Good Friday Morning! After winnowing Trump’s Supreme Court nominee list down to the final four, we finally have a nominee. Brett Kavanaugh, currently a judge on the DC Circuit Court of Appeals, is one of the brightest legal minds on the right or left. Not to mention he’s one of the most respected judges in the country. I’ll get into his nomination, some of his cases, and the left’s reaction to him below.
Also up, I’ll cover part of Trump’s visit to Europe and the compelling issue of Germany. Finally, I’ll wrap with a brief look at the testimony of FBI agent Peter Strzok before C0ngress. Links to follow.
New this week at the Conservative Institute
Roe v. Wade gets all the attention in the media, but the two most important areas of law for the next Supreme Court justice are the First Amendment and reining in the administrative state.
And as we’ve seen in cases like Masterpiece Cakeshop, the regulatory state has also attempted to curtail speech and religious rights. You can see how this is true by watching retiring Justice Anthony Kennedy in his final term.
The Finalist: Brett Kavanaugh
As I mentioned above, Brett Kavanaugh is one of the best nominees on President Trump’s Supreme Court list. He’s a thorough and sound conservative who analyzes cases from an originalist perspective, meaning what did the text of a law or statute mean to the adopters of law at the time it was passed.
He’s a thoroughly orthodox conservative on a litany of issues, and I suspect he’ll help drive the court in a more rightward and, more importantly, originalist direction.
The intense focus on judges
Before getting too far into the weeds, I wanted to step back and bring up a more significant point. People are going to focus intensely on Kavanaugh’s record as a judge, and ascertain how he rules on a given case. This is an important task. From my vantage point, the essential part of the vetting has been done by those in the Federalist Society and Heritage Foundation circles. They gift-wrapped a ready-made list fo the President that was chock-full of excellent SCOTUS nominees.
But the focus on Kavanaugh’s record underscores a new reality in judicial nominees: the belief that they make value judgments and not judgments on the rule of law. The intense focus on judges and their views on topics like abortion is new to the judicial nomination process. But it was predicted by Justice Scalia by in 1992 in his dissent in Planned Parenthood vs. Casey, the case that upheld Roe vs. Wade while changing the legal rationale.
Scalia was quite prescient in how abortion was shaping judicial nomination battles, and how that would only amplify over time. He said, dissenting in Casey:
In truth, I am as distressed as the Court is–and expressed my distress several years ago, –about the “political pressure” directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution and are enforceable by this Court–not just those mentioned in the text or established in the traditions of our society. Why even the Ninth Amendment–which says only that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”–is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted at-rights,” definable and enforceable by us, through “reasoned judgment.”
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here–reading text and discerning our society’s traditional understanding of that text–the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school–maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
Scalia’s point was that in deciding Roe vs. Wade, and Planned Parenthood vs. Casey, and attempting to “solve” the issue, that it destroyed the legitimacy of the court.
There’s no basis in text, case law, history, or tradition in supporting the right to an abortion. It was created out of thin air by seven liberal justices. And if the court was going to start wholesale legislating new rights and policies out of thin air, then they were stepping directly into the political realm of Congress. If the court is like Congress, that necessarily opens it up the political pressure, protests, and marches.
Which brings us to the nomination hearings for Brett Kavanaugh. In any other era, Kavanaugh would get confirmed 100-0, with no dissent. He’s highly qualified, and nothing is standing out as a reason on why he shouldn’t get approved.
But the Supreme Court started issuing value judgments, relying heavily on the theory of living constitutionalism, where the text means whatever you want. And when the liberal courts started legislating from the bench, liberals in Congress, in turn, began providing political protection for the court. That’s when you start getting contentious hearings when people like Robert Bork and Clarence Thomas got tarred and feathered for their beliefs.
All of this is an outgrowth of the court stepping into a political role and legislating. Moving back towards a more originalist position will restore the court’s reputation, but it will take time.
