If Kavanaugh joins the Court, his opinions will undoubtedly be clearer and intellectually consistent. Long-term, this is no small achievement. When the Court considers overturning its own precedent, the most pressing questions are whether or not the precedent is poorly reasoned and proves unworkable.
For 12 years, Judge Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit, often considered the “second-highest court in the land” because of its heavy portion of constitutional and regulatory cases. On those issues, Kavanaugh has become the intellectual leader of his generation of judges on the lower courts. And the best evidence of this are those cases in which Judge Kavanaugh’s analysis was adopted by the Supreme Court even after Kavanaugh’s colleagues on the D.C. Circuit rejected it.
Supreme Court nominee Brett M. Kavanaugh won the support of one critical Republican senator Monday and met privately with a key Democrat as he inches closer to securing enough votes for confirmation to the high court.
“My conversation with Judge Kavanaugh reinforces my belief that he will evaluate cases before the Supreme Court from a textual and originalist point of view,” Mr. Paul said.
So Minority Leader Chuck Schumer wants Democrats to delay declaring for or against Supreme Court nominee Brett Kavanaugh until Republicans prove they have the votes to confirm the judge. This strategy has been obvious from the start, and its goal is less to defeat Judge Kavanaugh than to protect incumbent Democrats running for re-election.
Meanwhile, Judge Kavanaugh’s march to confirmation advanced Monday when Kentucky Senator Rand Paul announced his support.
What Kavanaugh has demonstrated is that he is a textualist with a deep respect for the U.S. Constitution’s separation of powers as the best protection of our liberty. The best example of this is Kavanaugh’s writings on how much deference the courts should grant to the executive branch agencies or, as they have come to be called, the administrative state.
Republicans have sent the clearest signals yet that they will not allow Democratic foot-dragging to delay their push to confirm a new Supreme Court justice, ditching negotiations and plowing ahead with their own more-limited investigation into Judge Brett M. Kavanaugh’s background. Senate Majority Leader Mitch McConnell also has given his boldest prediction to date, saying that while he doesn’t expect much Democratic support, Judge Kavanaugh will be confirmed to the high court.
Now President Trump has nominated Judge Brett Kavanaugh to serve as our next Supreme Court justice. I enthusiastically support the president’s choice. Kavanaugh has already served as a federal appeals judge for over a decade and has a strong record of judging according to the rule of law. Instead of merely trying to reach the result he wants in any given case, Kavanaugh has let the law and constitution dictate the result. That is what we expect from our judges, but too often it isn’t what we get.
As Senate Judiciary Committee chairman Chuck Grassley detailed in an excellent Senate floor speech yesterday, he expects that his committee will “receive up to one million pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel.” This, of course, is on top of the most probative evidence of Judge Kavanaugh’s qualifications to be a Supreme Court justice: the “307 opinions he authored in 12 years as a D.C. Circuit judge, the hundreds more opinions he joined, and the 6,168 pages of material he submitted as part of his Senate Judiciary Committee questionnaire.”
Brett Kavanaugh, or at least pretend that he’s trying very hard. His strategy so far is to stall for time and compare the nominee to Richard Nixon.
The political point of all this is that Republicans shouldn’t be the least bit defensive about Judge Kavanaugh’s record, and Mr. Grassley has good reasons to limit a document search. Mr. Schumer is the fellow who is employing some Nixonian deception.
Supreme Court nominee Brett Kavanaugh will be an ardent defender of religious liberty, all experience shows.
As general counsel of a law firm devoted to religious liberty cases, I normally would evaluate a judicial nominee by searching through his or her decisions on the First Amendment and the free exercise clause. However, I didn’t need to comb the archives to see where Kavanaugh stands on religious liberty, because of personal experience — both my own, and that of my friend and CEO, Kelly Shackelford — dealing with Kavanaugh as a lawyer and a judge.