Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Friday, September 7, 2018

Top Ten Moments and Takeaways from Kavanaugh Hearings

The Senate Judiciary Committee hearings on the nomination of D.C. Circuit Judge Brett Kavanaugh to the Supreme Court adjourned this afternoon at 4:15.  

 After four long days of hearings, Americans now have a glimpse of a man and judge who is kind, thoughtful, humble, intelligent, and intellectually curious, possesses incredible endurance, has an encyclopedic knowledge of the law, has a consistent judicial philosophy of looking first to the text of the relevant law at issue, works very hard to get the right answer in each case and be fair to all litigants, and has a deep respect for the Constitution, the separation of powers, federalism, and the rule of law.  And we also have a depressing picture of what the next two years of Democratic presidential primary will look like.

 Here are the top ten moments and takeaways from the hearings.

1. Judge Kavanaugh's poise, including his serious responses to Democrats' questions that were trying to trap him, have him disclose his personal policy views, or commit on how he would rule in future cases:


 2. Judge Kavanaugh's repeated description of the proper role of a judge, including a deep and consistent interpretive philosophy relying on the text of the Constitution and statutes:







 3. Judge Kavanaugh's repeated description of the separation of powers:

 4. How those who knew Judge Kavanaugh and have practiced before him praised him highly both personally and as a judge, while the third-party witnesses from Democrats largely made policy points:



5. Senator Ben Sasse's civics lesson on Tuesday (and great questions throughout):






 6. Senator Cory Booker's "Spartacus" moment that wasn't (but then after Sen. Booker was criticized for claiming courage for releasing documents cleared for release, he then did release confidential documents in violation of Senate Rules):






 7. Refreshingly serious questions and dialogue with Judge Kavanaugh from Senators Chris Coons and Amy Klobuchar, even if their interpretations of cases and legal theories were often misguided. But unfortunately for Sen. Klobuchar's presidential ambitions, it's unlikely that deeper thinking about the law will mean much to the increasingly liberal, outcome-oriented Democratic base:


 8. Senator Kamala Harris' bizarre questions about conversations with anyone at Kasowitz Benson Torres, a law firm with over 350 people, that ultimately proved to be only an attempt to cast unfounded aspersions at Judge Kavanaugh:


 9. Judge Kavanaugh's tattered pocket Constitution, which Senator Harris disparagingly referred to as "that book that you carry":



 10. Chairman Grassley's leadership throughout, from being gracious to the Democrats despite their obvious lack of good faith to correcting many of the Democrats' misstatements using his prerogative as Chair to allowing Judge Kavanaugh to respond at the end of a questioning period when a Democrat hadn't allowed the Judge to answer. Likewise, the good points and questions made by the Republican members of the committee:



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Tuesday, September 4, 2018

Highlights and ("Low" Lights) from Day 1 of Kavanaugh Hearing

Today was the first day of the confirmation hearings for the nomination to the Supreme Court of current D.C. Circuit Judge Brett Kavanaugh.  The hearing started inauspiciously, as both Democratic senators and protesters in the room interrupted Chairman Chuck Grassley as he convened the hearing. To their credit, Senators Leahy and Feinstein did not join in the breach of order but rather looked uncomfortable at their colleagues' indecorous behavior.


Chairman Grassley was very patient with the repeated interruptions and responded to them, before finally beginning his actual opening statement over an hour after the hearing started:


 After the Chairman and Ranking Member finally gave their opening statements, the other committee members gave their "10-minute" statements.  Chairman Grassley graciously allowed senators to go significantly over their allotted time, and the Democratic members of the committee greatly abused this courtesy with lengthy speeches.




