What Kind of Conservative is Kavanaugh?

Half a dozen observations on our (probably) soon to be junior Justice.

I wanted to add a few words about Kavanaugh in light of Ann Carlson’s excellent post a few minutes ago. No doubt we’ll be seeing more about his views after people have had time to read his opinions and some of his law review writing. But there are a few points I would add after reading a helpful list of his opinions:

  1. Separation of Powers.  Kavanaugh is a true disciple of Antonin Scalia on separation of powers issues. He believes fiercely in the “unitary executive” theory. As a result, independent agencies may well be at risk. But EPA and the Department of Interior aren’t independent in this sense: their heads can be fired at will by the President, as we just saw with Pruitt. So this would directly affect only the Federal Energy Regulatory Commission, in terms of the areas of environmental concern.
  2. Textualism.  Again like Scalia, Kavanaugh believes that it’s seldom necessary to look beyond the plain meaning of the specific provision at issue. As with Scalia, this means agencies trying to do new things will often get smacked down.
  3. Federalism.  Who knows? Because he has served on the D.C. Circuit, there seems to be little direct evidence of what he thinks about states’ rights.
  4. EPA.  At least in the cases where he’s written, Kavanaugh has rarely been on the environmental side of a case. We’ll no doubt find out more from further digging into his voting pattern.  On the other hand, he does go out of his way to express appreciation for the goals EPA is trying to pursue, and he does seem to understand that agencies have a fair amount of discretion within what he thinks are statutory bounds.
  5. Cost Benefit Analysis. Kavanaugh really likes cost-benefit analysis and is ready to slap down EPA when it has failed to consider costs. On the other hand, once the agency has done so, he may be more willing to defer to the outcome.
  6. Precedent. Kavanaugh at least expresses respect for his own circuit’s precedents and chides other judges when he thinks they’re not following Supreme Court precedent. So he may be more conventional in this respect than Thomas.

Obviously, he’s a lot different from Merrick Garland (nominated by Obama) or from whomever Hillary Clinton would have nominated.  My impression is that he’s a lot like Scalia, though his rhetoric is less venomous.Elections have consequences.

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Reader Comments

5 Replies to “What Kind of Conservative is Kavanaugh?”

  1. Dear Dan,
    Does Judge Kavanaugh exhibit the opinions and perspective of a “denier” ? He appears to be a devout Christian with a wonderful wife and two lovely daughters. He seems to adhere to traditional Biblical moral values and this creates a conflict with the LGBTQ community because they practice sexual immorality (which the Judge abhors).

    There is a great mystery surrounding the deep and intrinsic affinity between climate and LGBTQ activists. Climate mongrels and the LGBTQ community are closely aligned and both groups strongly oppose Judge Kavanaugh.

    At this time, it is too early for opponents to call Judge Kavanaugh a bigot and denier, because this would sound biased and unfair. But during the confirmation process we are likely to hear both of these nasty labels applied to our good Judge. We are grateful for this superb Supreme Court nominee, thank you Mr. President.

    1. “There is a great mystery surrounding the deep and intrinsic affinity between climate and LGBTQ activists.”

      There are not a lot of people in this country who could write such a statement and not realize how unhinged it makes them sound. You are one in a million, BQRQ.

      “Climate mongrels…”

      Strong words for the thousands of Ph.D. climate scientists who disagree with you. Maybe you have another local weatherman with nothing more than a high school diploma (like Anthony Watts) to educate them all about where they are wrong.

      Overall it seems clear that you have no interest in basing your views about climate on reason. No, for you all that matters is who agrees with you about gay marriage. If those people tell you global warming is a hoax, you will defend that idea to your dying breath, evidence be damned.

      1. Dear BBQ,
        I appreciate the fact that you directed your criticism at me and not Judge Kavanaugh. This gives us hope that reasonable people with different opinions can agree on this nomination. When I was young we would say “here comes the Judge.”

        1. I appreciate the fact that you continually show that deniers like yourself are intellectual cowards by running away any time evidence is provided that shows one of their beliefs to be faulty.

  2. In a 2006 case, Judge Kavanaugh cited a previous case claiming that “vertical integration creates efficiencies for consumers.” National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 840 (D.C. Cir. 2006). In doing so, Kavanaugh included the underlying cite that court had relied on (Areeda & Turner, Antitrust Law) but then added a cite to Robert H. Bork, The Antitrust Paradox.

    The additional cite was unnecessary but illuminating.

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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