Kavanaugh’s judicial record
Kavanaugh has authored somewhere around 300 legal opinions in his twelve years on the DC Circuit Court of Appeals. The DC Circuit is often colloquially referred to as the second most powerful court in the land because it has direct jurisdiction over all the federal agencies in the US government.
In a nutshell, that means the DC Circuit handles a ton of administrative law cases because it deals with the bulk of all case law in that area of law.
Some highlights from Kavanaugh’s judicial record include:
- Strong protections on free speech. Ken White (Popehat) wrote a detailed piece of numerous cases Kavanaugh wrote protecting speech in various situations.
- Law prof Johnathan Adler agrees with White’s analysis, saying that Kavanaugh would continue the current court’s active streak of free speech protection.
- Kavanaugh has a long record of reigning in administrative agencies, and he agrees with Kennedy and Gorsuch on the need to reign in Chevron deference (that’s the legal doctrine that says courts must give deference to federal agencies in how they interpret statutes).
- Ilya Somin, a lawyer at the libertarian CATO Institute, makes solid case that Kavanaugh’s opinions in the Obamacare cases were correctly decided.
- Kavanaugh has a lengthy record on vigorously protecting the Second Amendment. In fact, its assumed right now if he were put on the court that pro-gun rights groups would increase the number of cases they sent to the Supreme Court to get him to rule on them. He’s said in cases that he didn’t believe bans on assault weapons are constitutional.
- Edith Roberts has a lengthy profile at SCOTUSBlog covering some areas I haven’t here if you want the deep dive.
I have a piece coming out today in at the Conservative Institute covering the lone case Kavanaugh encountered on abortion. In that case, he dissented from the majority opinion saying that the government wasn’t required to facilitate abortion on demand for an illegal immigrant. In his dissent he argued:
The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion. I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched. After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.
His best line the dissent was an early summation of the majority opinion’s argument:
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.
I can’t say for sure how a case like this indicates he’d rule on something like a direct challenge to Roe vs. Wade or Planned Parenthood vs. Casey. However, he did read that decision narrowly and saw the government could restrict the abortion right — or in this case not invent new ones.
I suspect he’ll get confirmed rather easily. NYT reporters already have sources in the camps of various red-state Democrats who already believe Kavanaugh will get confirmed with full GOP support. Which means the pressure will get hot for them to support Kavanaugh as well. Reporters in the GOP leadership camp are projecting Kavanaugh to pass with 53-55 votes.
Democrats don’t have any tactics available to them other than delaying, and that doesn’t buy them much time. Strong odds Kavanaugh is installed in time for the beginning of the fall term for the Supreme Court, which starts October 1st. He’ll get to hit the ground running too. There are six cases and a conference scheduled for the first week of the term.
Trump attacks errrrrrrrbody in Europe
I’m not going to lie; I lost count of all the people Donald Trump insulted, attacked, or demeaned in some way on his Europe trip. I was focusing more on the Kavanaugh news — as its all anyone is talking about amongst lawyers.
That said, I think it’s pretty easy to say a few things on this topic.
First, Trump’s tone, word choice, and demeanor on this trip hurt the US abroad. It doesn’t help us build alliances or strengthen NATO. And it continues a trend that started with Obama, where the suggestion is made to countries that the United States isn’t interested in ensuring a stabilized world order.
Second, while Trump’s tone and rhetoric are wrong, he has a point. Europe absolutely must help pay for US costs in defending Europe via NATO. That’s part of the agreement, and it helps keep everyone on the same page when pushing against countries like Russia and China.
Third, Germany is wrong to cozy up to Russia and cut a gas pipeline deal. Merkel’s decision to pursue gas deals with Russia connects them to Putin in ways that are dangerous in the long term. And those types of agreements with Russia are a continuation of the kinds of deals former German Chancellor Gerhard Schröder cut with Russia and Putin pre-Merkel.
