A Window into Brett Kavanaugh’s Judicial Philosophy

Last night President Trump announced his nomination of Brett Kavanaugh to the U.S. Supreme Court. Judge Kavanaugh has served on the D.C. Circuit Court of Appeals since 2006, which means his long paper trail of judicial opinions will be closely scrutinized during his Senate confirmation hearings.

By any definition, Judge Kavanaugh is a conservative judge. His record on the D.C. Circuit leaves no reason to doubt that he will be more conservative than Anthony Kennedy, the justice he will replace. But the critical question is how much more conservative? Is Kavanaugh a traditional conservative like Chief Justice John Roberts, or will his voting record place him as far to the right as Neil Gorsuch and Samuel Alito? Might he even be as ultraconservative as Clarence Thomas?

To answer those questions the Senate will naturally look to Judge Kavanaugh’s appellate opinions. But the decisions of an intermediate appellate court judge can only tell us so much. Although a circuit judge may chart a liberal or conservative course on novel issues, the circuit courts must respect and follow existing Supreme Court precedents. Kavanaugh’s rulings thus don’t give us the full picture of his judicial philosophy. Only when he takes his seat on the highest court in the land will we find out what he really thinks.

The 2011 George Washington Roundtable

Kavanaugh offered some hints, however, about his core judicial philosophy during a public appearance at George Washington University in 2011. He participated with five other federal judges in a roundtable conversation moderated by Professor Amanda Tyler. The George Washington Law Review later published a transcript of the engaging discussion, under the title “A Dialogue with Federal Judges on the Role of History in Interpretation,” which you can find here.

To a striking degree, Judge Kavanaugh’s 2011 remarks suggest that his judicial philosophy most closely resembles that of the late Justice Antonin Scalia, a frequent ally of Justice Thomas.

Although the roundtable’s topic was the importance of history in judicial interpretation, Judge Kavanaugh took a contrarian view, indicating that he does not think historical context is all that helpful to judges. During the dialogue, he pointed out that the framers were not “all of one mind” and in fact had “wildly different views.” As an example of the diverse viewpoints expressed at the Constitutional Convention, Kavanaugh noted the stark contrast between how Alexander Hamilton of New York and George Mason of Virginia viewed the proper role of the federal government.

According to Kavanaugh, the framers’ diverse and often conflicting opinions should make judges skeptical of historical evidence, even in the case of a document as renowned and influential as the Federalist Papers. As the judge explained during the roundtable:

“The point being, be careful about even The Federalist . . . point of view. That’s not the authoritative interpretation of the [Constitution’s] words. You’ve [also] got to be careful about some of the ratification debates. You’ve got to be careful about different people at the Convention itself. They had different views.” 

For Kavanaugh, the most pertinent historical fact is that the Constitution came about as the result of political compromise. He thus warned that it is a mistake to rely on historical evidence that might give one framer’s interpretation of the Constitution’s meaning more weight than others. As he stressed to the roundtable: 

“[W]hen you recognize the [constitutional] compromise, it’s all the more reason to stick to the words because . . . there’s going to be two sides to that, and there’s going to be history that pushes both sides. And you’ll see often times in cases one side’s historical debate quotes  ‘and the Framers meant this to mean X.’ Well, actually the provision was a compromise between people who wanted one way and people who wanted another, and you’re just quoting one side. . . . So when there’s compromise, all the more reason for me to stick as close as you can to what the text says.”

Under Judge Kavanaugh’s approach, history has value only if it helps judges “figure out what the words meant.” But since almost every word in the Constitution resulted from some sort of compromise, history ultimately offers very little of value to judges according to Kavanaugh. But that conclusion did not trouble him at all. History, he maintained, isn't really all that necessary in any case because “the words actually tell us a lot more than we often assume. . . [T]hey’re not so complicated. It’s not mystifying to actually read this and get some meaning out of it.”

Above all, Judge Kavanaugh made clear the tremendous interpretive importance he places on the Constitution’s text:

“The text of the document is not just something that we’re supposed to look at just for interest. It’s law. It is binding law. It says in Article VI it’s the supreme law of the land, and it is binding on us. Those words in the document are binding on us in all three branches of the federal government, not just as judges, unless it’s amended.”

In Scalia’s Mold

To the extent that the 2011 roundtable provides a window into his thinking, Judge Kavanaugh’s judicial philosophy bears all the hallmarks of Antonin Scalia’s judicial philosophy.

As Justice Scalia famously declared, “The text is the law.” Both an originalist and a textualist, Scalia insisted that courts should resolve constitutional disputes by ascertaining the original public meaning of the Constitutional text. Likewise, in statutory cases, he maintained that the courts should stick to the text and reject the use of legislative history, which he derided as the “last hope of lost interpretive causes, that St. Jude of the hagiology of statutory construction.” For example, in a 2007 case he rebuked the majority’s reliance on legislative history and announced in his dissent that “today’s decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.”

