Brett Kavanaugh is a highly qualified “originalist” who will help return the Supreme Court to its proper function in American society. The Senate should quickly confirm him.
Judge Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia, the nation’s top appellate court, fits President Donald Trump’s promise to appoint judges known to adhere strictly to the original language of the Constitution and its amendments, and to closely follow the law as laid down by Congress.
That does not mean one can safely predict how he will rule in cases where there are clear political differences. But his rulings show a steady impartiality in applying the law as he sees it.
For example, he has ruled in favor of the Affordable Care Act, a major legacy of the Obama presidency. But he also chided President Obama’s attempt to kill the Yucca Mountain nuclear waste repository in Nevada by stopping a review of the proposal mandated by Congress.
“The president may not decline to follow a statutory mandate or prohibition simply because of policy objections,” he wrote in an opinion for the D.C. Court of Appeals finding for the plaintiffs including the state of South Carolina.
He also chided Congress in rejecting a law establishing the Public Company Accounting Oversight Board because it sheltered the agency from political accountability. His view in a 2008 case dissented from a majority ruling of the appeals court, but the Supreme Court upheld his reasoning in overturning the lower court’s decision.
As a federal judge, Mr. Kavanaugh appears to have taken the orthodox conservative view that Congress is the preeminent policy-making body of the federal government except where the Constitution gives policy-making powers to the executive; that Congress, the executive branch and the judiciary are all bound by the Constitution as it has been interpreted over time, leaning in the direction of original meanings and precision; and that judges and the president are further bound by the permissible decisions of Congress.
It would be a welcome change to see the court allow the political branches of government to decide most political questions rather than the court.
Mr. Kavanaugh has not taken a doctrinaire position for or against the principle of legal precedent, an issue of great concern to those who fear that the Supreme Court might some day overrule Roe v. Wade, its 1973 decision that legalized abortion. Instead, in “The Law of Judicial Precedent” he joined a number of other distinguished legal experts and judges, including now-Justice Neil Gorsuch, in describing in great detail the legal reasoning that must be followed in deciding if there is a conflict between a legal precedent and the facts of a particular case.
One area of controversy where Judge Kavanaugh has expressed disagreement with current precedent concerns the doctrine of deference by the courts to the rulings of independent federal agencies.
If his nomination is approved, he would join Justice Gorsuch as a second vote against rigid adherence to the precedent known as Chevron deference, a reference to a 1984 Supreme Court decision that said agencies may make decisions in areas not expressly assigned to them by Congress if the agency’s ruling is based on what the Supreme Court called a “permissible construction” of the law.
A different ruling that held that in such gray areas Congress, not the agency, has the last voice would make it easier to sue federal agencies, such as the Environmental Protection Agency, if plaintiffs think they are guilty of overreaching.
Senate Democrats can find lots of political reasons to oppose Judge Kavanaugh. After clerking on the Supreme Court for Justice Anthony Kennedy, whom he would replace, he was a member of the independent counsel investigation of Democratic President Bill Clinton headed by Kenneth Starr and then joined the White House of Republican President George W. Bush, where he served as staff secretary.
Except for the possibility that his views on Chevron deference alarm legislators who think Congress should be allowed to write blank checks to federal agencies, opponents will find it hard to argue against him on his track record as a judge. This should be a quick and easy decision for the Senate.