President Trump may like to spring a surprise on the news media, but with his announcement Monday night for the Supreme Court he went with the safe choice.
His pick of Brett Kavanaugh, a federal appeals judge in Washington, may have run counter to his instincts against picking inhabitants of the D.C. swamp, or those with deep connections to the Bush administration. But in elevating his reason over his impulses, Trump has picked a nominee who will work to limit the great threat to individual liberty today: the administrative state.
Kavanaugh will provide thin gruel for Democratic opponents. He has impeccable credentials: he graduated from Yale College and Law School (where one of us overlapped with him as a student), clerked for two appeals judges, and then the U.S. Supreme Court for the departing Justice Anthony Kennedy.
He served as a prosecutor on Kenneth G. Starr’s independent counsel investigation into Whitewater (which will twist Democrats demanding Trump’s impeachment into knots), as an associate counsel and then staff secretary in the George W. Bush White House (where we both worked with him), and then as a judge for more than a decade on the D.C. Circuit appeals court.
Even though Democrats will go to any lengths to stop Kavanaugh, he presents them with few vulnerabilities.
He has written no opinions on their holy-of-holies, abortion or gay marriage. To the extent that he has written on these topics, he has observed that the government might have a compelling interest in providing contraceptives and that an alien might have a due process right to an abortion.
He has written no major opinions on free speech or religion, nor has he displayed any sympathies for the criminal defense bar.
Instead, Kavanaugh’s creates a deeper challenge to liberalism: rolling back the administrative state.
Progressives have evaded the Constitution’s checks and balances on the federal government by unceasingly expanding its regulatory reach, transferring the actual authority to make the rules from Congress to unelected bureaucrats, and then demanding that judges defer to the results virtually without question.
It is through this judicial-agency industrial complex where, as the Obama administration displayed on everything from immigration to education to health care, progressives have imposed their views on the American people and the states with little democratic accountability.
Kavanaugh has repeatedly challenged the foundations of this runaway state. He has written significant opinions overturning two misbegotten examples of this dynamic.
In the first, he found the Consumer Finance Protection Board (CFPB) violated the Constitution because it vested all power over consumer finance in the country in one person, but insulated him from removal by the president.
In the second, he struck down a new federal accounting board, because it too was insulated from presidential control, even though Article II of the Constitution vests the president, and the president alone, with the duty to see that “the Laws be Faithfully Executed.”
In both cases, Kavanaugh has made clear that he would put the text and history of the Constitution first, and mistaken precedent second, which should cheer the hearts of conservatives.
Like Justice Neil Gorsuch, Kavanaugh will pursue the administrative state into the weeds. He explained his views at length in a 2010 book review in the Harvard Law Review. Basing his argument on the constitutional separation of powers, he found, unremarkably, that the function of the courts is not to legislate, but to interpret and apply, statutes.
That is not difficult to do when the statute is clear. But what if it is ambiguous? Under what is known as the “Chevron” doctrine, courts have been expected to defer to a reasonable interpretation of the Executive branch agency that administers the statute. Deference is due when a statute is “ambiguous,” though not when it is “clear.”
But, Kavanaugh argued, how are courts to understand the “clear/ambiguous” dichotomy? They must do so in order to give the agency the deference due to it under Chevron. But the dichotomy seems to be more like a gradient than a sharp, bright-line distinction. How much “clarity” does a statute need to be considered “clear” and “unambiguous”?
In the end, and perhaps surprisingly, Kavanaugh’s critique of Chevron is fundamentally directed against the expansion of executive authority and in favor of broader congressional control.
Democrats usually present themselves as defenders of Congressional power, in opposition to Republicans, whom they portray as apologists for presidential power.
If Democratic senators chew on Kavanaugh’s opinions, however, they will find that he would return substantial power to lawmakers, and take it back from bureaucrats managed by the president.
What Kavanaugh does not have is a track record on the social and cultural issues that deeply divide the nation.
If Democratic senators were to put good judicial policy over partisan politics, they would rush to embrace a nominee who has no established positions on abortion, gay marriage, or privacy rights.
They followed such as strategy to great success with Justices Kennedy and David Souter, who were thought to be conservatives by Presidents Reagan and Bush, but who eventually came to uphold Roe v. Wade and other liberal landmarks.
But the left wing of the Democratic Party fears that these precedents will fall when Kavanaugh joins the court to form the first five-justice conservative majority in living memory, and will pull out all the stops to prevent it.
In the end, though, Kavanaugh’s credentials and track record will only make it all the easier for Republicans to confirm him to the Supreme Court and portray his Democratic opponents as obstructionist partisans.
Robert J. Delahunty is the LeJeune Professor of Law at the University of St. Thomas School of Law in Minneapolis.