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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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…READ more