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.
It Took a Village to Raise Kavanaugh
Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.
.. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.
.. First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation, explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.
.. Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement.
.. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”
.. Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society.
.. The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.
.. the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did.
.. Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.
.. Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.
.. The members often break down on libertarian versus conservative lines, or, as we saw in the behind the scenes jockeying recently, between social conservatives (for Amy Coney Barrett) and establishment conservatives (for Brett Kavanaugh).
A Liberal’s Case for Brett Kavanaugh
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.
.. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.
.. Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.
.. This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.
Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.
.. admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.
.. they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.
This would be a mistake. Judge Kavanaugh is, again, a superb nominee.
.. pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task).
Trump nominates D.C. lawyer Noel Francisco as solicitor general
Francisco had originally been named as the No. 2 in the solicitor general’s office, which represents the federal government in appellate courts. He might be best known as the lawyer who represented former Virginia governor Robert F. McDonnell last year when the Supreme Court unanimously overturned McDonnell’s conviction on corruption charges.
.. The solicitor general is considered to be one of the nation’s best legal jobs, and the occupant is often referred to as the “10th justice.
.. Jeffrey B. Wall, a veteran of the office who now works for the firm Sullivan & Cromwell, will assume Francisco’s role as principal deputy.
.. representatives of the Trump transition approached U.S. Circuit Court Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — an influential judicial voice on the right — to see whether he would be interested in the job.
.. For a time, there appeared to be two front-runners. One was George T. Conway III, a New York lawyer who received high marks from those in the Supreme Court bar and who is also married to Trump adviser Kellyanne Conway.
.. The other was Charles Cooper, a Washington legal fixture and confidant of Attorney General Jeff Sessions.
.. Cooper pulled out of consideration, and the Trump administration expanded its search.
.. he has had to recuse himself from some of the most important cases, such as the legal battle over Trump’s first travel ban executive order, because his law firm Jones Day represented parties in the dispute.
.. Francisco is a former clerk to Justice Antonin Scalia
.. Francisco was part of the team that represented President George W. Bush in the 2000 Florida presidential election recount.
.. He was raised in Oswego, N.Y., and both his undergraduate and law degrees are from the University of Chicago.
.. he represented religiously affiliated organizations that said providing contraception services for their female employees would implicate them in sin.