Never in American history has the Left been so politically incensed at the nomination of any judge to the U.S. Supreme Court. On Monday evening, President Trump nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy — a moderate and often considered the “swing vote” on the High Court.
The rhetoric immediately turned to venom against the 12-year member of the D.C. Circuit Court of Appeals. This began long before his nomination was announced and obviously was NOT because of his specific selection, but because of one thing only: he is considered by most to be a conservative. Let’s be honest: it ramped up because he is NOT an extremist from the Left.
Apparently, all civility in American politics is in our past. The streets around the U.S. Supreme Court were packed with demonstrators long before the President announced the nomination of Kavanaugh. Demonstrators waved signs and chanted angrily at the thought of ANY Trump nomination to the Court. It being Kavanaugh mattered little to most. Pre-made protest signs were everywhere with a space to write-in the name of whoever Trump’s nominee was when announced. Several protestors forgot to write the name “Kavanaugh” when his nomination was announced and waved the signs with “XX” where the name was meant to be added.
Before we discuss the hoopla and crazed idiocy front-and-center from the Left, why not talk about the nominee, his judicial past, and his qualifications to serve on the High Court? (Gee, that’s somehow a novel idea, right!?!?)
In his own words:
Judge Brett Kavanaugh
J.D. Vance, who wrote the best-selling Hillbilly Elegy, recently took to the pages of the Wall Street Journal to make the case for Kavanaugh, who was one of his professors at Yale Law School.
“He is a committed textualist and originalist, one whose time on the bench has revealed a unique ability to apply these principles to legal facts,” Vance wrote. “He deeply believes in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty. From the start of his career, he’s applied the Constitution faithfully, even when that made him a lonely voice. He has done so with particular tenacity on the issue that matters most to the president: taking power away from unelected bureaucrats and returning it to elected officials.”
Kavanaugh has stated that he considers Roe v. Wade binding under the principle of stare decisis and would seek to uphold it, but has also ruled in favor of some restrictions for abortion. In May 2006, Kavanaugh stated he “would follow Roe v. Wade faithfully and fully” and that the issue of the legality of abortion has already “been decided by the Supreme Court”. During the hearing, he stated that a right to an abortion has been found “many times”, citing Planned Parenthood v. Casey.
In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting. The D.C. Circuit’s opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).
Affordable Care Act
In November 2011, Kavanaugh dissented when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case. After a unanimous panel found that the ACA did not violate the Constitution’s Origination Clause in Sissel v. United States Department of Health & Human Services (2014), Kavanaugh wrote a lengthy dissent from the denial of rehearing en banc.
Economics and environmental regulation
In 2014, Kavanaugh concurred in the judgment when the en banc D.C. Circuit found that the Free Speech Clause did not forbid the government from requiring meatpackers to include a country of origin label on their products.
After Kavanaugh wrote for a divided panel striking down a Clean Air Act regulation, the Supreme Court of the United States reversed 6–2 in EPA v. EME Homer City Generation, L.P. (2014). Kavanaugh dissented from the denial of rehearing en banc of a unanimous panel opinion upholding the agency’s regulation of greenhouse gas emissions and a fractured Supreme Court reversed 5 to 4 in Utility Air Regulatory Group v. Environmental Protection Agency (2014). After Judge Kavanaugh dissented from a per curiam decision allowing the agency to disregard cost–benefit analysis, the Supreme Court reversed 5–4 in Michigan v. EPA (2015).
In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design. In October 2016, Kavanaugh wrote for a divided panel finding that the CFPB’s design was unconstitutional, and made the CFPB Director removable by the President of the United States. In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.
In 2014, Kavanaugh concurred in the judgment when the en banc circuit found that Ali al-Bahlul could be retroactively convicted of war crimes, provided existing statute already made it a crime “because it does not alter the definition of the crime, the defenses or the punishment.” In October 2016, Kavanaugh wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if his offenses are not internationally recognized as war crimes under the law of war.
In Meshal v. Higgenbotham (2016), Kavanaugh concurred when the divided panel threw out a claim by an American that he had been disappeared by the FBI in a Kenyan black site.
In 2009, Kavanaugh wrote an article for the Minnesota Law Review where he argued that U.S. Presidents should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.” This article garnered attention in 2018 when Kavanaugh was nominated to the Supreme Court by President Donald Trump, whose 2016 presidential campaign is the subject of an ongoing federal probe by Special Counsel Robert Mueller.
When reviewing a book on statutory interpretation by Second Circuit Chief Judge Robert Katzmann, Kavanaugh observed that judges often cannot agree on a statute if its text is ambiguous. To remedy this, Kavanaugh encouraged judges to first seek the “best reading” of the statute, through “interpreting the words of the statute” as well as the context of the statute as a whole, and only then apply other interpretive techniques that may justify an interpretation that differs from the “best meaning” such as constitutional avoidance, legislative history, and Chevron deference.