Four thoughts on Judge Kavanaugh

[Update: I wrote this post below after reading a selection of Kavanaugh’s work: his Minnesota Law Review article, Seven-Sky on the ACA, and his net neutrality opinion. But then I read more of his work, which indicates a lack of deference to precedent and a relatively extreme set of views favoring the increase of presidential power. See my Slate pieces on Roe with Dahlia Lithwich here and on presidential power here.]

I am about to write some cautiously positive things about a judge on the short-list for a Supreme Court seat. This is not an endorsement of the process of making that short-list, of how we got to this moment, or of this judge for the appointment. I’m simply trying to read and reflect on a limited set of his work in areas I study.

Caveat: I don’t think the Senate should confirm any single nomination for the Supreme Court at this moment. No President facing concrete evidence of high crimes has ever nominated a Justice, mainly because Justices did not retire in the middle of such a crisis. That will be part of Kennedy’s legacy, and it doesn’t reflect well on Kennedy. I think it would be more appropriate to wait, to nominate a Justice with broad bipartisan support, or to forge a bipartisan deal to expand the Court to 12 with a mix of four appointments from a consensus group of moderates.

But I am not holding my breath. And I am also concerned about unfair attacks on good judges, even if I don’t agree with those judges on many important legal issues. And I am concerned that our politicized confirmation process of scouring a judge’s record for attack fodder has had a deeply regrettable effect of encouraging judges to write less, say less in confirmation hearings, and limiting judicial independence with too much fear and favor.

So here are four thoughts on Judge Kavanaugh. I’ve never met him, but I’ve thought of him as a respectable, independent-minded, highly qualified mainstream conservative judge for a while. I deeply admired his opinion in the ObamaCare case. After looking back at some of his decisions and his writing, I still think so. I have not reviewed his enormous body of work, so this is merely a partial review. It is not an endorsement of a Supreme Court nomination or confirmation, merely an appreciation for some of his central work. The ObamaCare Case (Seven-Sky v. Holder, 2011) 

In 2011, the D.C. Circuit decided that the ACA was constitutional in a 2-1 decision (read here). Judge Silberman, a Reagan appointee, with Judge Edwards, a Clinton appointee, decided that Congress had the power under the Commerce Clause to enact an individual mandate to buy insurance. Kavanaugh dissented, but not in the way one might assume. I am oversimplying his 60+ page dissent, but the bottom line is relatively clear. He observed that the individual mandate was a tax, even if it was not called a tax explicitly, because it was implemented through the tax code, and it was assessed and collected by the IRS. And as a tax, it is covered by a statute, the Anti-Injunction Act, that says a tax can be challenged only after it has been imposed, and not enjoined earlier:

For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.

His dissent was limited to a jurisdictional question, but the substance of that procedural move was massively significant. If the individual mandate is a tax, then it would almost certainly be covered by Congress’s power to tax. And once a court had jurisdiction to hear this claim, Kavanaugh’s approach would be a second way to find the ACA and its individual mandate constitutional.

I remember the day this decision came down, and I remember reading all of these opinions. I felt most reassured by Judge Kavanaugh’s approach, because it seemed the clearest common-sense approach: if it walks like a tax, quacks like a tax, and is collected like a tax, it’s probably a tax. Kavanaugh did not follow formalistic textualism, and he didn’t adopt an interpretation common in conservative circles (and not a crazy view) that the Democrats deliberately avoided the word “tax” for craven political reasons, and they should face the legal consequences for that textual choice.

Kavanaugh and conservative judges were under enormous political pressure from the right to strike down the ACA, to establish a judicial foundation to legitimate an eventual 5-4 Supreme Court decision to strike it down. Kavanaugh did not buckle under that pressure, and I respected him greatly for that. To me, it was an example of the judging ideal, setting aside ideology and party politics, and just trying to get the law right.

And guess what happened a year later? Justice Roberts had initially sided with the conservatives to strike down the ACA, but relatively late in the deliberations, he changed his mind, and adopted Kavanaugh’s approach that Congress had exercised its taxing power validly. Roberts’s switch came so late that the concurrences and dissents had to be flipped in their wording, and when they published the decision, those re-wordings were incomplete. It was clear the decision had been a late switch by Roberts. And Kavanaugh’s approach may have helped shape Roberts’s decision, another model for judging despite political pressure.

2. Major Questions Doctrine and Limiting Deference to the Executive

In the follow-up challenge to the ACA on textualist grounds, Roberts, along with Kennedy, voted to uphold the crucial federal exchanges, in a 6-3 decision in King v. Burwell. The challenge was based on a narrow textual reading, and even though I disagreed with that textual approach, this challenge was not crazy at all. The statute referred explicitly to exchanges “established by the State,” and not to the federal government. Despite this textual problem, Roberts and the majority held that narrow textualism was not appropriate when the case of statutory interpretation raises “a question of ‘economic and political significance.” The interpretation also should not be left to an administrative agency.  It is “the Court’s task to determine the correct reading of [the provision… When deciding whether the language is plain, the Court must read the words ‘in their context and with a view to their place in the overall statutory scheme.'”