Kavanaugh’s 2011 remarks embrace Scalia’s interpretive approach and apply it to the Constitution’s text. Accordingly, to the extent the roundtable discussion reflects Kavanaugh’s current views, it seems likely he will build a Supreme Court voting record every bit as conservative as that of Justice Scalia, which in turn would position Kavanaugh much closer to Justice Thomas than to Chief Justice Roberts. 

Replacing Kennedy with a Scalia-type justice will produce a seismic change in the Court’s center of gravity on social issues. Justice Kennedy provided a reliably conservative vote on economic and regulatory issues, but he sided with the liberal wing on abortion, same sex marriage, juvenile sentencing, and the death penalty, using reasoning and sources that went far beyond the Constitution’s text. Kavanaugh’s laser-like focus on constitutional wording will likely place in jeopardy all of the 5-4 decisions in which Kennedy sided with the liberals.  

The Trump Judicial Legacy

In light of the nomination’s impact on the Court’s ideological balance, conservatives have every reason to applaud the Kavanaugh nomination along with all the other Trump judicial appointments. Since taking office in January 2017, President Trump has placed on the bench 42 federal judges, setting a record-breaking pace in the process. As long as Republicans maintain their Senate majority in the November elections (which the latest polls indicate is highly likely), Trump will make many more appointments before his first term ends two and half years from now. Although he has departed from some orthodox conservative positions, particularly regarding NATO, free trade, and Russia, no conservative can fairly criticize Trump’s judicial selections as a whole. Thus far his judges have been staunchly conservative and the Kavanaugh nomination is fully consistent with that pattern.

The bottom line is the Trump administration is putting in place, at every level of the judiciary, the most conservative federal bench since the 1920s. As a result of the lifetime tenure guaranteed by Article III’s “good behaviour” clause, the possibility exists that a critical mass of conservative judges will control the federal judiciary well into the 2030s. 

No one knows that fact better than Trump himself. In a March speech, he emphasized that the judicial branch is a central focus of his administration.

“When I got in, we had over 100 federal judges that weren’t appointed. I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that? Maybe he got complacent.”

Of course, the actual answer to Trump’s question is that the Republican-controlled Senate blocked many of Barack Obama’s judicial nominees, including Merrick Garland.

In any case, Trump clearly recognizes the historic opportunity before him:

“It was like the gift from heaven. We were left judges. They are the ones that judge all your disputes. They judge on what’s fair on the environment and what’s not fair. Where they’re going to take your farms and factories away and where they’re not.”

He is absolutely correct about the judiciary’s importance. By the time his presidency is over, Donald Trump could shape the federal judiciary more profoundly than any president since Franklin Roosevelt. 

Comments

[Anon]

I remember when Nora Demleitner defended Alito. I bet she doesn't get invited to many liberal cocktail parties. At the Alito hearing, she said, "Now, since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation, or of his generation, and he is a man of great decency, integrity and character."

"Let me explain to you why I believe that Samuel Alito deserves to sit on the highest Court and why his confirmation will, in fact,not pose a threat to the rights of women, to the rights of minorities,immigrants, or other vulnerable groups." "Now, Judge Alito does not have a political agenda."

"e will be able to strike a practical balance that is informed, but not predetermined by his background.And for all those reasons, I believe very strongly that he deserves to be confirmed as the Court’s next Associate Justice."

Wow,I certainly hopes that no liberal makes such a stupid statement about Kavanaugh.

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

If I were President, I would appoint somebody who would be willing to discharge my law school student loan debt through bankruptcy. I am a vainglorious kind of man. The hell with the country.

[Anthony Gaughan]

I just want to point out that I qualified my statement above that "no conservative can fairly criticize Trump’s judicial selections" with the words "as a whole." Some conservative commentators have criticized (or at least expressed concerns about) specific opinions of Judge Kavanaugh and other Trump appointees. But it's also clear that, on balance, conservatives and libertarians have greeted Trump's nominees with great enthusiasm.

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

The only thing stopping this country from tumbling into a dictatorship is a Prosecutor. So what did our Dear Leader do? He forum shopped a judge. In Illinois we have SOJ motions...substitution of judge. Trump filed the ultimate SOJ motion.

[anon]

So, the question is: what is the “liberal” judicial philosophy?

During the last administration, we heard a lot about feelings, but not so much about judicial philosophy.

President Barack Obama stated, in May 2009: “I will seek . . . someone who understands justice and isn’t about some abstract legal theory or footnote in a case book . . . I view that quality of empathy of understanding and identifying what people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Is this the “liberal” judicial philosophy? If she feels sympathy because a litigant possesses the ethnicity or gender or some other invidious discriminatory category that she may choose to favor, then she should find a way for that person to win the case? When dealing with vague clauses, like "due process," and "equal protection," it is quite easy, actually, to find that a particular law offends someone's dignity as a human being, and therefore cannot be upheld. Very reinforcing for that "feeling" you get when you stick to the groups you despise, right?

