Tuesday, July 10, 2018

Judge Kavanaugh: Better than good - less than great - so much winning!

Before giving you my two cents on President Trump's nomination of Judge Kavanaugh to fill the seat on the Supreme Court that's been left by the departing Justice Kennedy, here are a few links that give good overviews. This one gives a good, brief, synopsis and links to his own opinions and further information, "8 Things to Know About Supreme Court Nominee Brett Kavanaugh", and this one by legal-eagle Johnathan Adler, (H/T Dana Loesch) "Justice Kavanaugh (Updated)" , gives a much more detailed overview, and a rich bevy of links for those who'd like to really dig into Kavanaugh's opinions. And for the deeply committed, here's a marvelous compilation of links to his opinions and snippets of them. But the one which I think gives the best insight into what makes Kavanaugh 'tic' judicially, is this, from "The Faculty Lounge": "A Window into Brett Kavanaugh’s Judicial Philosophy", which I'll pull from at the bottom of this post.

There's a link in Adler's post to a lecture that Kavanaugh gave, on "The Courts and the Administrative State", and "Separation of Powers During the FortyFourth Presidency and Beyond", which are tops on my reading list, but there's also a video of that lecture by Kavanaugh, which is quite interesting.

The lecture itself is not what I was hoping for, such as his commentary on what basis the 'Administrative State' has in the Constitution (IMHO, none that isn't tortuously stretched), but instead was instead his observations on the day to day realities of ruling on questions of law and regulatory law, and on that count it was interesting as commentary on Kavanaugh himself, and positively, I think.

One anecdote he related might be seen as a judicial restatement of the old Real Estate maxim, that "The three most important considerations in Real Estate are 'Location!, Location! and Location!", which as Kavanaugh relates:
"...Justice Felix Frankfurter used to describe as the three rules of resolving these kinds of cases: “(1) Read the statute; (2) read the statute; (3) read the statute!”
, which Kavanaugh later sums up as "Don't believe the hype that the words of the document don't matter", and that the letter of the law very much matters to judges who are attempting to interpret it, which is of course, reassuring.

The second point of his that stuck out to me, was this observation, that:
"Legislation is never one person sitting down and writing out a piece of legislation. It is the House, the Senate, and the executive branch—different parts of the House and Senate, different political parties—which write these laws together, and it is a compromise. When you read a statute and say this doesn’t make any sense, it is not because the person drafting it did not know what he or she was doing; it is because it was not a he or she drafting; it was a they drafting it.

So what does that mean? That means that the legislation’s precise terms were a compromise among multiple actors, and, as judges, if we do not adhere to that compromise, if we do not adhere to the text of the provisions, we are really taking sides and upsetting the compromise that was reached in the legislative process. So functionalists have come to agree with the importance of the text. I want to emphasize that the text is not the end-all of statutory interpretation. But the statutory text is very important in determining how to resolve questions whether the agency has violated statutory constraints on it."
I think that is a vital nugget, about the Law, and about Judge Kavanaugh's understanding of it... which is mostly, but not entirely, a good thing.

You see, what concerns me, and gives me pause about Judge Kavanaugh's judicial philosophy, is illustrated by this opening to one of his papers, 'Brett M. Kavanaugh, Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions,'
"Justice Scalia believed in the rule of law as a law of rules. He wanted judges to be umpires, which ordinarily entails judges applying a settled legal principle to a particular set of facts. I agree with that vision of the judiciary. But there are two major impediments in current jurisprudence to achieving that vision of the judge as umpire. The first is the ambiguity trigger in statutory interpretation. The second is the amorphous tests employed in cases involving claimed constitutional exceptions. We should identify and study these issues. Inspired by Justice Scalia’s longstanding efforts to improve the law, we all must continue to pursue the ideal of a neutral, impartial judiciary."
That also sums up why, although I greatly appreciated Justice Scalia, I was never really able to be a fan of his, as such Textualist/Originalist views comes far too close to viewing the law as a 'Rule of Rules', which is a very different thing than a 'Rule of Law'. While cautioning that I'm still in the early stages of studying up on Judge Kavanaugh, the impression I get is of a legal technologist, which is similar the mindset that guided Judge Bork to describe the 9th & 10th Amendments as 'judicial ink blots' on the constitution, and was a perspective which Scalia often similarly expressed in his opinions (which I addressed a few years back, in "What Would the Founders Do? Common Sense says WHO CARES!"), and which textualists, originalists and functionalists, express in ways that are disturbingly autistic towards the principles of Natural Law that our Constitution was derived from, and which those jurists I do admire, such as Justice Clarence Thomas, still stand up for.

And so, to get back to the post I mentioned above, from 'The Faculty Lounge', rather than just another laundry list of his opinions and inclinations, it offers a much better look into the judicial philosophy of Judge Kavanaugh, of how he views the Constitution, our Founders and (in its absence from his views) the concepts of Natural Law that drove them to frame, adopt and ratify our Constitution and its Bill of Rights. In "A Window into Brett Kavanaugh’s Judicial Philosophy", the author, largely drawing from a roundtable "A Dialogue with Federal Judges on the Role of History in Interpretation" that Kavanaugh participated in with a number of other Federal Judges,, notes that,
"...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:
That view is, as far as it goes, true... but it is only meaningful, if you approach those arguments and compromises, from a point of view that is informed by the concepts of Natural Law with which those differing opinions were formed, and debated. Absent that, Kavanaugh, like Scalia, and many other 'Conservative!' jurists, often deliver opinions that are strangely tone deaf, in regards to our Individual Rights, seeing in areas that are absolutely critical to their defense, only 'ink blots' upon our Constitution.

But, do not forget that President Trump could have done so much worse in his pick to fill this vacancy on the Supreme Court, and I think it's unfair for me to refer to Judge Kavanaugh in that manner. My first and cold read on Kavanaugh, at this point in time, is that he is a better selection than most, and will be very much better than Justice Kennedy, even as his decisions will more likely fall somewhere on a line between Justices' Scalia, Alito and Roberts, in his opinions, than with those of Justices Thomas & Gorsuch.

But in this day and age... that's still winning!

No comments: