Sunday, July 22, 2018

Kavanaugh on Precedents: This Wolf Comes as a Wolf

      Supreme Court nominee Clarence Thomas presented himself to the Senate Judiciary Committee as the very model of judicial restraint, with no "agenda to change existing law." Barely a week after his confirmation, however, he voted in conference to overturn a prisoner rights precedent and followed later in the term as one of four justices voting to overrule the landmark abortion rights decision Roe v. Wade
      Brett Kavanaugh was a recent Yale Law School graduate at the time and developed an intensified hero worship for the then-associate justice William H. Rehnquist after Rehnquist' called for overruling Roe in his dissenting opinion in the 1992 decision, Planned Parenthood v. Casey. Kavanaugh recalled that experience in a Constitution Day speech that he delivered, as a federal appeals court judge, to the conservative American Enterprise Institute (AEI) in September 2017.
      As President Trump's nominee to succeed Justice Anthony M. Kennedy on the Supreme Court, Kavanaugh may try to follow the Thomas example in disclaiming any predisposition to start reversing prior rulings if confirmed. But if he does, there will be even less reason to believe him than there was to accept Thomas's bald-faced dissembling a quarter-century ago.
      Kavanaugh recalled with regret in the AEI speech that Rehnquist had failed in his attempt to overturn Roe, but he credited the late chief justice with having "righted the ship of constitutional jurisprudence" in other areas, such as unenumerated rights, church-state separation, and administrative law. By the time he gave the speech, Kavanaugh was at or near the top of Trump's list of possible Supreme Court nominees in the event of a new vacancy. So the speech must be regarded as an audition for the role that Kavanaugh has now been awarded.
      As presidential candidate, Trump promised to appoint justices who would overturn Roe v. Wade if confirmed. In his Senate Judiciary Committee questionnaire, posted online over the weekend, Kavanaugh replied with a simple "no" to the question of whether anyone in the White House or executive branch had asked him for an assurance on how he would vote on a given issue or in a given case. Even accepting the unelaborated denial, however, there simply was no need for the White House to ask since Kavanaugh has already gone on record with a list of three important precedents that he would overrule if confirmed.
      Speaking to the AEI in March 2016, Kavanaugh spoke eagerly of hoping to overturn the 1988 decision in Morrison v. Olson that upheld the independent counsel statute over Justice Antonin Scalia's lone but oft-quoted dissent. Kavanaugh said, in an oversimplification, that the decision had been "effectively overruled," but he followed by vowing, "I would put the final nail in."
      Scalia's criticism of the now-lapsed law as wrongly giving unchecked power to a special prosecutor aimed at officials in the executive branch carried the day a decade later when Congress decided not to renew the statute. So the case is not overruled but simply moot. Still, the discovery of the AEI speech seemed to some to have possible implications for Kavanaugh's views of special counsel Robert Mueller.
      The White House was concerned enough about this inside-baseball story to dispatch deputy press secretary Raj Shah to stress that Mueller was appointed under a Justice Department regulation that would be unaffected by overturning the 1988 precedent. Kavanaugh's disagreement with the decision does have present-day relevance, however.
      Kavanaugh cited Scalia's dissent approvingly when he voted in dissent from the D.C. Circuit's decision in January to uphold the structure that Congress enacted in establishing the Consumer Finance Protection Board (CFPB). Congress created the CFPB as an independent agency to be headed by a single director, protected from removal by the president except for cause.
      In dissent, Kavanaugh discovered a constitutional rule requiring independent regulatory agencies such as the Federal Trade Commission and others to be headed by multimember commissions, not by a single director. Republicans and business interests that opposed the CFPB are now pressing a constitutional challenge even as Trump's interim nominee as director is leading a retreat from the agency's mission,
      Kavanaugh is also on record as wanting to limit the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) that calls for judicial deference to administrative agencies when interpreting their powers under ambiguous congressional enactments. In a speech to the conservative Heritage Foundation, Kavanaugh outlined an approach that would effectively overrule the decision by requiring more explicit statutory language before upholding administrative agencies on "major" policy decisions. Conservative groups that have declared war against "the administrative state" are rallying around Kavanaugh as their champion for the battle.
      In his dissent in Morrison v. Olson, Scalia famously used the biblical metaphor of a "wolf in sheep's clothing" to warn of the law's dangers. Some issues come to the Court in "sheep's clothing," Scalia wrote. But, he concluded, "This wolf comes as a wolf."
      Kavanaugh may try on sheep's clothing when he comes before the Senate Judiciary Committee in hearings to be held in September. But senators ought not allow themselves to be fooled. This wolf comes as a wolf, with a public record of wanting to overturn judicial precedents. Whatever his answers at the hearing, two pro-choice Republicans senators, Alaska's Lisa Murkowski and Maine's Susan Collins, need to understand that Kavanaugh's confirmation quite likely could "put the final nail in" on Roe v. Wade. Rarely has so much turned on one or two votes on the floor of the U.S. Senate.

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