 Sen. Sasse gave an excellent civics and history lesson about how the distortion of the separation of powers under the Constitution has led us to the point where Supreme Court nominations are so contentious:

After joking that he had a 12-minute preamble followed by an 18-minute opening statement (as Sen. Booker did immediately preceding him), Sen. Tillis pointed out that the Democratic senators could use the hearing as a valuable opportunity to engage in a legitimate debate:

 Both Senators Booker and Harris were clearly on the presidential campaign trail, giving stump speeches meant to appeal to the liberal Democratic base, with Sen. Harris going so far as to claim that Judge Kavanaugh's entire career has been driven by partisanship:

Sen. Graham concluded with a strong statement calling out the Democrats for their hypocrisy:


Then the hearing moved to introducing Judge Kavanaugh and his opening statement:




The hearing will resume tomorrow at 9:30 and can be watched live here.  It is scheduled to last through Friday.  The RNLA will live tweet the hearing each day.  
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Thursday, August 30, 2018

Kavanaugh Hearing Witness List: Bipartisan Support and Irrelevant Opposition


The Senate Judiciary Committee has released its witness lists for the Kavanaugh hearing starting on Tuesday. On one side are a diverse group of people including leaders of the Supreme Court Bar and the other side is John Dean. Democrats seemingly have no interest in Kavanaugh but are trying to score some sort of larger political point. As the Hill puts it:
Dean is among more than a dozen witnesses selected by Democrats on the Judiciary Committee. The former White House counsel "will speak about the abuse of executive power" during his appearance, according to Sen. Dianne Feinstein (Calif.), the top Democrat on the panel.
Contrast this with the Majority witness list which includes some of the greats of the Supreme Court Bar:
The Honorable Theodore B. Olson, Partner, Gibson Dunn & Crutcher; Former Solicitor General, United States Department of Justice, Washington, DC 
Ms. Maureen E. Mahoney, Former Deputy Solicitor General of the United States, Washington, DC
The Honorable Paul Clement, Partner, Kirkland & Ellis LLP; Former Solicitor General, United States Department of Justice, Washington, DC
But Kavanaugh does not just draw from the conservative or Republican side.  His witness include liberals such as Lisa Blatt who wrote in Politico: “I’m a Liberal Feminist Lawyer. Here’s Why Democrats Should Support Judge Kavanaugh:”
Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh, who had long been considered the most qualified nominee for the Supreme Court if Republicans secured the White House. The Senate should confirm him. I have argued 35 cases before the Supreme Court, more than any other woman. I worked in the Solicitor General’s Office for 13 years during the Clinton, Bush and Obama administrations. Because I am a liberal Democrat and feminist, I expect my friends on the left will criticize me for speaking up for Kavanaugh. But we all benefit from having smart, qualified and engaged judges on our highest court, regardless of the administration that nominates them.
It is really sad that the Democrats' star witness literally has nothing to with Judge Kavanaugh or the current Supreme Court. While those that know Judge Kavanaugh and practice in front of the Supreme Court on both sides of the aisle support him. 


