Was Kavanaugh Best Choice Trump Could Have Made?

COMMENTARY Courts

Was Kavanaugh Best Choice Trump Could Have Made?

Jul 16, 2018 2 min read
COMMENTARY BY

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.
Supreme Court nominee judge Brett Kavanaugh arrives prior to meeting with Senate Majority Leader Mitch McConnell on Capitol Hill. Joshua Roberts/REUTERS/Newscom

Key Takeaways

Kavanaugh’s record and background show he will be a fair, impartial and principled justice — and that’s precisely what our nation needs.

As a judge on a court dominated by Democratic appointees, Kavanaugh is often in the minority, issuing powerful dissents that the Supreme Court has often cited.

He strives to interpret the law and provisions by their text and original public meaning, and above all strives to be a faithful servant to the Constitution.

What can we expect of Brett Kavanaugh if he’s confirmed as Justice Anthony Kennedy’s successor on the Supreme Court?

Kavanaugh’s record and background show he will be a fair, impartial and principled justice — and that’s precisely what our nation needs.

A graduate of Yale College and Yale Law School and former law clerk to Justice Kennedy, Kavanaugh has served for the last 12 years on the U.S. Court of Appeals for the D.C. Circuit.

On this court, Kavanaugh has tackled weighty issues from the First Amendment’s ban on the establishment of a particular religion by Congress and the Second Amendment’s guarantee of a right to bear arms to the constitutionality of administrative agencies such as the Public Company Accounting Oversight Board and the Consumer Financial Protection Bureau.

A “judge’s judge,” as President Donald Trump called him, Kavanaugh’s record shows a commitment to interpreting laws according to their text. He’s written that “the text of the law is the law” and explained that judges may not “rewrite statutory text simply because we might think it should be updated.”

Kavanaugh is regarded as “one of the finest and sharpest legal minds of our time,” Trump said.

Indeed, in addition to writing more than 300 opinions on the appeals court, he speaks and writes often about the separation of powers, agency deference and statutory interpretation. He also co-authored a book on the topic of precedent along with Bryan Garner and 11 other judges, including then-Judge Neil Gorsuch.

As a judge on a court dominated by Democratic appointees, Kavanaugh is often in the minority, issuing powerful dissents that the Supreme Court has cited in several cases.

For example, a 2014 case looked at whether the Environmental Protection Agency could ignore cost-benefit analysis when considering a proposed hazardous air pollutants rule that would cost power plants an estimated $9.6 billion a year for a societal benefit amounting to no more than $6 million a year.

The D.C. Circuit deferred to the agency’s interpretation of the law. But Kavanaugh wrote a separate opinion noting it was “entirely unreasonable for EPA to exclude consideration of costs,” under the relevant statute. Two years later, the Supreme Court agreed with Kavanaugh’s criticisms and reversed the decision.

In a 2008 case, the D.C. Circuit dealt with the structure of the Public Company Accounting Oversight Board. Congress had created it by statute and then insulated its board members from presidential control by having them appointed and removable only for cause by members of the Securities and Exchange Commission.

Kavanaugh dissented from his court’s ruling that this arrangement was constitutional. He wrote that the dual protection clause would “eliminate any meaningful Presidential control” and noted that the president’s removal power is “critical” for him to “perform his Article II responsibilities.” The Supreme Court agreed with Kavanaugh.

In a 2017 speech at Notre Dame Law School, Kavanaugh declared the “structural provisions of the Constitution,” including the separation of powers, “are not mere matters of etiquette or architecture.” They are “essential to protecting individual liberty.” Courts, he said, have a “critical role...in enforcing those separation of powers and federalism limits.”

Kavanaugh is a judge who understands that he has an important but limited role in our system of government. That’s why he strives to interpret the law and constitutional provisions by their text and original public meaning, and above all strives to be a faithful servant to the Constitution.

That’s exactly what our country needs on the Supreme Court.

This piece originally appeared on South Coast Today

Exclusive Offers

5 Shocking Cases of Election Fraud

Read real stories of fraudulent ballots, harvesting schemes, and more in this new eBook.

The Heritage Guide to the Constitution

Receive a clause-by-clause analysis of the Constitution with input from more than 100 scholars and legal experts.

The Real Costs of America’s Border Crisis

Learn the facts and help others understand just how bad illegal immigration is for America.