Not since Warren Harding in 1921 nominated former President William Howard Taft to be chief justice has the country been presented with a high court nominee so completely shaped by the needs and mores of the executive branch as Brett Kavanaugh, unveiled Monday night as President Donald Trump’s nominee to replace Justice Anthony Kennedy.
Though Kavanaugh served as Kennedy’s law clerk during the October 1993 term, the contrast between the two men could hardly be more complete. Kennedy’s roots lay in his days of small-town private practice; he made his way to the bench from private practice, and, as a judge, he was conservative but independent. Kavanaugh has been the creature and servant of political power all his days. It would be the height of folly to expect that, having attained his lifetime’s ambition of a seat on the Supreme Court, he will become anything else.
A product of the District and its affluent Maryland suburbs, Kavanaugh attended Georgetown Prep with another D.C. princeling, Neil Gorsuch. He went on to Yale College and Yale Law School. He and Gorsuch served together as law clerks for Kennedy; Kavanaugh worked for President George H.W. Bush’s Solicitor General, Kenneth Starr, then, after Bush left office, worked with then-Independent Counsel Starr investigating the Clinton White House. In 2001, Kavanaugh went to the White House himself to serve George W. Bush, first in his legal counsel’s office and then, for five years, as his staff secretary, ensuring a smooth flow of paper among the president and his aides. While in the White House, he married another Bush retainer, Ashley Estes, who had served for nearly a decade as Bush’s personal secretary. Bush originally named Kavanaugh to the Court of Appeals for the District of Columbia Circuit in 2003, though Democratic opposition delayed his confirmation until 2006.
Much will be made of the nominee’s deep religious faith and his many charitable works. He certainly appears to be a man of large intellect and sterling character. But this assiduous courtier’s brilliant career has seldom been even momentarily exposed to the world beyond the Washington Beltway, in which most Americans live with the decisions made inside it. Indeed, Kavanaugh’s strong Washington identity may have been the reason his name did not appear on candidate Trump’s initial short list of court picks before the 2016 election; Kavanaugh surfaced as a possible court pick only long after the voters had picked Trump to “drain the swamp.”
After Kennedy announced his departure, some in conservative circles expressed unease with the idea of a Justice Kavanaugh. They noted that Kavanaugh temporized during the Affordable Care Act litigation, arguing that the challenge was premature; he refused to adopt the harshest possible anti-abortion position during Hargan v. Garza, a case testing whether a teenaged woman held in immigration detention could leave lockup to have an abortion. (Kavanaugh wrote that the woman was wrongly asserting “an immediate right to abortion on demand”—not that she had no right to choose abortion at all.) These quibbles are a textbook illustration of what Sigmund Freud once called “the narcissism of minor differences.” There is no reason to believe that, on issues ranging from health care to consumer and labor rights to the Second Amendment, Kavanaugh’s votes and opinions will be anything but reliably conservative—clothed at times, perhaps, in soothing rhetoric, but more consistent, and more conservative, than Kennedy’s.
Kavanaugh seems most likely to make his mark are in two areas important to Washingtonians—executive authority and administrative law. As befits an executive creature, Kavanaugh’s decisions incline toward the “unitary executive” view of presidential power, which holds that Congress cannot set up federal agencies that are not under the direction and control of the president. In administrative law, he argues that federal judges should displace specialized agencies in setting regulatory policy. Under a current doctrine called Chevron, agencies interpret the statutes under which they operate. When those interpretations are challenged in court, federal judges ask whether the statute is “ambiguous”—capable of two or more readings. If so, the judges must ask whether the agency’s interpretation is “reasonable”; if so, the courts “defer” to the agency’s reading.
Kavanaugh rejects this approach; he argues that “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” Instead, he wrote in Harvard Law Review,“courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons.” Yet from what I can tell, that “best reading” is no more determinate than is “ambiguity”; indeed, it sounds to me a lot like “the judge’s view of best policy.”
One could imagine, of course, that Kavanaugh’s experience pursuing wrongdoing in the Clinton White House might incline him to a jaundiced view of presidents generally, thus offering a hope that, on the bench, he will be independent of the president who appointed him. But in a 2009 article in Minnesota Law Review, Kavanaugh, by then a life-tenured judge, announced that the independent-counsel investigation in which he served had been a mistake after all: “[T]he nation certainly would have been better off if President Clinton could have focused on Osama Bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” He suggested instead that Congress should, by statute, simply provide that a sitting president could neither be sued, indicted, tried, investigated or even questioned by prosecutors while in office. Problem solved.
No doubt that position was agreeable to Trump and those around him.
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