An orthodox legal life and the case for Judge Kavanaugh

I confess I don’t understand President Trump; his methodology seems aimed at doing the exact opposite of what others advise or expect. So it is with his selection of Judge Brett Kavanaugh, 53, for the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.

Kavanaugh, at first blush, is just another white guy from Yale (from which he graduated) or Harvard (where he teaches part-time). Trump was expected to pick someone less orthodox — perhaps Judge Amy Coney Barrett, 46, from Notre Dame, a top school renowned for its more working-class origins.

{mosads}If the unexpected becomes expected, then, perhaps, it’s the expected that appeals to our disrupter-in-chief.

Politically, Brett Kavanaugh does not stand out in a GOP line-up. No surprise, then, that the automatic Democratic opposition spray-paints him as a Republican “foot soldier.” You know, the fella who shows up for any and every conservative cause.  

Even at Kavanaugh’s young judicial age, he has an impressive share of Republican causes: co-authoring independent counsel Kenneth Starr’s report on Bill Clinton, helping secure the Supreme Court’s award of the presidency to George W. Bush, two terms as an associate White House counsel and special assistant/staff secretary to President Bush.

He also has been active in the Federalist Society, the conservative organization founded in the 1980s to promote judicial restraint and faithful adherence to the Framers’ conception of a limited government.

President Trump made the extraordinary pledge during the 2016 campaign to choose judicial appointments from a list largely authored by the Federalists. In appointing Neil Gorsuch upon Justice Antonin Scalia’s death, and in nominating Judge Kavanaugh now, he has kept that promise.

The Federalist Society has done some genuine good. It transformed legal education by sponsoring lively, balanced debates; for the legal profession, it deepened the pool of possible appointees. That said, for the elected president to limit public appointments to a non-elected private organization with a distinct ideology is highly questionable. Heck, President Reagan didn’t even want the American Bar Association’s recommendations.

In accepting the nomination, Kavanaugh began by declaring that “no president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” One suspects this claim was inserted into his remarks by someone else; it plays right into the shrill partisan chorus shouting overly broad, overly glib claims that the confirmation of Kavanaugh or anyone like him will lead to the wholesale reversal of prior cases governing abortions, voting rights, same-sex marriage and health care. The latter is especially ironic since Judge Kavanaugh has taken criticism from the right that his theory of invalidity for the Affordable Care Act was too anemic.

In any event, these claims bear zero resemblance to the actual work of the Supreme Court and to the way legal reasoning is accomplished and expressed.

Because of such hyperbolic claims, it has become customary for nominees to say next to nothing at confirmation hearings. Substantive questions are avoided with the canned response that it would be improper to answer because the issue might come before the court again. No doubt this will be a characteristic of these proceedings, too, except that Judge Kavanaugh’s record is so deep — closing in on more than 300 appellate opinions, as well as substantial scholarly writing and speaking — that he may find it more difficult to engage the dodge indulged by less prolific nominees of both parties.

So what will the Senate Judiciary Committee discover when it emerges from the genuinely erudite work product of Judge Kavanaugh? Just this: He deeply respects the constitutional order and, in particular, he understands how, as he has said, “a judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.” Any serious study of his writing will reveal these observations are not casual bromides.

Judge Kavanaugh also is his own man. He is neither Scalia nor Kennedy.

Justice Scalia’s attachment to original understanding gave welcome support to the rule of law but often ignored the limitations of language — most notably, ambiguity. Similarly, Scalia’s theory of interpretation left unexplained how he himself ignored originalism when it produced an unwanted result. Judge Kavanaugh’s writing honestly deals with statutory ambiguity, recognizing that it can leave the unelected bureaucracy with a level of discretion that can effectively defeat democracy itself.

He conscientiously acknowledges the difficulty of discerning where the Constitution allows exceptions. Constitutional rights are not absolute — freedom of speech does not protect libel or obscenity or perjury — but knowing how to make careful exception is the core of the Supreme Court’s judicial task. Justice Kennedy’s style, when confronted with the difficult question of exceptions to right claims, was to write aspirationally of a world where exception would be unneeded. But back on terra firma, this just left tough questions unanswered. Judge Kavanaugh does not attempt a glib response but, instead, candidly asks, “How do we determine what the exceptions are? … That’s the battleground. That’s the difficulty. That’s the threat to the rule of law as a law of rules. That’s the threat to the judges as umpire.”

On his own merits, Judge Kavanaugh deserves to be confirmed by a vote approximating that given Justice Kennedy: 97-0. Of course, today that won’t happen; too many public officials subordinate merit — as well as duty to a hypothetically deliberative Congress — to party loyalty. Presidential nominees also can win or lose for reasons extraneous to themselves; for example, a president’s own standing.

Perhaps it came to the attention of President Trump that Judge Kavanaugh has expressed reservations about some practices of earlier independent counsels. But those reservations were sound; they in no way hint that he views presidents as above the law.

After all, that clearly would be unorthodox, and Judge Kavanaugh is President Trump’s orthodox nomination. A very fine one.

Douglas Kmiec served as U.S. ambassador to Malta from 2009 to 2011 and as head of the Office of Legal Counsel in the Reagan and George H.W. Bush administrations. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.