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Wednesday, August 22, 2018

Chairman Grassley Responds to Democrats' Latest Stall Tactic on Kavanaugh

Senate Judiciary Chairman Chuck Grassley spoke on the Senate floor (video here) to call out the Democrats' latest tactic today on Judge Kavanaugh's confirmation to the Supreme Court:
Over the past day, several of my colleagues issued statements calling for Judge Kavanaugh’s confirmation hearing to be delayed. They claim it’s because President Trump’s former lawyer recently pleaded guilty to criminal violations of campaign finance law, allegedly at President Trump’s direction. 
I’m not going to delay Judge Kavanaugh’s confirmation hearing. There’s no precedent for delaying a hearing in these circumstances. In fact, there’s clear precedent pointing the other way. . . . President Clinton was under investigation for much of his presidency and was impeached for committing perjury. But the Senate didn’t stop confirming his lifetime appointments to the bench. President Trump is not even close to being in the same legal situation as President Clinton. My colleagues’ pleas to delay the hearing ring false. I’ll tell you why. . . . 
The goal has always been the same: delay the confirmation process as much as possible and hope Democrats take over the Senate in the midterm elections. The Ranking Member’s hometown newspaper reported on this strategy recently, calling it an attempt to stall. The strategies might change, but the goal to obstruct the confirmation process remains unchanged.
The Democrats have tried to use their unreasonable demands for huge numbers of largely irrelevant documents as an excuse to delay also: 
They tried pushing for an unprecedented disclosure of Judge Kavanaugh’s executive branch documents, even though we’ve already received more pages of such documents than any previous Supreme Court nominee. And this is on top of his twelve-year judicial track record and other more relevant publicly available materials. . . . 
On a related note, we are working to make as many of the documents we receive publicly available as soon as possible. It’s common practice to receive documents as “committee confidential” until we can assure ourselves that we won’t disclose sensitive, confidential information to the public. . . .  And, of course, all my Senate colleagues are welcome to review “committee confidential” documents at their convenience. Simply get in touch with my staff. They will make sure you have full access to the range of “committee confidential” documents.
And Chairman Grassley recently noted that, contrary to liberal and Democrat complaints about the hiding of records, the majority of the records related to Judge Kavanaugh's service in President George W. Bush's White House Counsel's office are restricted from public access under the Presidential Records Act and the Freedom of Information Act.  Both Presidents Bush and Trump are working to make as many documents available to the Judiciary Committee as possible, but instead of being praised for their transparency, they are being baselessly attacked.  As of yesterday, the Committee had received 430,700 pages of documents, dwarfing the previous record of 180,000 set by Justice Gorsuch.

 Chairman Grassley also confirmed that the confirmation hearing for Judge Kavanaugh will start on September 4, allowing enough time for him to be confirmed before the start of the Supreme Court term this fall.  Thanks to Chairman Grassley for standing against all the Democrats' attack and delay tactics by consistently pointing to the facts.
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Wednesday, August 15, 2018

Supreme Court Term's Impact on Campus Free Speech

Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses.  First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination. 
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment. 
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court.  Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court.  While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.
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Thursday, July 19, 2018

ICYMI: Leader McConnell on Kavanaugh's Credentials and Democrats' Attacks

Majority Leader Mitch McConnell wrote an excellent op-ed last week on Supreme Court nominee Judge Brett Kavanaugh, Democratic obstruction of the confirmation process, and liberals' fundamental misunderstanding of the role of the courts.  He describes Judge Kavanaugh's sterling credentials and strong judicial record:

Judge Kavanaugh possesses the qualities and qualifications that the American people deserve in a Supreme Court justice. He has outstanding academic credentials, with undergraduate and law degrees from Yale, and over a decade of experience on the nation’s most consequential federal appellate court, the D.C. Circuit Court of Appeals. He possesses an exceptional legal mind and an even-handed temperament. And his record reflects a clear understanding of a judge’s role in our republic: Not to make policy or impose personal preferences, but to begin with the facts of each case and interpret our laws as they’re written. 
He also recounts the left's "unhinged attacks" on Judge Kavanaugh, saying that the American people will not be fooled: 
It would be too optimistic to suggest Judge Kavanaugh’s experience, reputation, education and virtues will earn him a fair hearing from the far left. Extreme voices have tried the same partisan playbook against Republican presidents’ Supreme Court nominees for more than 40 years. In 1975, they insisted that John Paul Stevens lacked impartiality and opposed women’s rights. In 1987, they called then-Judge Anthony Kennedy "sexist" and "a disaster for women." In 1990, they said that a Justice David Souter might "undo the advances made by women, minorities, dissenters, and other disadvantaged groups." . . . But fact-checkers are already exposing the egregious misrepresentations of Judge Kavanaugh’s record. And the far left failed the laugh test from the very beginning by spinning apocalyptic predictions about this nomination before it even existed. . . .
And Leader McConnell skillfully explains how the left's apoplexy over Judge Kavanaugh's respect for the rule of law is fueled by their desire to use the courts to achieve their progressive policy goals that would not be able to be passed by the people's representatives in the legislature because they are too radical: 
This is antithetical to the design of our democracy. The rule of law requires a sharp distinction between judicial and political offices. We need unbiased and open-minded judges who treat all parties fairly, whose decisions turn on the facts of each case and the texts of the laws that it is their job to interpret.  
That’s the kind of judge the American people deserve. It’s the kind of judge they expected to receive after then-candidate Donald Trump put forward the transparent process he’d use to select Supreme Court nominees. And it’s precisely who Judge Kavanaugh’s record demonstrates that he is.
Thanks to the leadership of Leader McConnell and Senate Judiciary Chairman Chuck Grassley, Judge Kavanaugh will receive a hearing and consideration before the Senate, despite the Democrats' scare and delay tactics and the fact-less attacks by radically liberal organizations.  Judge Kavanaugh is the example of the type of judge that should sit throughout our judicial system and the type of judge that President Trump has appointed: one who respects the limited role of the courts in our system of the separation of powers and who decides cases based on the law and the facts, not on the basis of preferred policy outcomes. 
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Monday, July 16, 2018

