The last 'swing'? High court 'reliability' and rule of law

The nation’s highest court appears poised to take a hard turn toward the ideological right, after President Trump nominated Judge Brett Kavanaugh to the United States Supreme Court.

A lifelong Washingtonian and a pillar of the conservative legal community there, Judge Kavanaugh’s educational background and extensive legal experience – including two degrees from Yale University and 12 years on the US Court of Appeals for the D.C. Circuit – made him an early frontrunner to replace Justice Anthony Kennedy, who announced his retirement last month. He is Mr. Trump’s second nominee to the Supreme Court – the US Senate confirmed Justice Neil Gorsuch last year – and while a bruising confirmation process awaits, it is likely that he will also be confirmed, further entrenching a conservative majority on the court that could transform American life.

“My judicial philosophy is straightforward. A judge must be independent, and must interpret the law, not make the law,” Kavanaugh said after Trump announced his nomination Monday night. “A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history, and tradition, and precedent.”

Since his presidential campaign, Trump has said he would nominate reliable conservatives to the federal courts. He consulted closely with the Federalist Society, a network of conservative legal scholars, and Justice Gorsuch represents a fulfillment of that promise, having established himself as one of the more conservative members of the high court in his first full term. Experts say Kavanaugh, also vetted and approved by the Federalist Society, is likely to tread a similar path.

But the promise of reliable conservative nominees represents a concerning shift for some court watchers. Justice Kennedy, a Reagan nominee, gained a reputation as the court’s “swing” justice in recent years, siding with his liberal colleagues on issues such as same-sex marriage, affirmative action, and environmental protection. Kavanaugh – who clerked for Kennedy and has a long judicial record favoring a broad view of the First Amendment, deference to presidential power, and restricting the power of federal agencies – would be a more reliable vote for conservatives on many of those issues, experts say.

“The court looks more and more like the other branches, the political branches,” says Carl Tobias, a professor at the University of Richmond School of Law who studies federal judicial selection. “Observers are talking more about the appointing president and whether someone’s a Republican appointee or the Democratic appointee, and I think that’s not healthy for the court.”

Another ‘normal’ nominee

As conservative as his record suggests he is – Glenn Harlan Reynolds, a University of Tennessee law professor, positioned him somewhere between Gorsuch and Chief Justice John Roberts, while Ed Whelan of the National Review likened him to conservative Justices Antonin Scalia and Clarence Thomas – some Republicans voiced doubts about Kavanaugh prior to his nomination.

Sen. Ted Cruz of Texas, who sits on the Judiciary Committee that will hold Kavanaugh’s confirmation hearings, said he could be an “unreliable” jurist. Some conservatives questioned a 2011 decision of his that favored the Affordable Care Act’s individual mandate, and others have said his dissent in a recent case allowing a pregnant unaccompanied minor detained at the border to get an abortion did not go far enough. Some observers thought his close ties to the George W. Bush administration – he served in his White House counsel’s office, and as his staff secretary – might bother Trump, who has criticized (and been criticized by) the former president.

As was said after Gorsuch’s nomination, Kavanaugh is a conventional Republican nominee from an unconventional Republican president. His nomination “in many ways is as normal as these kinds of nominations get,” says Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School. “He easily could have been nominated by John Kasich, Marco Rubio, or any conventional Republican.”

Senate Democrats are gearing up for a bitter confirmation fight. Having been touted since he was added to an official list of potential Supreme Court nominees in November 2017, Kavanaugh has already been the subject of intense opposition research. Republicans have a narrow 51-to-49 majority in the Senate, however, and after they voted to remove the 60-vote threshold for Supreme Court nominees prior to Gorsuch’s confirmation last year there is little that Senate Democrats could do to delay Kavanaugh’s confirmation.

They would be best served by focusing their opposition more on the big picture: How Kavanaugh would change the court compared with how it operated with Kennedy, said Ricki Seidman, a senior White House aide in the Clinton and Obama administrations, in a webinar Tuesday organized by the American Constitution Society.

“This has got to partly be beyond Kavanaugh to what we want the court to be, what it is supposed to be under the Constitution, and what putting Kavanagh on the court means for the institution,” said Ms. Seidman, who helped steer Justice Sonia Sotomayor’s nomination through the Senate.

