Yesterday evening, President Trump announced that D.C. Circuit Judge Brett Kavanaugh is his nominee to be the next Associate Justice on the U.S. Supreme Court. During his speech in the nomination announcement, Judge Kavanaugh described his judicial philosophy.
Judge Kavanaugh's Jurisprudence
- Introduction to Judge Kavanaugh's judicial record, by Ed Whelan
- Wall Street Journal's Editorial Board: "A Justice with a Record"
- Brett Kavanaugh Said Obamacare Was Unprecedented And Unlawful (Prof. Justin Walker)
- Judge Kavanaugh: Interpretive Principles as a Way of Life (Prof. Jennifer Mascott)
- Rejects Agency Overreach
- Judge Kavanaugh’s Record Against the Administrative State (Ed Whelan)
- Cabining the Chevron Doctrine the Kavanaugh Way (Prof. Jeffrey Pojanowski)
- Judge Kavanaugh has overruled federal agency action 75 times.
- In White Stallion Energy Center LLC v. EPA, Judge Kavanaugh rejected EPA’s efforts to impose massive emissions regulations without considering costs. In a 5-4 decision authored by Justice Scalia, the Supreme Court agreed.
- In Coalition for Responsible Regulation v. EPA, Judge Kavanaugh argued in dissent from denial of rehearing en banc that the Obama EPA’s burdensome greenhouse gas regulations for power plants exceeded its authority and that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.” In a decision authored by Justice Scalia, the Supreme Court agreed.
- In EME Homer City Generation v. EPA, Judge Kavanaugh held that the Obama EPA’s crossstate air pollution rule was unlawful and imposed excessive regulatory burdens on the states.
- Respects First Amendment Rights
- Institute for Free Speech's analysis of Judge Kavanaugh's First Amendment jurisprudence: Part 1 (campaign finance), Part 2 (campaign finance), Part 3 (pro-speech opinion on protesters' rights), and Part 4 (pro-speech dissents in Communications Act cases)
- In U.S. Telecom Ass’n v. FCC, Judge Kavanaugh dissented from denial of rehearing en banc in a case upholding net neutrality. Judge Kavanaugh argued that the net neutrality rule exceeded the FCC’s authority and violated the First Amendment, arguing that “the Government must keep its hands off the editorial decisions of Internet service providers.”
- In Emily’s List v. FEC, Judge Kavanaugh struck down FEC regulations that limited independent political spending by non-profit organizations, ruling that the regulations violated the First Amendment “right of citizens to band together and pool their resources . . . in order to express their views about policy issues and candidates.”
- Mandates Accountability for Independent Agencies
- In PHH Corp. v. CFPB, Judge Kavanaugh concluded that the structure of the CFPB—whose single director wields massive power but cannot be removed by the President except for cause—impermissibly invades the President’s power to supervise the Executive Branch. He noted that independent agencies “pose a significant threat to individual liberty and to the constitutional system of separation of powers.”
- In Free Enterprise Fund v. PCAOB, Judge Kavanaugh concluded that provisions of the Sarbanes-Oxley Act insulating the PCAOB from presidential control by making its members removable for cause only by the SEC violated the Constitution. In a 5-4 opinion written by Chief Justice Roberts, the Supreme Court agreed.
Judge Kavanaugh is the single most qualified person in the country to serve on the Supreme Court. His credentials are impeccable. He currently sits on the D.C. Circuit—the “Second Highest Court in the Land”—and serves as the Samuel Williston Lecturer in Law at Harvard Law School. He graduated from Yale Law School and clerked for Justice Kennedy.
Judge Kavanaugh has a proven track record as the type of jurist that President Trump has promised to put on the Supreme Court. With over 300 published opinions, what you see is what you get: a judge who will apply the law as written and enforce the text, structure, and original understanding of the Constitution.
Judge Kavanaugh’s respect for people threatened by government overreach has demonstrated itself again and again, and he has often rejected attempts by the federal government to impose onerous regulations on private citizens.
Judge Kavanaugh is a true “judge’s judge.” He’s a thought-leader among his peers on the appellate courts and deeply respected by the Supreme Court. The Supreme Court has endorsed his opinions more than a dozen times, including Kavanaugh dissents that have become the law of the land. His opinions are regularly cited by courts across the country. Of his 48 clerks, 39 have gone on to clerk at the Supreme Court. And one of his clerks (Britt Grant) is even on the President’s list of potential Supreme Court nominees.
Judge Kavanaugh is active in his community. He coaches CYO (Catholic Youth Organization) basketball, acts as a reader at his church, serves meals to needy families, and tutors children at local elementary schools.
Reactions to This Excellent Nomination
- The RNLA's press release.
- WHAT THEY ARE SAYING: Judge Kavanaugh’s Record On The Bench “Noteworthy For Its Skill And Conservatism” And “Pragmatic Approach”
- Senate Majority Leader Mitch McConnell:
I look forward to meeting with Judge Kavanaugh and to the Senate’s fair consideration of his nomination, beginning with the work of Chairman Grassley and the Judiciary Committee. This is an opportunity for Senators to put partisanship aside and consider his legal qualifications with the fairness, respect, and seriousness that a Supreme Court nomination ought to command.
President Trump has made an excellent choice in nominating Judge Kavanaugh to the Supreme Court. He has impressive credentials, and I look forward to meeting with him to further consider his qualifications and commitment to upholding our Constitution as it is written. This nomination is one of the most important items that we will consider this year. I am hopeful that Judge Kavanaugh’s confirmation process will be fair and timely.
Esteemed by his colleagues, faithful to the Constitution, a record of thoughtful decisions, and already confirmed for the DC Circuit; Brett Kavanaugh has the right stuff.
- "A Liberal’s Case for Brett Kavanaugh," The New York Times by Yale Law Professor Akhil Reed Amar:
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.
The RNLA looks forward to the Senate's careful consideration of Judge Kavanaugh's extensive record and prompt confirmation of this extremely qualified nominee. While the Democrats were engaging in character assassination against the nominee before his name was known, they cannot attack Judge Kavanaugh's impeccable credentials.
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(This post will be updated. Last update: 7/10/2018 at 9:00 AM.)