There’s no need for Germany to seek energy dependence on Russia. Germany could roll back their ridiculously strict nuclear power laws. Or, Germany could follow the example of Poland, who, despite being closer to Russia, refused to get into bed with the Russians and signed a deal with Denmark. Poland also opposes the pipeline between Germany and Russia.
Combine this with the near useless status of the Germany military, German soldiers used broomsticks as guns in a NATO exercise a few years back, and you get a picture of why Merkel and the Germans deserve some of these attacks.
The question is this: do you want an armed Germany, or not?
That’s the $1,000,000 question. Because some theorists look at Europe and come away with the historical lesson of: “Anytime the Germans have a fully functioning army, it doesn’t go well for the rest of Europe.”
And under that view, keep Germany effectively disarmed is good for the long-term health of the European continent because it avoids war.
I don’t have an answer to that question, but it is one of the significant points that comes up when Germany’s lack of NATO funding comes up.
I tend to lean towards getting Germany to contribute more and become less reliant on foreign energy. They could do that by restarting their nuclear energy plants. Purposely aligning with Russia and becoming dependent is a lethal plan.
Peter Strzok testifies before Congress
There’s no other way to put it: Peter Strzok’s testimony before Congress was a complete and utter disaster. It brought shame on Strzok, the FBI, and Congress.
Strzok continues to destroy his reputation as an FBI agent. While the OIG effectively cleared him any biased decision making in the Clinton email server investigation, he’s continued to give testimony that makes you question the OIG report.
In the process, the FBI’s reputation is in tatters. Strzok’s smirks, faces, and reactions to questions he got during testimony undergirded his lack of respect for anything. And in the process, he made the FBI look terrible.
Finally, Congress looked entirely incompetent. From the Republicans who kept hammering questions that didn’t matter, to Democrats applauding Strzok — a man who got torn apart in an OIG report for his actions. Rep. Steve Cohen (D-TN) went so far as to claim Strzok deserved a Purple Heart.
In short, it was an embarrassing episode for the entire country. Strzok should never be allowed to set foot in a government agency ever again. The evidence may show that he didn’t have a bias in any decisions, but he’s destroyed the concept of keeping a government agency beyond reproach.
It was a circus show in DC. A spectacle in all the wrong ways.
Links of the week
Democrats Don’t Fear Brett Kavanaugh; They Fear The Constitution – David Harsanyi, Townhall
Brett Kavanaugh Will Right the Course of the Supreme Court – Jack Goldsmith, Time Magazine
A Liberal’s Case for Brett Kavanaugh – Akhil Reed Amar, The New York Times
It Took a Village to Raise Kavanaugh – David Brooks, The New York Times
Trump Picks Brett Kavanaugh – Ed Whelan, National Review
Kavanaugh Is a Mentor To Women – Amy Chua, The Wall Street Journal
Brett Kavanaugh’s View on the Second Amendment: Trump’s Supreme Court pick says ‘text, history, and tradition’ key to determining constitutionality of gun laws – Stephen Gutowski, The Washington Free Beacon
Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say? – Benjamin Wittes, Lawfareblog
NBC’s Capitol Hill Reporter Demonstrates Why So Many Dislike the Press – Charles C. W. Cooke, National Review
Satire piece of the week
Ruth Bader Ginsburg Encased In Carbonite Until Next Court Session – The Babylon Bee
WASHINGTON, D.C.—With President Trump now nominating his second justice to the Supreme Court, a lot of attention is being paid to the oldest Supreme Court Justice, Ruth Bader Ginsburg. Critics fear that if Trump replaces her, it would shift the court far to the right. She’s in fine health for now, though, according to the technicians that have frozen her in carbonite until the next term of the Supreme Court.
As Ginsburg was lowered into the carbonite freezing chamber, she bravely looked up at her fellow liberal justices, who said, “I love you.” She reportedly replied, “Huh?”
Thanks for reading!