07/12/2018
A statement on SCOTUS nominee Kavanaugh:
On July 9, 2018, President Donald J. Trump selected his second appointee to the Supreme Court, Judge Brett Kavanaugh. To most people following the President’s path to making his choice, Judge Kavanaugh should not come as a surprise. He, like all potential choices, is a member of the Federalist Society. As a member of the Federalist Society, he is an originalist and strong textualist in Constitutional interpretation. He was the most qualified candidate graduating from Yale Law School and clerked for Justice Kennedy. After his appointment to the D.C. Circuit by former President George W. Bush, he has written almost 300 opinions in his 12 years. Time and time again, Judge Kavanaugh has shown his loyalty to strict interpretation of the Constitution and a firm belief in the enumerated rights.
Many people are worried about the shift in political motives of the Supreme Court, but political motives are not the forte of Judge Kavanaugh. As a strong originalist, he believes firmly in the separation of powers, and that politics make laws while the Court interprets. He is quoted, "I revere the Constitution," he said. “I believe that an independent judiciary is the crown jewel of our constitutional republic.” For many worried liberals, there is an upside to the approaches of Judge Kavanaugh who will likely restrict the powers of the Executive branch and the ever increasing Administrative law. Judge Kavanaugh will likely be a strong supporter of States’ sovereign autonomy and ability to self govern.
Key Issues:
Abortion: Many people chastise Judge Kavanaugh’s dissent regarding a 17-year-old illegal immigrant being detained demanding an abortion without delay. This case was vastly different than the established jurisprudence, and Judge Kavanaugh said the court was creating “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” This case to Judge Kavanaugh expounded that the Federal Government was not creating an “undue burden” and was therefore in line with Roe v. Wade by seeking expeditious transfer of the girl to a sponsor prior to her decision. He did not oppose the action of abortion, was only tasked with the question, “Are the government’s actions an undue burden against abortion?”
Administrative law: Judge Kavanaugh opposes the whimsical interpretation by executive administrations of law which the Supreme Court gives great deference to. Judge Kavanaugh said on the Chevron Doctrine, "To begin with, it has no basis in the Administrative Procedure Act. So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch. Moreover, the question of when to apply Chevron has become its own separate difficulty." Further, reflecting on his time spent in the Bush administration, "Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints." His fundamental views may help reign in Executive power back to a more reasonable amount, and prevent the increasingly rapid sways of the political tides.
Gun Control: Judge Kavanaugh is a strong supporter of the enumerated rights including the Second Amendment. He has opined about the common usage set forth by the Supreme Court writing that semi automatic rifles “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.” Further, he has stated that a ban on fully automatic rifles would be wholly Constitutional.
Final thoughts: Judge Kavanaugh has a history of interpreting the law how it is, not how he normatively feels it should be. He is a dedicated originalist, and out of his some 300 opinions he has for the most protected constitutional freedoms with the exception of one case in which he expanded the guidelines allowing for NSA domestic surveillance, a practice which has since been discontinued. Overall, we look forward to seeing Judge Kavanaugh swiftly confirmed by the Senate and filling Justice Kennedy's empty seat.
