Brett Kavanaugh Has Shown Deep Skepticism of Regulatory State

As an appellate judge in Washington, President Trump’s Supreme Court pick is known for ruling against regulators he sees as having overstepped their bounds

His dozen years on the U.S. Circuit Court of Appeals for the D.C. Circuit have been marked with dozens of votes to roll back rules and regulations. He has often concluded that agencies stretched their power too far and frequently found himself at odds with the Obama administration, including in dissents he wrote opposing net-neutrality rules and greenhouse-gas restrictions.

.. When a divided Supreme Court in 2015 rejected the Obama administration’s rules requiring power plants to cut mercury emissions and other pollutants, the majority opinion by conservative justices drew heavily from Judge Kavanaugh.

.. The high court cited his earlier dissent when he argued that the Environmental Protection Agency had failed to consider the costs of its regulations before moving forward. The EPA, he concluded, had ignored a requirement in the Clear Air Act that the agency determine whether an electric-utility regulation is “appropriate” before imposing it.

.. Too often, he found, judges were giving agency regulators the benefit of the doubt based on a doctrine that instructs judges to give more deference when the meaning of what Congress wrote isn’t precisely clear.That was the case, he thought, when the D.C. Circuit last year reviewed the legality of net-neutrality rules adopted by the Federal Communications Commission.

In a dissenting opinion, he said the FCC didn’t have the authority to classify internet providers as “telecommunications services” and ban them from splitting internet traffic into fast and slow lanes.

.. In a dissenting opinion, he said the FCC didn’t have the authority to classify internet providers as “telecommunications services” and ban them from splitting internet traffic into fast and slow lanes.

.. “He’s not coming with a machete and slashing through agency regulation,” said Mr. Adler, defending the judge’s record. “He’s holding agencies to a slightly higher standard than other judges.”

Amy Barrett for the Supreme Court

her membership in an organization called People of Praise. This body, which is not affiliated with the Church or any Protestant denomination, is devoted to so-called “charismatic” spirituality: guitar hymns and a somewhat gushy attitude towards prayer. Nothing could be further removed from the high-and-dry devotional lives of actual traditionalist Catholics, whose responses to the charismatic movement since its inception have tended to range from “Not my cup of tea, thanks!” to accusations of heresy.

.. I fully expect that sooner or later a court of which Barrett were a member would overturn Roe v. WadeThat a woman should be responsible for undoing this legally sanctioned perversion of the most wholesome relationship in nature, that between a mother and her child, seems to me right in a way that is almost ineffable.

.. she asked the absolute sharpest, most penetrating questions. She is scary smart.”

.. Barrett should be nominated by the president and confirmed for the very simple reason that she is a gifted legal mind respected by her colleagues and a person of outstanding character whose presence on our country’s highest court would do credit to the United States and her people.

Kennedy’s Replacement Should Be Judge Amy Coney Barrett

It will be nice to have one woman in the majority when the Supreme Court finally overturns Roe v. Wade.

.. She is the youngest of the five top choices, which is a mark in her favor given that the nominee will have life tenure and Trump will want one who will leave a lasting mark on the law.

.. Her educational history — she went to Rhodes College and Notre Dame Law School — would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni.
.. Barrett has also recently been through Senate confirmation to a federal appeals court. She won the support of all the Republicans and three Democrats
.. But they will be hard-pressed to argue that she is an extremist given their own recent support... “Dogma lives loudly within you,” Feinstein said, in reference to Barrett’s Catholic faith. Never mind that Barrett had already said that “it is never appropriate for a judge to apply their personal convictions, whether it derives from faith or personal conviction.”

.. Feinstein’s office defended the senator by noting that Barrett had also written, in an article for the Notre Dame Alumni Association, that all people play a role “in God’s ever-unfolding plan to redeem the world” — which is a fairly basic statement of Christian belief that does not imply support for the judicial imposition of theocracy.

.. opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals.

.. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.

So pick Barrett, Mr. President. Let the dogma live loudly on the Supreme Court.

 

The Supreme Temptation of Amy Coney Barrett

And Republicans expect — and want — liberals to be so freaked out by thisthat they oppose her in a manner that can be branded anti-religious. They’re setting her up to be a Christian martyr, minus the grisly end, and daring Democrats to take the bait.

.. Aaron Blake sagely sized up the appeal of this dynamic to Trump, writing that it’s “exactly the kind of battle he generally relishes: One that invites his opponents to overreach.” My Times colleague Ross Douthat tweeted that if Trump wants to “trigger the libs,” he’ll nominate Barrett. Douthat further predicted that her nomination “might bring on the culture-war apocalypse.”

.. She’s the most tactically fascinating of the front-runners in several ways. At 46, she’s the youngest, so her time on the court could easily cover four decades. She’s a longtime resident of Indiana, which happens to be home to Joe Donnelly, one of three Democratic senators whose votes are most clearly in play when it comes to confirming Trump’s nominee.

.. She’d be the only justice on the Supreme Court without the imprimatur of the Ivy League, and there’s little whiff of the coastal elites about her. She did her undergraduate work at Rhodes College in Tennessee and then attended law school at Notre Dame

..  her own time on the bench is limited to her eight months on that court.

.. her promoters revel openly in the idea of Roe v. Wade being overturned after the addition of another woman to a Supreme Court that would then have an almost even gender balance of four women and five men.

.. her Senate confirmation hearings after her nomination for the circuit court made her a hero to conservatives, especially religious ones. They took issue in particular with questions that Senator Dianne Feinstein

.. “The dogma lives loudly within you,” Feinstein said

 

 

 

This is the fight of our lives. Here’s how we win it.

Senators such as Donnelly, Heitkamp and Manchin need to argue to those who are ambivalent about abortion, or even against it, that right-wing judges would sanction a plutocratic government with little capacity to defend their interests.

.. “The Supreme Court, in case after case, is freely imposing its own view of sound public policy — not constitutional law, but public policy,” Biden told me at the time. “What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people.”

..  Biden acknowledged that the phrase “judicial activism” has “often been used by conservatives to criticize liberal judges.” But “the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own.”

“The existing Court’s assault on voting rights, collective bargaining and religious liberty is awful enough — just imagine how bad working people will have it if another right-wing justice joins the Court.” He warned of the court “taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”

.. The future of abortion rights is central to the coming battle. But so are civil rights, corporate power and our democratic capacity to correct social injustices. Conservatives should not be allowed to distract attention from the aspects of their agenda that would horrify even many who voted for Donald Trump.

Anthony Kennedy’s Imperial Legacy

In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.

He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.

He did this without a particularly coherent constitutional theory

.. showing neither humility nor rigor in his ultimate decisions

.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose

.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.

.. Without being a completely consistent libertarian, he was a general champion of freedom

.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.

.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism

.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.

.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.

.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice

.. unwillingness of elected representatives to act on controversial issues.

.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.

.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.

.. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.

.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy

.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to

let social-democratic policymaking stand (witness his vote to save Obamacare).

 

Kennedy Retires — It’s On!

Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left.

.. For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.

.. Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79). -That’d make six relatively young liberal justices and a lasting majority. -Now, it’ll be five conservatives, all 70 and under.

.. (Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)

.. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.

.. First, the hearings could well be a catalyst for real violence

..  Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:

I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.

.. both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises.

.. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.

.. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?

.. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.

.. Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.

.. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.

It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.