Cato Scholar Defends Kavanaugh

On Wednesday, July 18 the RNLA will be hosting its second-annual Summer Rooftop Reception featuring Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  Shapiro's Twitter feed is a must-read for those following the Supreme Court generally and right now on the Kavanaugh nomination. Shapiro will be giving a brief review of this year's Supreme Court term and discussing the ongoing efforts to confirm Judge Brett Kavanaugh.

 Shapiro has been a staunch supporter of Judge Kavanaugh since President Trump announced his nomination on July 9th.  Immediately after the announcement, Shapiro wrote:
Brett Kavanaugh is a strong pick for the Supreme Court.
In his 12 years on the D.C. Circuit, Judge Kavanaugh has demonstrated a devotion to legal text and constitutional principle. I admire his dedication to the Constitution’s structural protections for liberty, his steadfast defense of the rights of speech and religious conscience, and most notably his willingness to question the excesses of the regulatory state. He has repeatedly affirmed that judges serve not as the champions of faction, but as the readers of laws and adjudicators of disputes. 
One thing is for sure - the left will do and say anything to attack Judge Kavanaugh.  Shapiro has been known to take a more humorous approach when delving into hard-hitting issues and hits the nail on the head:
On the day of the announcement of Judge Kavanaugh being nominated to replace Justice Kennedy, Shapiro made a prediction in a Fox Business interview that he will "be on the bench the first week of October."  Just a few days ago, Senate Majority Leader Mitch McConnell announced that hearings for Judge Kavanaugh will be "in late August or early September" and that Kavanaugh, whom he described as an "all-star," would be confirmed in time to be on the court for its new term on October 1.  

We look forward to hearing more about Judge Kavanaugh and the Senate confirmation process from one of the leading commentators on this issue this Wednesday.  To RSVP for this event, please click here. 
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Saturday, July 14, 2018

Judge Brett Kavanaugh Respects First Amendment Rights; Skeptical of Campaign Finance Regulatory Overreach

One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.

The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:
His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . . 
Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties. 
In an opinion that preceded and foreshadowed the Citizens United and SpeechNow.org opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.
Judge Kavanaugh also wrote for the court in Independence Institute v. FEC in 2016.  The Institute for Free Speech also notes that when he has written upholding campaign finance regulations, he has done so with respect for the First Amendment and how government regulation can endanger the free speech rights of Americans, as he did in Bluman v. FEC, concerning the ban on foreign intervention in U.S. elections:
Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”
Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court.  As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation.  While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.
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Wednesday, July 11, 2018

