly as much, although I'd buy one if I could.

  • ||

    Any "assault weapon ban" would fall under any level of scrutiny if a court actually analyzed it in good faith. But when you have circuit courts ruling that a perception of improved public safety, even if there is no actually improvement in public safety, is a substantial benefit that justifies infringing on the 2nd Amendment, you clearly have no good faith.

  • James Pollock||

    "Any "assault weapon ban" would fall under any level of scrutiny if a court actually analyzed it in good faith."

    So... prisons should be required to allow assault weapons to convicts? Because the prisons have outright bans on them, and, to be honest, of all the places I might ever go, I'm pretty sure a prison would be a place I'd want and need a firearm for personal protection. I'm going to need to fire quickly and reload infrequently, so an assault weapon is probably the way I'll want to go.

  • Brett Bellmore||

    " the theory of the "unitary executive," which holds that nearly all executive power should be concentrated in the hands of the president."

    This is the wrong way to look at it. The theory of the unitary executive holds that all executive power "IS" concentrated in the hands of the President. Whether it should be is a topic for people drafting constitutions and amendments, not for judges.

  • PubliusVA||

    I've been searching the Constitution for any hint of where else executive power might be vested. No luck so far.

  • Longtobefree||

    Put on your socialist glasses and try again.
    Commerce clause maybe?
    General welfare for sure.

  • Brett Bellmore||

    Here's a hint: Try looking in Article II.

    "The executive Power shall be vested in a President of the United States of America." (The source of the unitary executive doctrine.)

    In section 2 of that article, you'll find his powers listed. In addition, to the extent Congress enacts constitutional legislation, he's the one who implements it.

  • Brett Bellmore||

    Perhaps I misread you, and was excessively snarky. Too much blood in my caffeine stream this early.

  • PubliusVA||

    No problem, I know how you feel!

  • PubliusVA||

    Right, and there's no hint of where ELSE executive power might be vested. But perhaps Prof. Somin can help us out with a textual basis for a "plural executive" doctrine.

  • swood1000||

    Article 2 Section 3: "…he shall take care that the laws be faithfully executed…"

  • PubliusVA||

    "He" being the president. Still can't find some other place to vest executive power, other than that unitary officer.

  • James Pollock||

    " to the extent Congress enacts constitutional legislation, he's the one who implements it."
    .
    Except when Congress directs otherwise. Several agencies are set up in such a matter to place part of the management outside the President's control, such as by placing control of the agency in a directing board, which has staggered appointments and terms of service that extend beyond the next election.

    The question of how much authority Congress has to enact legislation in this way is why the subject matters to the judiciary. Of course, the President could veto legislation that stripped Presidential authority over some agency, if that were an issue. But signing it into law and THEN fighting it in court seems like something that should have been dismissed as waived.

    I figure it's more important at the state level, where the various state constitutions use different language in separating the powers of their state governments.

  • kramartini||

    Your waiver argument would appear only apply to the President that signed it, not to subsequent Presidents...

  • James Pollock||

    " Whether it should be is a topic for people drafting constitutions and amendments, not for judges."

    Well, except that when the legislative body decides to create an administrative agency, and shield its operation from political pressure, then the judges have to figure out whether their solution is permissible under the Constitution as written.

  • Brett Bellmore||

    No, that's still the judiciary deciding "is", not "should". If it's constitutional for Congress to do that, it's constitutional even if it's a bad idea.

  • James Pollock||

    Congress is deciding if it SHOULD try to deprive the President of some authority over executive agencies, when it creates the structure of the agency.. The courts still have to decide if the method they've chosen is allowable under the Constitution.

    It's a complicated dance. The majority won the election, so they get to make decisions. They don't, however, get to make decisions that unfairly preclude the opposition from winning the next election. (There are states where members of party X would be only to happy to pass a law disenfranching anyone who registered in party Y, as being incapable of rational, adult thought. But they don't get to do that. I'd suggest that attempting to disenfranchise someone else ought be punished by losing the right to vote, but, well... Catch-22.)

  • Brett Bellmore||

    No, that's still the judiciary deciding "is", not "should". If it's constitutional for Congress to do that, it's constitutional even if it's a bad idea.

  • James Pollock||

    It doesn't sound any smarter the second time.

  • kramartini||

    Kavanaugh's adherence to unitary executive "theory" merely confirms his proficiency at reading and comprehending standard written English...

  • Smooth Like a Rhapsody||

    I would like a sociologist to tell me how we arrived at the point where the only people eligible for SCOTUS are Catholics/Jews, who went to Harvard/Yale, and who served on the Circuit Court of Appeals.
    That's 27 possible boxes (9 × 3), and this Court checks 26 of them.
    Where's the imagination?

  • Brett Bellmore||

    Perhaps we don't want Supreme court justices with "imagination". Maybe we want boringly predictable Supreme court justices, because whenever they exhibit "imagination" they're generally going off the rails?

  • Longtobefree||

    Everyone is constitutionally eligible; it is just politics that those who get nominated and confirmed fall into those categories.
    Something about elites.
    Please hold that thought, and at the next constitutional convention, have a clause requiring at least 50% of the SC be non-lawyers.

