Say what one likes about President Donald Trump, but there has generally been very little daylight between the intentions he expressed in 2016 and his decisions in office. As a candidate he vowed to nominate federal judges “in the mold of” Justice Antonin Scalia, and he has done so. The nomination of Judge Brett Kavanaugh, the president’s second nomination to the Supreme Court, continues that pattern.
Kavanaugh, 53, has written a great deal, and Senate Democrats are certain to find every turn of phrase in his extensive oeuvre that can reasonably—or unreasonably—be read in an unfavorable light. After graduating from Yale and Yale Law and clerking for appeals court judges, Kavanaugh worked for Ken Starr when the latter was independent counsel during the Clinton-Lewinsky investigation and was a chief author of the Starr Report—which, despite accusations to the contrary in 1998, was a fair, thorough, and nuanced work of analysis. He then worked as an attorney for President George W. Bush, and later as White House staff secretary, one of the most demanding jobs in Washington.
President Bush nominated Kavanaugh to the Court of Appeals, D.C. circuit, in 2003, though he wasn’t confirmed until 2006 thanks to the timeworn Democratic habit of inventing reasons to object to sound Republican nominations. Senators Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.) accused Kavanaugh in 2007 of having misled them over his role in the Bush administration’s post-9/11 detention policy, which by then Democrats pretended to have opposed all along. Expect to hear a great deal of recriminatory rhetoric on that score from Durbin and others.
Kavanaugh is “in the mold” of Scalia in two main senses: He is by all indications a textualist, meaning he interprets the law as it’s written rather than as its authors supposedly intended; and he is an originalist, meaning he interprets the text in light of what its words meant when it was enacted into law. Although Kavanaugh clerked for retiring Justice Anthony Kennedy, famous for drawing extratextual distinctions and inventing special models of interpretation, the younger judge relies far more consistently on the simple text of the law. See for instance his recent review in the Harvard Law Review in which he urges judges to eschew interpretive canons purporting to deem laws either clear or ambiguous—an “ambiguous” law is often one the judge simply doesn’t like—and instead “seek the best reading of the statute by interpreting the words of the statute.” That, in our view, beats judicial activism of both the liberal and conservative varieties.
Kavanaugh was born and raised in Washington, a biographical point that would seem not to recommend itself to this president. And yet Kavanaugh was the right choice precisely because he knows and understands the capital. Unlike several other erstwhile conservative judges whose ascent to the high court encouraged a more imperious approach to the interpretation of law, Kavanaugh is less likely to be wowed by the pomp and power of his new job. His work in the executive branch, moreover, has given him more than a theoretical appreciation of the constitution’s separation of powers and of the administrative state. Kavanaugh understands more than the judiciary.
Senate Democrats and allied advocacy groups will mount a ferocious campaign against Kavanaugh. Indeed some Democrats announced their opposition before the president even announced his choice. Former Democratic majority leader Harry Reid having broken the tradition of allowing filibusters on judicial nominees, Democrats probably cannot stop Kavanaugh’s confirmation. But the ferocity of their rhetoric will intensify in proportion to the powerlessness of their opposition. We shudder to think what tendentious exegeses and slanderous charges they’ll produce when the hearings begin.
Unless we are mistaken, however, neither Judge Kavanaugh’s words nor his achievements nor his character will give any fair-minded lawmaker, Democrat or Republican, reason to conclude that he is anything but a first-rate legal mind and a conspicuously qualified nominee.