Schumer's Antics Hurt the Senate and Aren't Really About the Merits on Kavanuagh

The argument du jour for Democrats seems to be that Judge Brett Kavanaugh made some sort of deal with President Trump so Trump can’t be indicted. As Senate Democrat Minority Leader Chuck Schumer stated:
Senate Minority Leader Charles E. Schumer (D-N.Y.) said at a news conference Tuesday that Trump “chose the candidate who he thought would best protect him from the Mueller investigation.”
The Washington Post concluded this was false and stated so in pretty strong terms:
But Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed.
Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law. 
We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.
There is some question as to Senator Schumer’s motive for this and other similar antics.  Schumer may not even care about defeating the nomination of Kavanaugh but may be making this and other ridiculous claims to delay his confirmation.  As the Wall Street Journal Editorial Board points out.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful thought. But Mr. Schumer knows defeating the judge is a long shot, especially after Maine Senator Susan Collins made encouraging comments Tuesday about Judge Kavanaugh’s lower-court opinion on ObamaCare and his statement in 2006 that Roe v. Wade is a binding precedent.
In any case, what Mr. Schumer cares about more than defeating Donald Trump’s nominee is to be the next Majority Leader. Toward that end he wants to help his 10 incumbent Senators running in November to navigate between a political base that demands opposition to all things Trump and broader state electorates that might come to think that Judge Kavanaugh is an excellent nominee.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">The best way to do that is to postpone a confirmation vote beyond Nov. 6. That way Joe Donnelly in Indiana, Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia wouldn’t have to take a politically difficult vote before Election Day.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">They and other Democrats like Claire McCaskill in Missouri risk infuriating Democratic activists if they vote for a nominee who will be described day after day on MSNBC and CNN as a threat to every right they have. On the other hand, the Senators might motivate Trump voters to turn out against them if they oppose Judge Kavanaugh. So Mr. Schumer’s main priority is delay, and delay some more.
Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful consideration. The motive for Schumer’s attacks is to delay, not about defeating Kavanaugh. They are about politics and damaging the “world’s greatest deliberative body.” Ironically, Senators of his own party may pay the price.
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Tuesday, July 10, 2018

Resources on Nomination of Judge Kavanaugh to Supreme Court

Yesterday evening, President Trump announced that D.C. Circuit Judge Brett Kavanaugh is his nominee to be the next Associate Justice on the U.S. Supreme Court.  During his speech in the nomination announcement, Judge Kavanaugh described his judicial philosophy:


 Judge Kavanaugh's Jurisprudence

  • Introduction to Judge Kavanaugh's judicial record, by Ed Whelan
  • Wall Street Journal's Editorial Board: "A Justice with a Record"
  • Brett Kavanaugh Said Obamacare Was Unprecedented And Unlawful (Prof. Justin Walker)
  • Judge Kavanaugh: Interpretive Principles as a Way of Life (Prof. Jennifer Mascott)
  • Rejects Agency Overreach
    • Judge Kavanaugh’s Record Against the Administrative State (Ed Whelan)
    • Cabining the Chevron Doctrine the Kavanaugh Way (Prof. Jeffrey Pojanowski)
    • Judge Kavanaugh has overruled federal agency action 75 times.
    • In White Stallion Energy Center LLC v. EPA, Judge Kavanaugh rejected EPA’s efforts to impose massive emissions regulations without considering costs. In a 5-4 decision authored by Justice Scalia, the Supreme Court agreed.
    • In Coalition for Responsible Regulation v. EPA, Judge Kavanaugh argued in dissent from denial of rehearing en banc that the Obama EPA’s burdensome greenhouse gas regulations for power plants exceeded its authority and that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.”  In a decision authored by Justice Scalia, the Supreme Court agreed.
    • In EME Homer City Generation v. EPA, Judge Kavanaugh held that the Obama EPA’s crossstate air pollution rule was unlawful and imposed excessive regulatory burdens on the states.
  • Respects First Amendment Rights
    • Institute for Free Speech's analysis of Judge Kavanaugh's First Amendment jurisprudence: Part 1 (campaign finance), Part 2 (campaign finance), Part 3 (pro-speech opinion on protesters' rights), and Part 4 (pro-speech dissents in Communications Act cases)
    • In U.S. Telecom Ass’n v. FCC, Judge Kavanaugh dissented from denial of rehearing en banc in a case upholding net neutrality. Judge Kavanaugh argued that the net neutrality rule exceeded the FCC’s authority and violated the First Amendment, arguing that “the Government must keep its hands off the editorial decisions of Internet service providers.”
    • In Emily’s List v. FEC, Judge Kavanaugh struck down FEC regulations that limited independent political spending by non-profit organizations, ruling that the regulations violated the First Amendment “right of citizens to band together and pool their resources . . . in order to express their views about policy issues and candidates.”
  • Mandates Accountability for Independent Agencies
    • In PHH Corp. v. CFPB, Judge Kavanaugh concluded that the structure of the CFPB—whose single director wields massive power but cannot be removed by the President except for cause—impermissibly invades the President’s power to supervise the Executive Branch. He noted that independent agencies “pose a significant threat to individual liberty and to the constitutional system of separation of powers.”
    • In Free Enterprise Fund v. PCAOB, Judge Kavanaugh concluded that provisions of the Sarbanes-Oxley Act insulating the PCAOB from presidential control by making its members removable for cause only by the SEC violated the Constitution.  In a 5-4 opinion written by Chief Justice Roberts, the Supreme Court agreed.

