Law & the Courts

There’s Much for Conservatives to Like in Brett Kavanaugh

Senate Judiciary Committee Chairman Senator Chuck Grassley greets Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill in Washington, D.C., July 10, 2018. (Leah Millis/Reuters)
A response to David French.

When David French talks, conservatives should listen. He is a serious man, a serious thinker, and above all a good man. But alas, my friend is not infallible, as I am sure he will recognize. And I think he is a hint too cautious on the president’s nomination of Brett Kavanaugh. It is the grand slam that David hoped for in the nomination process: A bases-loaded, two-outs, down-three, bottom-of-the-ninth round-tripper for conservatives.

There is every reason to expect, from Judge Kavanaugh’s writings and speeches, that he will fit comfortably within the conservative wing of the Supreme Court. As he explained in his speech last night, he views the proper separation of powers within the federal government as a bulwark of individual liberty. What that means is that the federal government should be kept within its proper lanes, with a proper recognition of the limits of power of Congress, the president, and the courts as established by the Constitution.

And this does not mean, as many critics on the left are trying to suggest, unchecked presidential power (which they were fine with as long as they liked the president and his policies). As Judge Kavanaugh himself has written, the “executive power” vested in the president is both “essential to societal order and progress, but simultaneously a grave threat to individual liberty.” Americans are protected from that threat because they elect a single president who is accountable to We the People. To Judge Kavanaugh, the president’s authority over the executive branch is plenary, which means that a runaway administrative state must be accountable to a single elected official, and thus the voters. But the president’s authority over everyday Americans should be modest.

David laments that Judge Amy Coney Barrett would have been a better choice, and that her nomination would be “an important cultural moment.” But the Left is already lining up for the cultural war over Kavanaugh, and he is more than prepared to acquit himself against their slings and arrows. His opinions on religious liberties and sexual privacy are well within the realm of mainstream conservativism. Indeed, as I’ve written, when he dissented on the highly novel issue of whether the federal government had an obligation to facilitate the abortion of an illegal-immigrant teenager detained at the border, Kavanaugh emphasized that the government “has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion” and that the Court should uphold “reasonable regulations” even when applying Supreme Court jurisprudence.

Some of the decisions flagged by conservatives (including David) as areas of concern may best be understood by the dynamics of the case. See, for instance, his dissenting vote in the D.C. Circuit Obamacare case, Seven Sky v. Holder. There, two of Kavanaugh’s colleagues, including iconic conservative Laurence Silberman, voted to affirm the statute’s individual mandate, concluding that it was constitutional under the Supreme Court’s commerce-clause jurisprudence. Kavanaugh raised serious questions about that analysis in dissenting from the majority holding but ultimately concluded that the courts lacked jurisdiction over the question under a federal statute barring certain tax suits in federal courts. That conclusion is the subject of fair debate among conservatives, and I may not have gone the same route if anyone had been foolish enough to make me a judge. But Kavanaugh may have simply been seeking to offer a plausible off-ramp to Judge Silberman that would have avoided the latter’s broad interpretation of Congress’s powers over interstate commerce (a ruling that the Supreme Court eventually discarded, though it upheld Obamacare on different grounds).

Similarly, in dissenting from a decision upholding the contraception mandate in Priests for Life v. Department of Health and Human Services, Kavanaugh offered swing justice Anthony Kennedy a roadmap to striking down the revised mandate. He adopted Kennedy’s approach to the question — conceding that the government has a substantial interest in providing contraception — but concluded that the mandate nevertheless violated religious employers’ First Amendment rights. These decisions have been criticized by conservatives for their reasoning, not their results. But in light of the circumstances, Kavanaugh sought to convince his judicial colleagues how to strike down the mandate on terms they could live with. They show that Judge Kavanaugh views the power of persuasion as an important tool in his judicial Bat Belt, but they don’t suggest that his approach to those issues would be anything less than principled as a justice of the Supreme Court.

As for Judge Barrett, her time may indeed still come.

In fact, Judge Kavanaugh’s decisions on other fundamental questions reveal a jurist who respects the Constitution’s text and history. His two opinions holding that the Consumer Financial Protection Board’s single-director structure violated the separation of powers are a case in point. They should be required reading for law students. The CFPB’s concentration of “enormous executive power in a single, unaccountable, unchecked Director,” he wrote, “departs from settled historical practice.” The Supreme Court had, since the Roosevelt administration, permitted multi-member “independent agencies,” but the CFPB vested all of the power in a single person, thus posing “a far greater risk of arbitrary decision-making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.”

In fairness, David recognizes this, writing that “there is a lot for conservatives to like about Kavanaugh.” And there will be a lot for David (a conservative’s conservative himself) to like as well. Far from the “elitist’s elitist” that David posits, Judge Kavanaugh is, despite his sterling academic credentials, a regular guy who loves his Washington Nationals and a good beer in a local pub. The family man portrayed at the White House last night is the real Brett Kavanaugh, and that’s unlikely to change when he is confirmed to the Supreme Court.

As for Judge Barrett, her time may indeed still come. Judge Barrett has a sterling background in academia, but her time on the bench has been brief — less than a year. She is young and quite impressive, but a bit of time to see how she approaches a wide range of legal issues will both shore up her credentials and make it easier to defend her from specious attacks from her (quite loud) critics on the left. Of course David is correct that there may not be a next time, and perhaps her star may not shine as brightly then even if there is. But at the same time, it’s within the realm of possibility, given the age of some of the justices, that there will be another vacancy, and that Republicans might even pick up a seat or two in the Senate midterm elections (I’ll let the pollsters debate that one), making the glide path for a possible future Justice Barrett even smoother.

In the meantime, sit back and enjoy the show.

NOW WATCH: ‘5 Things You Need To Know About Judge Brett Kavanaugh’

Shannen W. Coffin — Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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