By David Warner,
I have been fascinated with the political theater around U.S. Supreme Court nominees ever since the contentious Clarence Thomas confirmation hearings gave rise to one of the greatest Saturday Night Live cold openings of all time. (Viewer beware, 2018 “sensitivities” might conflict with 1991 standards of humor. It’s still a classic.)
Given our current President and the fact that the incoming justice will replace the “swing vote” of retiring Justice Anthony Kennedy, it is widely expected that the political rhetoric will be ratcheted up to eleventy and stay there until the final vote is cast. Indeed, we’ve already seen breathless reports that Justice Kennedy and The White House purportedly coordinated his resignation with Kavanaugh’s selection; a report that was walked back as entirely unsourced within a few hours. Even the relatively staid USA Today seems to be picking up on the fact that some (all?) of the overheated rhetoric may be based more on grinding existing political axes as opposed to a principled objection to the individual nominee. And to think, we’re only in day three of the process!
And what of the nominee himself? Well, a little over a year ago I wrote a blog about Trump’s first “100 Days,” the central thesis of which was that – ill-conceived tweets notwithstanding – Trump was governing relatively conservatively and consistent with his campaign promises. Nominating Judge Kavanaugh, a true “DC Insider” is effectively more of the same. His resume before joining the federal bench in 2006 is straight out of central casting – i.e., Yale undergrad, Yale law school, clerkships with the Third and Ninth Circuit Courts of Appeal, a clerkship with the Supreme Court (Justice Kennedy’s chambers, notably), time with the Office of the Solicitor, time with the White House legal staff, etc.
While Kavanaugh’s jurisprudence is likely to be to the right of Kennedy, he is generally not viewed as a Scalia-esque firebrand. One possible exception may be in the area of administrative law and “Chevron deference,” which is the deference courts have given to administrative agency’s interpretations of their own regulations. Kavanaugh has spoken critically and at length regarding the doctrine, and his fealty to statutory authority in the face of potential agency overreach underlaid his decision against the U.S. Department of Labor in the high profile “CityCenter” case cabining the scope of the Davis-Bacon Act.
Despite the sturm und drang we’re about to experience, Kavanaugh – like Justice Neil Gorsuch before him – is a textualist that has consistently demonstrated conservative legal reasoning during his time on the bench. In other words, he’s pretty much exactly what Trump said he would nominate during his successful presidential campaign.
Obviously, that’s not going to be viewed as a good thing in all corners; and I am certain my partner and good friend Barbara Kinosky will be doubling her deliveries of kale and vitamin supplements to Justice Ginsburg’s chambers. But fear not, Barb, I understand measures are being taken to ensure that RBG will be around next session!
About the Author:
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.