by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
When President Trump nominated Neil Gorsuch to the U.S. Supreme Court, I was thrilled. I had read and admired his opinions for years, and, when people asked me what I thought about the nomination, I was able to confidently predict that Judge Gorsuch would be a worthy successor to Justice Antonin Scalia.
When people ask me about President Trump’s latest Supreme Court nominee, Brett Kavanaugh, on the other hand, all I can do is admit to ignorance. I’m not familiar with his work at the U.S. Court of Appeals for the D.C. Circuit, and I haven’t had time to study it. What I can say, however, is that many people whose opinions I trust are pleased with the nomination and think Judge Kavanaugh will be a valuable addition to the court.
In a New York Times opinion piece, Jonathan Adler (Johan Verheij Memorial Professor of Law, Case Western Reserve) says:
For years, Judge Kavanaugh has toiled in the vineyards of administrative law, writing highly influential opinions on regulatory matters and demonstrating a willingness to discipline federal agencies when they go astray.
For the past 12 years, Judge Kavanaugh has sat on the United States Court of Appeals for the District of Columbia Circuit. That court … hears many legal challenges to major federal regulations. … Of Judge Kavanaugh’s nearly 300 opinions as a federal judge, over one-third concern administrative law — and they are quite revealing.
Judge Kavanaugh’s opinions in these cases show someone who takes administrative law principles to heart. Federal regulatory agencies are not provided for in the Constitution. Instead, agencies get their power from Congress. Statutes authorize agencies to promulgate and enforce regulatory measures and detail the steps agencies must follow when adopting rules. For an agency action to be lawful, it must be done in line with an act of Congress and in accordance with the Administrative Procedure Act and other rules of administrative law. As Judge Kavanaugh explained in one opinion, “policy is for Congress and the president to establish as they see fit in enacting statutes,” adding that the judiciary’s “more modest task” is to ensure that “agencies comply with the law as it has been set by Congress.” …
Judge Kavanaugh … questions whether federal agencies have followed the relevant requirements and acted within the scope of their delegated authority. Where agencies come up short, he is not one to give them a pass.
At City Journal, James Copland (Senior Fellow, Manhattan Institute) writes:
[W]hat has me most excited about his nomination is his willingness to challenge the administrative state, in a host of published judicial opinions. Judge Kavanaugh has embraced a vigorous application of the “major rules” doctrine requiring clear Congressional enactments, not agency determinations, on questions of deep economic and political significance.
In the same post, Jim’s colleague Rafael Mangual (Deputy Director of Legal Policy, Manhattan Institute) adds:
Judge Kavanaugh’s … record is solidly conservative on a host of issues from the Second Amendment (dissenting from an opinion that upheld D.C.’s assault weapons ban in 2011) to campaign finance (holding in 2009 that new Federal Election Commission rules restricting non-profit fundraising violated the First Amendment). Perhaps most interesting is his commitment to mens rea, Latin for “guilty mind.” In U.S. v. Burwell, Kavanaugh dissented from the D.C. Circuit majority opinion, which upheld a conviction based on the use of an automatic weapon despite the defendant’s sincere belief that the firearm was a semi-automatic. Such a disposition in criminal cases should delight many criminal justice reformers who have long cited the erosion of mens rea as a key element of the broader overcriminalization problem.
At Overlawyered, Walter Olson (Senior Fellow, Cato Institute) says:
Brett Kavanaugh is a stellar pick, whose name would have been at or near the top of any list of outstanding Republican nominees for the high court. As a longtime judge on the D.C. Circuit he has authored nearly 300 opinions, many in big cases hinging on constitutional issues such as the allocation of powers. … [H]is decisions on the appeals court have fared exceptionally well on review by the higher court and are often cited as authority there, and he acts as a “feeder judge” sending clerks to Justices across the Court’s ideological spectrum. His qualities of temperament and character are widely respected on all sides, and he is known for advancing diversity among the influential ranks of Supreme Court clerks by recruiting law graduates from many backgrounds.
In a long and thoughtful piece at the Federalist, Ilya Shapiro (Senior Fellow in Constitutional Studies, Cato Institute) reassures libertarians who worry about Kavanaugh’s record on 4th Amendment rights, including the right to privacy:
Kavanaugh takes an originalist and textualist approach to the powers asserted and statutes at issue, rather than blindly deferring to the executive as many judges might.
Even more importantly, … Kavanaugh has displayed a strong, if limited, Fourth Amendment record. …
[I]n United States v. Moore (2011), Kavanaugh found that a criminal defendant’s Confrontation Clause rights had been violated when the government introduced Drug Enforcement Agency reports at trial without allowing the defendant to confront the report’s author. In United States v. Nwoye (2016), he reversed the denial of a defendant’s ineffective-assistance-of-counsel claim in a case where her lawyer had failed to present expert testimony on battered-woman syndrome.
Kavanaugh has also been a leading advocate of interpreting statutes to incorporate robust mens rea requirements, protecting individuals from criminal sanction unless the government establishes a “guilty mind.” See for example … his concurrence in United States v. Williams (2016), where he commended a majority opinion that reversed the conviction of a gang member involved in a hazing ritual “to underscore the critical importance of accurate instructions to the jury on mens rea requirements.”
So too in white-collar cases, where regulatory “crimes” have ballooned in recent years. In Lorenzo v. SEC (2017), Kavanaugh dissented from a decision upholding the Securities and Exchange Commission’s broad theory of liability in enforcing fraud laws against a broker who transmitted a fraudulent statement dictated by his boss. …
All this goes without mentioning other issues … ranging from the Second Amendment—he would’ve struck down DC’s gun-registration requirement and ban on semi-automatic rifles, using an historical rather than a “tiers of scrutiny” approach—to a skepticism of broad judicial deference … to executive agencies. As he repeated at his nomination ceremony, “the Constitution’s separation of powers protects individual liberty.”
In sum, libertarians aren’t going to agree with Kavanaugh on everything—we don’t agree on everything ourselves!—but he’s a big step forward for constitutional liberty.
And it isn’t just conservatives and libertarian scholars who are happy about Kavanaugh’s nomination. In a recent blog post, free speech zealot Ken White provides an exhaustive analysis of Kavanaugh’s record on freedom of speech and concludes:
Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court’s strong protection of free speech rights this century. … [H]e has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he’s also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He’s quoted First Amendment guru Eugene Volokh — one of the leading voices in free speech analysis and a strong defender of speech rights.
Finally, in another New York Times opinion piece, Akhil Reed Amar (Sterling Professor of Law and Political Science, Yale University) makes, “A Liberal’s Case for Brett Kavanaugh”:
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.
Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues. Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions. …
Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. …
This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own. …
A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.
Amar goes on to discuss the upcoming confirmation process, saying:
Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.
This would be a mistake. Judge Kavanaugh is … a superb nominee. …
[T]he current confirmation process is badly broken, alternating between rubber stamps and witch hunts. … [If] each constitutional actor [were] to once again play its proper constitutional role: The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill. And equally important: Judge Kavanaugh could be confirmed with the ninetysomething Senate votes he deserves, rather than the fiftysomething votes he is likely to get.
Professor Amar knows that’s wishful thinking, but it does show how strongly he supports Judge Kavanaugh’s nomination. Taking his and all the other endorsements into consideration, I’m inclined to strongly support it too.