WSJ predicts Kavanaugh will lead the Court's right wing

[jserraglio]

The Wall Street Journal
Trump’s second nominee will be an intellectual leader on the bench.
by The Editorial Board

President Trump kept everyone guessing to the end about his Supreme Court selection Monday, but in nominating Brett Kavanaugh he also kept his promise to select a Justice “who will faithfully interpret the Constitution as written.” Judge Kavanaugh has an exemplary record that suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society.

Mr. Trump stressed the 53-year-old Judge Kavanaugh’s legal credentials Monday evening, and well he should. In 12 years on the D.C. Circuit Court of Appeals, he has written more than 300 opinions that span nearly every significant constitutional issue including the separation of powers and federalism. The Supreme Court has adopted the logic of 11 of his opinions in whole or part. He has the experience and intellect to be a leader on the Court, not merely a predictable vote on this or that issue.

In particular, Judge Kavanaugh is among a younger generation of judges who base their rulings on the text of the Constitution and Congressional statute. This method comes through clearly in many opinions, including a case (Heller v. D.C.) in which he rejected a balancing test for gun laws and said the Second Amendment requires an originalist historical inquiry.

Judge Kavanaugh has also been a leader on the appellate courts in challenging the Chevron doctrine of judicial deference to regulators. In U.S. Telecom Assn. v. FCC (2017) he concluded that the Obama Administration’s net neutrality rules flouted telecom law. He’s also held that regulators must consider the costs of their decisions (White Stallion Energyv. EPA).

His sterling dissents in Free Enterprise Fund v. PCAOB (2008) and PHH Corp. v. CFPB (2018) held that limits on the President’s ability to remove executive officers except “for cause” are unconstitutional. The Supreme Court adopted his dissent in Free Enterprise Fund.

Judge Kavanaugh has also demonstrated judicial modesty on foreign policy by upholding the executive’s collection of metadata and use of military commissions to prosecute enemy combatants. Democrats should note that Judge Kavanaugh has consistently demonstrated deference to the President’s core powers regardless of the White House occupant.

Judge Kavanaugh’s First Amendment jurisprudence also reflects a deep respect for the free exercise of religion and speech. In Priests for Life v. HHS, he concluded the Obama Administration’s rule requiring religious organizations to file forms facilitating contraception by third parties substantially burdened their exercise of religion since they had to act contrary to their sincere beliefs. He also extended speech rights to nonprofits’ political expenditures (Emily’s List v. FEC), which teed up the Supreme Court’s landmark SpeechNow and Citizens United rulings.

Given that this is the polarized America of 2018, Judge Kavanaugh’s confirmation will inevitably be a political brawl. Democrats can’t defeat his nomination alone, so they will deploy every tactic to frighten two or more Republicans to oppose him.

This will include demanding millions of documents from Mr. Kavanaugh’s tenure on the staff of special counsel Ken Starr in the 1990s. But Judiciary Chairman Chuck Grassley should resist this gambit as irrelevant to Judge Kavanaugh’s duties on the Court. We trust Republicans understand that if they don’t hold together to confirm Judge Kavanaugh, they will deserve to lose their majority in November. If they do stay united, they may persuade a couple of Democrats to vote to confirm him as well.

Democrats will also claim that a new conservative 5-4 majority will mean the rollback of American rights from abortion to voting. Don’t believe it.

The change we expect would be a Court that returned to the role it played before the 1960s when the Justices became an engine of progressive policy. The American left is distraught because it fears losing the Court as its preferred legislature. A conservative Court won’t overturn liberal precedents willy-nilly. But we hope it will be inclined to let most political questions be settled where they should be in a democracy—by the political branches.

This still preserves for the Court a large role in protecting fundamental rights and the structure of the separation of powers that is a bulwark against tyranny. The Court has become far too embroiled in politics, which has undermined public faith in the law and Constitution.

We firmly believe that liberals have much less to fear from a conservative majority than they imagine. A genuinely conservative Court might even help progressives by liberating them to focus once again on the core task of self-government—persuading their fellow Americans through elections, not judicial fiat.

Appeared in the July 10, 2018, print edition.