Right now, both sides of the political spectrum are focused on what Kavanaugh’s nomination might mean to one case in particular. “If they overturn Roe v. Wade, which they might, then I think there’s going to be a reaction, and the reaction is going to be a very strong one, and the reaction will just be a tit for tat. Will the goal be to add seats to the court, and will [it] just be a constant tug of war until someone sits down and says is there a more sensitive way to do this?” says Allan Ides, a professor at Loyola Law School in Los Angeles, and a former clerk for Justice Byron White.

While Kavanaugh would likely be a more reliably conservative justice than Kennedy, nominating reliable candidates to the high court is something Republican and Democratic presidents have been doing for decades, says Professor Somin. The four justices on the court’s liberal wing were all nominated by Democratic presidents, after all. From the 1950s through the early 1990s, justices were not so reliably aligned with the presidents who appointed them, Lee Epstein and Eric Posner write in The New York Times. “For the first time in living memory, the court will be seen by the public as a party-dominated institution,” the law professors write. “This risk, and not just the identity of the next justice, should be at the center of public attention.”

The last justice to drift from the party that nominated him was David Souter, who was nominated by former President George H.W. Bush.

“Democratic presidents have sought to nominate reliable liberals and Republicans have sought to nominate reliable conservatives,” Somin says. “We can’t be naive about this.... On occasions like the Souter nomination, a president screws up and doesn’t get what he bargained for, but it’s not for lack of trying.”

Furthermore, while Kavanaugh is expected to be a reliable conservative vote on the issues of today, he is likely to serve on the court for decades and it’s impossible to know how he might rule on new issues that emerge.

“When Kennedy was nominated to the court in 1987 very few, if any, people thought that same-sex marriage would be a major issue he would rule on when on the court,” Somin says. Kennedy went on to author every major opinion the Supreme Court issued on expanding the rights of LGBTQ people, including the 2015 decision that found same-sex marriage constitutional.

A long paper trail

Kavanaugh, a Catholic in his early 50s, attended Georgetown Prep, a Jesuit high school in Washington’s suburbs that also produced Gorsuch, before going to Yale. In 1998 he joined the team of Kenneth Starr, the independent counsel investigating President Bill Clinton. He ended up authoring several sections of Mr. Starr’s report to Congress, including sections that suggested possible grounds for impeachment, and later spent 5-1/2 years working in the Bush administration.

Those experiences helped inform his views on executive power, and when that power should be checked. In a 2009 article in the Minnesota Law Review, he wrote, “the job of the President is far more difficult than any other civilian position,” and that it “would ill serve the public interest” if the president were subject to “time-consuming and distracting” lawsuits and investigations.

With Special Counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 election, Kavanaugh’s views on such investigations are likely to be questioned during the confirmation process. But some of the more than 300 opinions he authored while on the D.C. Circuit will come under scrutiny as well.

In 12 years on the appeals court, he has proven to be a staunch originalist – the judicial philosophy, favored by the Federalist Society, that calls for interpreting as the Framers would have – in the mold of Gorsuch and Justice Scalia. The D.C. Circuit is widely considered a “feeder” court for the Supreme Court, since it hears many of the same types of cases. On that court Kavanaugh has argued, often using originalist principles, that presidents should have more power over independent agencies within the executive branch, such as the Consumer Financial Protection Bureau, and that courts should show less deference to decisions and regulations crafted by federal agencies. His dissent in the case of the unaccompanied minor who got an abortion has led some to believe he would vote to overturn Roe v. Wade.

Kavanaugh’s confirmation would swap a relatively moderate conservative for a justice likely to bolster the court’s conservative originalist wing – capping a stunning rise for the philosophy from near-obscurity 30 years ago to a near majority on the high court.

Jurists like Kavanaugh and Gorsuch “have in important ways been groomed by that movement, so the results when they get on the Supreme Court really shouldn’t surprise anybody,” says Steven Schwinn, a professor at the John Marshall School of Law in Chicago, and “I think that’s disappointing.”

He adds: “We get a much better jurisprudence, a much better result from the Supreme Court, when the justices are not as closely aligned with political parties or political movements.”

Staff writer Patrik Jonsson contributed to this report.