by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last week I quoted glowing endorsements of Supreme Court nominee Judge Kavanaugh by seven legal experts from across the ideological spectrum. Today, I want to add two more endorsements, one by a libertarian and one by a self-styled “liberal feminist.”
The libertarian is Randy Barnett, Carmack Waterhouse Professor of Legal Theory at Georgetown Law School and a leading exponent of the “original meaning” approach to statutory and constitutional interpretation. In a recent piece at the Volokh Conspiracy, he explains what this jurisprudential theory implies regarding the evaluation of judicial nominees:
I myself do not look for a libertarian judge. Instead, I look for a judge who (a) will seek to follow the original meaning of the text of the Constitution, (b) has the intestinal fortitude to invalidate the acts of the majoritarian branches, (c) understands that judges are agents of the people, to whom they owe a duty to hold the other branches within their constitutional powers. …
[W]hat matters for constitutional legitimacy is that a constitution establishes a law-making process by which laws imposed on the people are likely to be necessary and proper. A judicial branch that holds legislatures to the letter and spirit of the text of the Constitution will yield more “libertarian” results than “the constitution” now given us by the Supreme Court. So I just want judges who will consider such originalist arguments in good faith. That requires them to put interpretive “method” over their own political preferences, which I admit is very hard for everyone to do–myself included.
Barnett goes on to ask, “Is Brett Kavanaugh such a nominee?” To answer that question, he begins by noting
Some libertarians have been skeptical of this, and I have been spending a bit of time bringing myself up to speed on his record. There are a few sour notes … but on balance, his record is strong. He is pretty ardently committed to textualism … and the separation of powers. And he is skeptical about judicial deference to administrative agencies. He has a superb Second Amendment … in which he rejects the tiers of scrutiny approach that many circuits have been using to gut the Supreme Court’s decisions in Heller and McDonald. These are not just good, they are very good. …
Barnett adds, “I have been very impressed with Kavanaugh’s concern in his rulings for mens rea requirements and his skepticism of strict liability crimes–an important but underappreciated issue.” In answer to the question, “What’s not to like?” he says:
My [biggest] concern has been Kavanaugh’s reluctance to use the label “originalist” to describe himself. This goes to criterion (a) above. … On the other hand, he has not only written originalist opinions–for example in Heller 2–but his description of his own approach, which he has called “constitutional textualism” is indistinguishable from originalism. Indeed, the approach he has described is original public meaning originalism–(the very best kind of originalism!). …
The more I have studied Brett Kavanaugh’s record, the more I have warmed to this pick. Having three committed original public meaning originalists on the Court–a majority of the conservative majority–promises to transform the practice of law at the Supreme Court and create a ripple effect in inferior courts. This, in turn, may even lead law schools to accept they they have a responsibility to teach originalism to their students.
The liberal feminist whose opinion of Kavanaugh I want to share is Lisa Blatt. Ms. Blatt heads the Supreme Court practice at Arnold & Porter and is one of the country’s preeminent appellate lawyers. Last week she published an opinion piece on Politico subtitled, “Here’s Why Democrats Should Support Judge Kavanaugh.” She begins by noting:
Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh, who had long been considered the most qualified nominee for the Supreme Court if Republicans secured the White House. The Senate should confirm him.
I have argued 35 cases before the Supreme Court, more than any other woman. I worked in the Solicitor General’s Office for 13 years during the Clinton, Bush and Obama administrations. Because I am a liberal Democrat and feminist, I expect my friends on the left will criticize me for speaking up for Kavanaugh. But we all benefit from having smart, qualified and engaged judges on our highest court, regardless of the administration that nominates them. …
But … folks should stop pretending that Kavanaugh or his record is the issue. He is supremely qualified. Although this fact is distressing, Republicans control both the White House and Senate. In comparable circumstances, when President Barack Obama was in office, our party appointed two justices to the Supreme Court. …
Like Prof. Barnett, Ms. Blatt finds that Judge Kavanaugh easily meets her criteria for evaluating potential judges:
I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.
It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.
Democrats should quit attacking Kavanaugh—full stop. It is unbecoming to block him simply because they want to, and they risk alienating intelligent people who see the obvious: He is the most qualified conservative for the job.
She’s right about that, but I don’t expect many Democrats will take her advice. Since the President announced Kavanaugh’s nomination, the country has been subjected to a steady stream of over-the-top denunciations and jeremiads. Just this week the State Innovation Exchange announced that more than 300 state legislators had signed a letter opposing Kavanaugh’s nomination. Here’s an excerpt:
The reality is chilling: if conservatives have their way, the 1973 Roe v. Wade decision could be overturned and the legal status of abortion could be decided state by state, leaving millions of women to cross state lines in order to access legal abortion care. The risk of the Supreme Court of the United States taking us backwards by 45 years is more real than ever.
As state legislators, we recognize the extraordinary stakes of this generation-defining moment and we pledge to do everything we can to protect Roe v. Wade and legal abortion. We stand for reproductive freedom and we envision a nation in which each of us can make our own decisions about our reproductive health, pregnancy, and parenting, free from political interference. Therefore, we stand against the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court and for a new era in state-based efforts to champion policies that support meaningful access to reproductive health care.
These legislators know they can’t prevent Kavanaugh’s confirmation, and they know that, even if the U.S. Supreme Court were to modify its position on reproductive rights, abortion would continue to be freely available throughout most of the country. But it’s not about Brett Kavanaugh, and it’s not about Roe v. Wade. It’s about fundraising. It’s about getting out the vote. Above all, it’s about virtue signaling and the joyous expression of self-righteous indignation.