[jbuck919]

Prior to jserraglio's membership, we had an important member named Ralph Michael Stein. He was a distinguished person in constitutional law for reasons I will not now go into. Every time there was a Supreme Court vacancy, he would post, jokingly, "I'm available." The truth is that it takes almost nothing beyond a decent basic education to be eligible for such an appointment. It is all smoke and mirrors. It is impossible for anyone to be the "intellectual leader" of the right wing of SCOTUS, because there can be no intellectual justification for such a determination. What is happening is that once again a Star Chamber is being created to destroy everything standing in the way of our being an indecent nation. I don't know how my exact classmate Sonia Sotomayor avoids crying herself into her pillow every night.

[jserraglio]

Actually I remember Ralph well. The late Prof. Stein was hands-down the most brilliant person I never met. Learning what was on his mind on any given day was the main reason at the time that I even bothered to log in here. He and I had two things in common: born in the same year and emotionally attached to "paradise on earth".


Ralph Stein

[lennygoran]

Actually I remember Ralph well. The late Prof. Stein was hands-down the most brilliant person I never met. Learning what was on his mind on any given day was the main reason at the time that I even bothered to log in here. He and I had two things in common: born in the same year and emotionally attached to "paradise on earth".


Ralph Stein

I only met him once-right after I joined CMG a forum dinner was offered-I believe John B put it together-a place near the Time Warner Center-Gabriels-Sue and I were sitting at the same round table with him and it was a pleasure to converse and listen to him! Regards, Len

http://www.gabrielsnyc.com/

[jbuck919]

Actually I remember Ralph well. The late Prof. Stein was hands-down the most brilliant person I never met. Learning what was on his mind on any given day was the main reason at the time that I even bothered to log in here. He and I had two things in common: born in the same year and emotionally attached to "paradise on earth".


Ralph Stein

So sorry it was such a bother. I met Ralph in person no fewer than five times and was devastated when he died at only 69. BTW that means you must be well into your 70s and therefore presumably safe from the tempest whose clouds are already gathering, while I at 63 feel no such assurance. But then again, you have a family and I have none. And as for NYC, what is your attachment there and why do you then boast of living in Cleveland?

[jserraglio]

The main attraction for me about CMG was Ralph Stein, not the only one. I was likewise devastated by his death and had never even met him. His magnetism was transmitted via the written word.

After spending many weekends commuting to Manhattan, I fell in love (as folks do), tied the knot in NY City Hall and then lived in Manhattan full time for about a year. But strangely, even though he was a longtime resident and I had long since departed, I had experienced nearly everything Ralph said in praise of the City. At the time, I was totally unprepared for Manhattan's openness and friendliness after experiencing New Englanderish outright bigotry cleverly masked by cerebration. I still love the five boroughs, all of which except Staten Island I frequented back then. As for Cleveland, I suffer from Nick-Carraway homesickness for the Northwest Territory where my roots are.

The gathering tempest, I fear, may be a civil war. In that event, I plan on joining the Roundheads of the Northern Ohio Army of the Connecticut Western Reserve under General John Kasich and do battle with Ungentle Jim Jordan's Red-Hat Cavaliers. By then, Ohio will have been split in two like Virginia.

As for longevity, sorry to disappoint, but I can't check out just yet, my mother needs looking after as she turns 99 tomorrow on what would have been Prof. Stein's 75th birthday. She still insists I dress better, grow out my hair and shave my stubble when she trundles me off to school.

[jbuck919]

As for longevity, sorry to disappoint, but I can't check out just yet, my mother needs looking after as she turns 99 tomorrow on what would have been Prof. Stein's 75th birthday. She still insists I dress better, grow out my hair and shave my stubble when she trundles me off to school.

You do not disappoint, and thank you for reminding us that Ralph was born on Bastille Day, a fact which was another point of jokery for him. (Unfortunately, he was serious about liking Karl Ditters von Dittersdorf.) As for your mother, may she be well, for I also tended to my mother who died four years ago at 93. Young, you say? Well the difference in age between her and me was 34 years. That was a big deal by the standards of the 1950s.