Do we want the SCOTUS to decide our policy disputes, and legislate under the pretense that vague and ambiguous phrases like "due process" and "equal protection" -- phrases that are interpreted so differently over time and based on the identity of the litigant and the judge — permit it? Must we accept that “legal theory” isn’t what a just decision on the SCOTUS should rightly be all about? Must we accept that a judge should base her judgment on the judge's feelings about who she “identifies with” and who she doesn’t? The tolerant, open-minded, ever so kind and empathetic “liberals” that dish out their bile every night on the “news” programs portary a version of reality that many find just as scary as the liberals find “conservatives” to be.

Personally, I don't like the nominee's position (as I understand it) on warrantless digital searches. I don't like his position on many issues, I suspect. But, I don't think he will be making decisions based on how he feels about the person before him. Is that too much to ask of others?

I want freedom in this country. When I ask myself who is more likely to tell me how to live and how to think and what I can say and what I am not to say, I think on balance the verdict will not be in favor of "progressives." I would like to believe that the Bill of Rights guarantees certain freedoms that were written down in fairly clear language — freedom of speech comes to mind — but "progressives" are increasingly ignoring those provisions, while touting decisions based, for example, on the “dignity” interest of others.

When it comes to the freedom to speak, “progressives” frequently line up to restrict it. The freedom to speak your mind is their favorite target. May you speak in this country if you are a disfavored "foreigner”? (Wilson knew about this sort of speech suppression). Do you have the freedom to refuse to bake a cake and adorn it with a swastika (or MAGA), etc.? Nah. One may be tempted to resort to the courts. What should be the liberal’s judicial philosophy?

If you want to have an abortion and live in a red state, perhaps you rightly fear that your right to end the life inside you may be more regulated than before. THis is not an irrational concern.

There are arguments that our society has not yet resolved, and that is true for all people in this country and the causes they care about. The "liberals" want to protect some groups and some rights, but not others. The "conservatives" are just the same.

In this debate, is it too much to ask that people stop just reacting in a knee-jerk matter, especially on a blog like this (where thinking people supposedly debate issues) and actually dig into the nominee's judicial philosophy before critiquing it?

The discussion above is just way too superficial to even begin the conversation: saying that a judge who finds ambiguity in the compromises made by the founders reveals little about their collective “intent” is not much of an attack, frankly. Can’t you do better?

You mock the notion of relying where possible on the plain meaning of the text. Ok, so, argue your case, instead of constantly throwing stones and never saying anyting positive about what you believe to be “a conservative.”

If you ALWAYS find stories that illustrate what you believe to be the failings of one political party and you nearly always ignore the failings of your own, then you are just a member of an unthinking mob.

So, why not just do as the mob does and trot out the abortion issue? That argument has been used every time since Roe. It doesn’t work, but, who cares? It gets the mob going and you can ignore all the issues that require objectivity and actual thought.

[anon]

Let me help you out a little bit.

In 2009, Prof. Michael Dorf explained: "[If] one thinks that the legal realists have it right, then a broad capacity for empathy is crucial to judging. According to the legal realist view, in filling in the law's gaps and ambiguities, a judge will necessarily be making value-laden decisions that derive in part from her background and experience."

So, there you are. Make it up as you go along, based on your unique personal history. Favor your feelings about your group identity, and the identity of the litigants before you. If you can empathize with the litigant, make up a rule to favor that litigant! Write the law based on your feelings, about yourself, about other people and about proper public policy!

That's a terrific "judicial philosophy"! So astute and deep and sophisticated! Who could fathom it?

Makes one a hero to some groups, for sure.

[Concerned_Citizen]

"The bottom line is the Trump administration is putting in place, at every level of the judiciary, the most conservative federal bench since the 1920s."

Are these really more "conservative" judges than President Obama's judges appointed were "liberal"?

"President Trump has placed on the bench 42 federal judges, setting a record-breaking pace in the process"

Not sure that Time's data are accurate; also, note that you're using both 42 judges placed today, with "record breaking pace" that was from last December.

In any event, it appears GW Bush had placed nearly 60 federal judges in his first 18 months and President Clinton 72, so the "record breaking" is a very misleading factoid for a fact-based writer to be using given the context in which you provided it.

By the way, President Obama's record at this same point wasn't exactly horrible, with some 37 confirmed (vs. the 42 mentioned for President Trump), one of which (like for Trump) was a Supreme Court associate justice, and another Supreme Court associate justice confirmed in Mr. Obama's 19th month).

"the Republican-controlled Senate blocked many of Barack Obama’s judicial nominees"

Sure thing. As other presidents found themselves blocked from time to time. But is this anything more than a meaningless statement when viewed in context? It's not as if he got fewer than average judges confirmed overall (below last 3 8-year presidencies).

Judicial confirmations:
President Obama: 359 total (329 Ar. III judges and 20 other specialty court judges).
President GWBush: 331 total (325 Ar.III judges and another 6 specialty court judges).
President Clinton: 386 total (378 Ar.III judges and another 8 specialty court judges).