Trump Picks Brett Kavanaugh

Published July 9, 2018

National Review Online

Congratulations to President Trump on his decision to nominate D.C. Circuit judge Brett M. Kavanaugh to the Supreme Court. I very much look forward to Justice Kavanaugh.

Judge Kavanaugh, 53 years old, has compiled an outstanding record during his twelve years on the federal court of appeals in D.C. On what is commonly regarded as the second-most-important court in the country, he has confronted a vast array of consequential constitutional and statutory issues and has written strong, influential opinions. His positions in numerous dissents were later adopted by Supreme Court majorities.

Judge Kavanaugh has been selected to fill the seat of retiring Justice Anthony Kennedy, for whom he clerked — along with Neil Gorsuch — 25 years ago. A graduate of Yale College and Yale Law School, Kavanaugh has dedicated his career to public service. He worked for several years in the Office of Independent Counsel under Ken Starr and then for five years in the White House of President George W. Bush, first in the White House counsel’s office and then in the role of staff secretary. During an interlude in private practice, he headed the Federalist Society’s Religious Liberties Practice Group and wrote two pro bono Supreme Court amicus briefs in support of the cause of religious liberty.

Kavanaugh is a lector at his Catholic parish, where he also coaches his daughters’ CYO basketball teams. He also volunteers with Catholic charities and teaches and mentors in local schools. He is as fit off the court as he is on it: The former captain of his high-school basketball team runs regularly and has won his court’s annual 5-K five times.

Here is an introduction to Kavanaugh’s judicial record:

Taming the administrative state. The D.C. Circuit has a particularly heavy caseload in the field of administrative law, and Judge Kavanaugh has won high marks for restraining the administrative state within legal bounds.

Kavanaugh is a strong critic of the Chevron principle of deference to administrative agencies — both of the foundation of that principle and of the manner in which it is often exercised. He has earned acclaim for “cabining” the Chevron doctrine by helping to develop an exception to it for “major questions” of policy.

In one of his early dissents, Kavanaugh argued that limitations on the president’s ability to remove the members of the Public Company Accounting Oversight Board violated the president’s executive authority. Invoking the principles of originalism advocated by Justice Scalia and Justice Thomas, Kavanaugh emphasized that “the constitutional text and the original understanding . . . are essential to proper interpretation of our enduring Constitution.” Two years later, when the Supreme Court embraced Kavanaugh’s dissent, Scalia and Thomas were part of the five-justice majority.

In a dissent earlier this year, Kavanaugh found the structure of the Consumer Financial Protection Bureau (a creation of the Dodd-Frank Act of 2010) to be unconstitutional. The concentration of power in, and the resulting threat to liberty from, so-called independent agencies within the executive branch — independent, that is, of the supervision and control of the president — have been tolerated because such agencies “divide and disperse power across multiple commissioners or board members.” But, Kavanaugh determined, the CFPB poses an unprecedented threat, as it is headed by a single unaccountable individual.

Enforcing the Second Amendment. Kavanaugh argued (in dissent) that the District of Columbia’s ban on possession of most semi-automatic weapons and its registration requirement for all guns violated the Second Amendment.

Protecting religious liberty. Kavanaugh argued (in Priests for Life v. HHS, again in dissent) that the HHS contraceptive mandate violated the religious-liberty rights of objecting religious organizations. He also rejected an Establishment Clause challenge to the prayers at the presidential inauguration and to the inclusion of “so help me God” in the official presidential oath.

Safeguarding free speech. On campaign-finance restrictions, a liberal academic who broadly supports such restrictions bemoans that “the only question is whether [Kavanaugh would] be more like Justice Scalia (voting to strike down more and more campaign limits) or like Justice Thomas (voting to do that AND strike down campaign finance disclosure laws).”

Ruling for the American worker. In dissents in immigration-related cases, Kavanaugh has opined that illegal-immigrant workers are not entitled to vote in union elections and that “mere economic expediency does not authorize an employer to displace American workers for foreign workers.” He has also recognized the government’s interest in “supporting American farmers and ranchers against their foreign competitors.”

Ruling against a radical abortion claim. In his one foray into the abortion arena, in a very contentious recent case involving a pregnant unaccompanied-alien minor being held in HHS custody, Kavanaugh objected to his court’s grant of relief to the minor. In his dissent, he complained that the majority concocted “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.” The majority’s decision, he said, “represents a radical extension of the Supreme Court’s abortion jurisprudence.” (Kavanaugh has also received criticism from some pro-life quarters for his opinion; as I have explained, I believe that criticism to be unwarranted.)

In the coming days and weeks, I will more fully explain Judge Kavanaugh’s record, and defend his nomination against attacks, here on Bench Memos.

More information about Judge Kavanaugh is available at

– Mr. Whelan, the president of the Ethics and Public Policy Center, is a regular contributor to National Review Online’s Bench Memos blog and is the co-editor of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.

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