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.
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).
‘Don’t You Dare Touch Roe!’ — Judicial Confirmation Silly Season Begins
Roe probably won’t be overturned because it probably won’t come up; Casey is the center of abortion law nowadays.
.. the cesspool that judicial-confirmation politics has become since his name became a synonym for slander in 1987 — a debacle that changed history for the worse in more ways than the woodenly whimsical Anthony Kennedy’s assumption of what should have been the Bork seat.
.. Thanks to Justice Kennedy, we’ve actually been living in a Casey world — as in Planned Parenthood v. Casey — for the past quarter century. For good and for ill.
.. It is a sign of our wayward times that a “conservative” judge is one committed to construing the law as it is written, in accordance with what it was commonly understood to mean when adopted. You might think that’s simply what a judge is. But progressives rely on robed legislators to block the elected officials who beat them at the polls, and to impose on the nation what they cannot enact democratically. These are known as judges with “empathy.”
Collins wants you to know: She’s not one of those staid old Republicans looking for a staid old by-the-book jurist. She wants empathy!
.. Rhetorically at least, this 1973 ruling’s fabrication of a constitutional right to abort unborn children retains for progressives its sacral status. But in point of fact, the Supreme Court itself has dismantled much of Roe’s framework. What survives is its narrowing core.
.. Democrats eliciting verbal acrobatics from solid nominees who are well aware both that Roe is atrociously reasoned and that saying so will imperil their confirmation chances.
.. If abortion ever gets rolled back in this country, it will be because a cultural shift forces legal change, not the other way around.
.. Casey was a triple gut punch for conservatives.
- First, in a bitterly divided 5–4 ruling, the Court upheld the constitutional abortion right it purported to discover in Roe.
- Second, the main opinion, among the most farcical in the Court’s history, was jointly crafted by Reagan appointees Kennedy and Sandra Day O’Connor, along with Bush 41 pick David Souter.
- Third, while paring Roe back in significant ways, the trio reaffirmed a potentially limitless “substantive due process” right to “liberty” in any matter as to which five unelected lawyers decide dignity and privacy warrant it.
.. the ruling’s demolition of Roe’s capricious trimester construct.. Casey’s reaffirmation of Roe is highly qualified. It made clear that the state is free to adhere to a strongly pro-life policy even before “fetal viability.”.. And viability is a dynamic concept, so as evolving technology made it possible to preserve and protect unborn life at earlier stages, states would have commensurate power to restrict or even outlaw abortion throughout more of pregnancy... the national abortion debate should never have been moved to the federal courthouse for resolution, and pro-lifers cannot win it there in any event. It has to be won in the culture, from the ground up... It has since moved on to gay rights (including same-sex marriage, endorsed in Justice Kennedy’s Obergefell opinion in 2015), and now we are on to LGBTQ rights, three-partner marriage (and why stop at three?), and who knows what other transgressive erosions of bourgeois culture... What we need from judges is to remember that our law is a reflection of who we are, not a tool to shape us into something else. What we need from confirmation hearings is to ensure that we get judges of that kind.
Trump Blows Away a Penumbra
In fact, the threat to Democratic political rule is even bigger than Roe, which was about just one thing. What is at risk is the rationale for judicial overreaching that was created in the court’s 1965 decision, Griswold v. Connecticut.
Supreme Court decisions don’t often produce phrases that enter the vocabulary of political life, but Griswold did. The phrase is “penumbras formed by emanations.”
Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Douglas’s “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it.
.. Having all but abandoned the legislative branch to achieve their goals, progressives now think the Trump Supreme Court nominations will close off the judiciary as a policy tool. Thus, the hysteria.
In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.
.. In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.