  • Smooth Like a Rhapsody||

    SCOTUS does not require a law degree, although having a law degree seems like a handy qualification.
    It's weird though, that the entire Court is from such an extremely narrow demographic.

  • Brett Bellmore||

    Not really weird. The people in charge of nominating and confirming have been getting what they want out of that narrow demographic, why would they mess with a successful recipe?

  • Smooth Like a Rhapsody||

    This assumes that either the White House in question doesn't think this stuff is important--and so just takes the easy way; or, that vetting procedures are still so primitive that the only way to get one of "ours" is to keep using the same cookie cutter.
    Neither prospect is terribly cheering.

  • Brett Bellmore||

    The latter. There are two serious obstacles to good vetting.

    First, the universe of Supreme court nominees confirmed is small enough that statistical analysis is futile.

    Second, you're asking what people who are subject to being overruled will do if given a life-long job where they're 1/9th of a dictator. You don't really know what people will do if they're suddenly handed a large increment of unaccountable power without any real chance of blowback if they do things people don't like.

  • Bob from Ohio||

    "Catholics/Jews, who went to Harvard/Yale, and who served on the Circuit Court of Appeals"

    And from the NYC and DC areas.

    Kavanaugh and Gorsuch went to high school together and clerked for Kennedy at the same time for goodness sake.

  • Smooth Like a Rhapsody||

    And I forgot to add:
    Never conducted a voir dire.

  • QuantumBoxCat||

    During his acceptance speech last night Kavanaugh said:

    "No President has ever consulted more widely, or talked with more people, from more backgrounds, to seek input about a Supreme Court nomination."

    I'd really like for one of the Members of the Judiciary Committee, during the confirmation hearing, to ask what sort of research he conducted to support that claim. Did he read through the personal papers of every prior president as it pertains to every Supreme Court nominee? How many people did the next highest president consult with? How many people did the least consultative president consult with? In other words, what evidence did he find to Support his claim, that of every president since Washington, Trump consulted the most people about a Supreme Court pick?

    Assuming the response is that he was speaking informally, the next question would then be whether he believes hyperbole is a quality that Article III judges should display,.

    That would be fun.

  • Rev. Arthur L. Kirkland||

    He was ornately flattering the president -- someone for whom he likely has scant respect -- because cynical, transparent obsequiousness is the route toward something he covets.

    Partisan hacks tend to do that sort of thing. It has become a lifelong pattern with Judge Kavanaugh.

  • Smooth Like a Rhapsody||

    (spoken in the voice of Emperor Palpatine):

    "..good...good...let the butt hurt flow through you..."

    (Sorry, Sarcastro, I couldn't resist)

  • Bob from Ohio||

    "the next question would then be whether he believes hyperbole is a quality that Article III judges should display,"

    Do you really think the half wits in the Senate can successfully banter with him?

    I am meh on the nomination but there is little doubt he is smarter and quicker on his feet than at least 90 senators.

  • David Nieporent||

    Assuming the response is that he was speaking informally, the next question would then be whether he believes hyperbole is a quality that Article III judges should display,.

    I think the correct response to that is, "That's the stupidest question in the history of the universe."

  • Eddy||

    "he's the kind of nominee that could easily have been chosen by John Kasich or Marco Rubio"

    Oh, that's reassuring.

  • Brett Bellmore||

    " 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."

    You're misidentifying the locus of the problem here. It's not the unitary executive, which is pretty explicitly grounded in the Constitution. It's the unconstitutional expansion of power.

    When you unconstitutionally expand federal power, there isn't ANYBODY who can properly exercise the power, because the power itself is illegitimate, regardless of who you hand it to.

  • PubliusVA||

    "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."

    You misspelled "until Trump was elected."

  • Brett Bellmore||

    That was my reaction, too. But, having not looked into it, maybe he did change his mind before Trump announced.

  • James Pollock||

    To be fair, it was once common to assume that the President of the United States was a task one could expect dedication to, and not something a businessman would take on as a side project.

  • Brett Bellmore||

    And, before that, the opposite view prevailed.

    But we're talking about unitary executive theory, and the fear that too much power of recent vintage might end up in the President's hands. Nothing to do with wild theories that Presidents are constitutionally obligated to divest themselves of any business interests.

  • James Pollock||

    Why are you wandering off on a tangent?

  • PubliusVA||

    Well, in December 2016 (in a VC post titled "Three issues I changed my mind about in 2016"), in discussing the unitary executive theory he wrote: "The prospect of Trump wielding such power has helped lead me to rethink this issue."

  • PubliusVA||

    And as late as January 2016 he was citing the unitary executive theory in explaining why Obama's immigration policies deserve to prevail against legal challenges.

  • MonitorsMost||

    Someone needs to beat Professor Stone with a proverbial stick of he thinks Harry Blackmun was a "conservative Justice" while Sandra Day O'Connor and Anthony Kennedy were defectors who "insisted on judicial independence." The only thing I can figure is that he mixed up Rehnquist and Blackmun.

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