Personal Details
Judge Kavanaugh is the single most qualified person in the country to serve on the Supreme Court. His credentials are impeccable. He currently sits on the D.C. Circuit—the “Second Highest Court in the Land”—and serves as the Samuel Williston Lecturer in Law at Harvard Law School. He graduated from Yale Law School and clerked for Justice Kennedy.

Judge Kavanaugh has a proven track record as the type of jurist that President Trump has promised to put on the Supreme Court. With over 300 published opinions, what you see is what you get: a judge who will apply the law as written and enforce the text, structure, and original understanding of the Constitution.

Judge Kavanaugh’s respect for people threatened by government overreach has demonstrated itself again and again, and he has often rejected attempts by the federal government to impose onerous regulations on private citizens.

Judge Kavanaugh is a true “judge’s judge.” He’s a thought-leader among his peers on the appellate courts and deeply respected by the Supreme Court. The Supreme Court has endorsed his opinions more than a dozen times, including Kavanaugh dissents that have become the law of the land. His opinions are regularly cited by courts across the country. Of his 48 clerks, 39 have gone on to clerk at the Supreme Court. And one of his clerks (Britt Grant) is even on the President’s list of potential Supreme Court nominees.
Judge Kavanaugh is active in his community. He coaches CYO (Catholic Youth Organization) basketball, acts as a reader at his church, serves meals to needy families, and tutors children at local elementary schools.
·         

 Reactions to This Excellent Nomination

I look forward to meeting with Judge Kavanaugh and to the Senate’s fair consideration of his nomination, beginning with the work of Chairman Grassley and the Judiciary Committee. This is an opportunity for Senators to put partisanship aside and consider his legal qualifications with the fairness, respect, and seriousness that a Supreme Court nomination ought to command. 
President Trump has made an excellent choice in nominating Judge Kavanaugh to the Supreme Court.  He has impressive credentials, and I look forward to meeting with him to further consider his qualifications and commitment to upholding our Constitution as it is written.  This nomination is one of the most important items that we will consider this year.  I am hopeful that Judge Kavanaugh’s confirmation process will be fair and timely.
Esteemed by his colleagues, faithful to the Constitution, a record of thoughtful decisions, and already confirmed for the DC Circuit; Brett Kavanaugh has the right stuff.
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But 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. 

The RNLA looks forward to the Senate's careful consideration of Judge Kavanaugh's extensive record and prompt confirmation of this extremely qualified nominee.  While the Democrats were engaging in character assassination against the nominee before his name was known, they cannot attack Judge Kavanaugh's impeccable credentials.  

 Follow the RNLA on this blog, Facebook, and Twitter for the latest news and analysis of Judge Kavanaugh's record and nomination.

(This post will be updated.  Last update: 7/10/2018 at 9:00 AM.)
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