A conservative makes the case for Judge Kavanaugh

[jserraglio]

WSJ Opinion by J.D. Vance — What should President Trump look for in a Supreme Court nominee? Exactly what he did with his selection of Justice Neil Gorsuch and his slate of lower-court nominees. He should ask one question: Who is best at being a judge, as demonstrated by a consistent record of applying textualist and originalist reasoning to significant legal questions? Given the reported options Mr. Trump is now considering, the answer is obvious: Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.

I’ve known Judge Kavanaugh since 2011, when I was a law student at Yale. He taught a foreign-policy seminar that year, and what most impressed me was his willingness to defend himself and his principles in an ideologically hostile environment. For a conservative finding my way in an institution where I was heavily outnumbered, Judge Kavanaugh’s mentorship and example were invaluable. A few years later, he hired my wife as a law clerk. So I’m personally a proud Kavanaugh partisan.

That said, his qualifications stand on their own. First, he has the necessary intellectual commitments. 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. 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. Consider his 2008 dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board, arguing that an administrative agency violated the separation of powers. In 2010 the Supreme Court agreed with Judge Kavanaugh, in a 5-4 opinion written by Chief Justice John Roberts. Judge Kavanaugh’s PCAOB opinion also served as a foundation for his recent opinions in PHH v. Consumer Financial Protection Bureau, in which he made a similar case against Elizabeth Warren’s brainchild, the CFPB.

By my count, Judge Kavanaugh’s opinions have been adopted by the justices 11 times—a record of influence and persuasion that suggests he would be effective on the still-divided high court. His influence has been especially notable in cases involving overreach by regulatory agencies. In two different Environmental Protection Agency cases, each involving billions of dollars in regulatory burdens, the Supreme Court adopted Judge Kavanaugh’s dissenting views in 5-4 decisions by the late Justice Antonin Scalia. Judge Kavanaugh’s reasoning in another case, Doe v. Exxon, informed two separate Supreme Court decisions, Jesner v. Arab Bank and Kiobel v. Royal Dutch Petroleum.

His judicial record spans just about every important area of the law, and conservatives should be happy with the results. He sided with the Trump administration in rejecting the American Civil Liberties Union’s demand that the government facilitate an immediate abortion for an illegal-alien teenager in federal custody. He rejected the Obama administration’s attempt to coerce religious groups to provide contraception to employees. He stood by Scalia’s strong originalist interpretation of the Second Amendment and rejected balancing tests designed to undermine the right to keep and bear arms. He upheld labeling requirements on foreign-made products designed to protect American manufacturers and farmers. He has protected police officers acting in good faith against unwarranted damage verdicts, most recently in a case in which the Supreme Court vindicated his position in a 9-0 opinion by Justice Clarence Thomas.

A Justice Kavanaugh could also be influential beyond the bench. Like a lot of conservative law students, I acquired my conservative constitutionalism after reading Justices Scalia and Thomas rebut their more progressive colleagues. The conservatives simply have the better of the argument, I often thought. Persuasive power requires not only sound principles but intellectual strength, rhetorical skill, and a willingness to engage with an opponent’s best arguments. From the way he worked in the classroom to his 12 years on the D.C. Circuit, Judge Kavanaugh regularly reveals those qualities.

The through line in Judge Kavanaugh’s jurisprudence is his capable and committed defense of the Constitution and other laws—as written. His 12-year record is one of consistent textualist and originalist jurisprudence. Records can be dangerous in court confirmations, and partisan politics offer the temptation to avoid nominees with long paper trails.

Fealty to principle sometimes requires setting aside one’s own preferences. Judge Kavanaugh has come under fire in some quarters of the right for a handful of opinions—notably two involving challenges against ObamaCare—in which he aimed to rule narrowly and fairly rather than politically. In one, he dissented from an opinion that upheld the individual mandate. He observed that the individual mandate “is unprecedented in American history” and cast doubt on its validity under either the Commerce or Taxing clause. In another, he rejected what the conservative scholar Ed Whelan calls “a very adventuresome Origination Clause challenge.”

Judge Kavanaugh’s record shows him to be a jurist who adheres to his principles and can influence his future colleagues on the bench. He is the most qualified candidate by all the criteria that matter. On top of that, he is a good and decent man of integrity. He would be a worthy Supreme Court justice.

Mr. Vance is author of “Hillbilly Elegy: A Memoir of a Family and a Culture in Crisis.”

[jbuck919]

Your penchant for recently quoting articles from the Wall Street Journal, a notorious Murdoch publication only an inch of literacy removed from Fox News, does you no credit unless you are testing us for noticing that you are doing so. The argument that "he is bright" has been used to defend every nominee for the Supreme Court in the last century. Having been editor of the law journal at Harvard or whatever does not matter. People put into power who make rapaciously anti-progressive decisions that affect us for generations are what matters. I also know how to make the worse sound like the better case because I have an advanced education. It avails me nothing if I am not the choice of a chump like Trump.

[Belle]

Your penchant for recently quoting articles from the Wall Street Journal, a notorious Murdoch publication only an inch of literacy removed from Fox News, does you no credit unless you are testing us for noticing that you are doing so. The argument that "he is bright" has been used to defend every nominee for the Supreme Court in the last century. Having been editor of the law journal at Harvard or whatever does not matter. People put into power who make rapaciously anti-progressive decisions that affect us for generations are what matters. I also know how to make the worse sound like the better case because I have an advanced education. It avails me nothing if I am not the choice of a chump like Trump.

It has recently been said by a well-known public intellectual and clinical psychologist that if we continue reading the same source material we are only reading what we already know - we aren't learning anything new. An insightful tip.

I bought that book "Hillbilly Elegy" for my son for Christmas last year, js.

[jserraglio]

Your penchant for recently quoting articles from the Wall Street Journal, a notorious Murdoch publication only an inch of literacy removed from Fox News, does you no credit

Thanks for your ad hominem concern, but I am not in need of credit of any sort from persons of any kind at this time.

[lennygoran]

CNN-especially Wolf-MSNBC-Lawrence and Brian Williams-okay, Rachel too! Len