This approach was purposivism — looking at the overall purpose of a statute — rather than narrow textualism. And it also was a more sensible interpretation than the more common and expected Chevron approach: defer to an agency to interpret the statute. On a “major question” of massive political and economic consequence, it is inappropriate for this interpretation of an act of Congress to be worked out agency by agency, administration to administration. It is the judiciary’s duty to say what the law is.

Kavanaugh has appropriately followed this precedent in a net neutrality case here. He would have invalidated the FCC’s 2015 net neutrality rule under the Obama administration. I can’t say I agree with his conclusion on that specific question, but I appreciated his bigger picture jurisprudence for big political questions. Kavanaugh was applying the major questions doctrine to a major question, giving an independent judiciary the job it is supposed to do: interpret the law.

The bottom line of Chevron is to give more power to the executive branch’s agencies to interpret the law, and less power to judges. The basic argument for Chevron, and I am oversimplifying, is when Congress uses ambiguous language, it is implicitly delegating interpretation to the agencies, and that delegation makes sense because of focused expertise in the area. I have always believed that this delegation is sometimes true, and deference is sometimes appropriate, but not always, and it should not be assumed with a general default rule of deference. In fact, judges are better experts in the area of statutory interpretation than agencies. Defer to agencies on policy, not statutory interpretation.

I am not a fan of Chevron. I am also not a fan of Neil Gorsuch (see here). But I did praise Gorsuch’s bold and powerful critique of Chevron and excessive power by the executive branch. Kavanaugh has put limits on Chevron deference by applying the major questions doctrine exception in a case that seems appropriate. Chevron may not seem like the most important legal issue in America, but putting limits on executive power is big. And I find Kavanaugh’s decision to be a counterpoint to those who think he only favors of executive power.

3. Investigating Presidents?

Kavanaugh’s 2009 article received a lot of attention over the course of the weekend. The Washington Post ran this story: “Top Supreme Court prospect has argued presidents should not be distracted by investigations and lawsuits.”

When I first read some passages of his 2009 article, I found some of them alarming: “The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”
“[W]e should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.”

But here’s the rub: He was suggesting that Congress pass a statute that would protect the President. He did not write that the Constitution commands such immunization. That’s a crucial difference for a judge:

“It would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones-– that presidents are not constitutionally entitled to deferral of civil suits– may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.

“Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President–while in office–from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”

I don’t agree with Judge Kavanaugh here, but these were mainstream views in 2009, and they remain mainstream. Keep in mind that he was writing during the Obama administration, so the immediate context would have been publicly supporting more protection for a Democratic president. Those first passages sound worse in 2018, but in full context of the article and in the context of 2009, they are more reasonable and less worrisome. I come away thinking that Kavanaugh would follow the precedents of U.S. v. Nixon (presidential records can be subpoenaed) and Jones v. Clinton (a sitting president can be sued civilly), but he would also rule that a sitting president cannot be tried criminally until he is out of office. And I happen to agree, more or less, with all three of those propositions. Would Kavanaugh agree that the Constitution permits a sitting president to be subpoenaed for a live interview? I do not know, and frankly, that ruling is not going to make a massive difference in this current investigation. In fact, I think Mueller should move forward without the massive delay and political controversy of forcing Trump to sit for an interview.

Kavanaugh’s footnotes make it clear that the law should be worked out to accommodate prosecution once out of office:

Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office. For fairness’s sake, this proposal may also require extension of the relevant statutes of limitations.

Again, those views are mainstream, and he suggests them with appropriate balance and caution. And though I disagree with his proposed statute, I am relieved to know that he thinks a statute would be necessary, because the Constitution does not provide for such immunities in itself.

4. It’s refreshing to have a judge with a real record

My final note here is that Kavanaugh is not a judge who avoided saying what he believes. In this era of mutually assured destruction, a.k.a. the politics of personal destruction, too many judges avoid controversy, and to avoid controversy means not really participating in law. Confirmation hearings are increasingly ridiculous and embarrassing. No, I’m sure those judges had never thought about Roe v. Wade before, or they don’t have a view on Brown v. Board of Education. As I’ve written before, we desperately need more deliberation and not less. Judges who dodge questions should be penalized, and judges who answer questions in unpopular but well-reasoned and reasonable ways should be rewarded. I appreciate that Kavanaugh has sometimes offered risky views but as far as I can tell, he has done so in admirably well-reasoned and reasonable ways. I know that he would rule in ways that will upset me. He, like any of the short-listers, would restrict abortion rights. I’m not naive. And if he is nominated, some would vote against him for that reason.

But if we are going to emerge from the Trump era with the rule of law and a degree of judicial independence, both sides need to change their approach to judicial nominations. Kavanaugh seems to be a judge who is not extreme, but reasonable and mainstream. And while I would prefer Justice Garland, I can also appreciate that a highly qualified mainstream judge is more than I have any right to expect in 2018. At this moment, an all-out battle against Judge Kavanaugh would be unfair and counterproductive.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

14 thoughts on “Four thoughts on Judge Kavanaugh”

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