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Kavanaugh For Supreme Court: A Libertarian Review

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President Donald Trump announces xxxxx as his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Evan Vucci)

The retirement of Justice Anthony Kennedy gave Donald Trump an early opportunity at his second Supreme Court nomination, and on Monday the president nominated Judge Brett Kavanaugh from the D.C. Circuit of the U.S. Court of Appeals. While most from a libertarian perspective agree that Trump absolutely nailed his first opportunity at a Supreme Court vacancy by nominating now-Justice Neil Gorsuch, there have been some concerns about Kavanaugh, the D.C. native with a long bench record and an even longer career in federal politics. So who exactly is Brett Kavanaugh, what will his Supreme Court tenure look like, and will the Senate allow that tenure to happen?

Who is Brett Kavanaugh?

Brett Kavanaugh was born in Washington, D.C., and attended Georgetown Preparatory School, a Jesuit boarding school in North Bethesda, Maryland. He went on to earn his undergraduate and law degrees from Yale, graduating in 1990. By 1992, he had been hired by the Solicitor General’s office, where he worked until the end of George H.W. Bush’s presidency. He clerked for Justice Kennedy from 1993-94 and then worked as an associate counsel with the Office of Independent Counsel from 1994-97, where he was a leading author on the Starr Report.

He left to become a partner with the Kirkland & Ellis law firm but returned to Starr’s office in 1998. After the investigation concluded, he returned to Kirkland & Ellis until the end of the Clinton presidency. When George W. Bush was elected, Kavanaugh was brought on as senior associate counsel in the Bush White House from 2001-03. In 2003, he was promoted to assistant to the president and staff secretary. His close relationship with Bush earned him a nomination to the U.S. Court of Appeals in the D.C. Circuit in 2006, where he has served since.

Truly, his resume is unmatched. Though political at times, his length of service in the various legal responsibilities of the federal government is greater than that of any current Supreme Court justice at the time of their nomination. However, the nature of his political work is concerning. The Starr report was certainly a targeted political attack on President Clinton, and ultimately unsuccessful. The Martin-Quinn methodology for determining political bias in judges estimates that Kavanaugh will fall just to the right of Gorsuch, and far to the right of Justice Kennedy, the long-time swing vote (the role of which now falls to the conservative Chief Justice Roberts). With such a long career, there is ample opportunity to examine Kavanaugh, and know where he will likely rule on important Supreme Court cases in the future.

The Constitutionalist

Four of Kavanaugh’s decisions provide a good deal of optimism for civil libertarians. Though not yet on the court for the original D.C. v. Heller, Kavanaugh did get an opportunity to write a dissenting opinion in the unsuccessful D.C. v. Heller II, which was a challenge to the District’s assault weapon ban. In the dissent, Kavanaugh argued that much of the Supreme Court’s ruling supported a right to own, and carry, a semi-automatic handgun for self-defense. Kavanaugh insisted that there is no legal distinction to be made between a semi-automatic handgun and a semi-automatic rifle for the sake of the original Heller ruling. This reflects Kavanaugh’s stance on the 2nd Amendment being similar to many originalists, and favorable towards libertarianism.

In Emily’s List v. the FEC, regarding FEC rules limiting donations to political action committees, Kavanaugh sided against the government, claiming the spending of political money to be a form of speech. This was before the Citizens United case, and so hopefully this issue is now settled, but this is another issue for which that, should it come up, libertarians can consider Kavanaugh on their side. When hearing the argument against a mandatory 20-year aggravation on an armed robbery charge in U.S. v. Askew, Kavanaugh invoked mens rea in the dissent, claiming that the defendant certifiably did not know that his weapon was automatic, and thus could not be guilty of a crime he did not know he was committing. This ruling is one of a few by Kavanaugh that ensure at least some protection for the accused, in line with the Constitution and common law practice.

The final case is most interesting, in my opinion. In hearing the case of a military commission’s conviction of the driver of Osama bin Laden, Kavanaugh sided with the majority in overturning it, as the crime (providing material support to a terrorist) was not in code when the act occurred, thus making the conviction ex post facto. These prove, if nothing else, that Kavanaugh is a good Constitutional originalist, and is willing to invoke those protections in the face of tyranny.

Pro-Government Powers

Kavanaugh is certainly not without his flaws, though. In one particularly concerning case, U.S. v. Jones, Kavanaugh argued that the location of one’s vehicle is not necessarily protected by the 4th Amendment, as there is no reasonable expectation of privacy. However, Kavanaugh did bring to light an argument that eventually led to the case being overturned by the Supreme Court: In order to place such a tracking device, the government did invade the privacy of the defendant, in violation of the 4th Amendment.

While his original decision is not comforting, it was in line with judicial precedent (U.S. v. Knotts), and he did at the least predict the argument that later prevailed. It is also worth noting that the two biggest 4th Amendment cases heard recently, U.S. v. Jones and Carpenter v. U.S., were settled without the help of Kennedy (the former case was unanimous, and Kennedy dissented in the latter).

In a later case, U.S. v. Askew, Kavanaugh sided once more with the government against 4th Amendment rights. A man was identified for wearing similar clothes to what a suspect in a recent crime was wearing, and so he was given a pat-down, as legally allowed by Terry v. Ohio. In the pat-down, police found nothing. However, when they unzipped his jacket, they discovered a gun. The court ruled that the unzipping of the suspect’s jacket constituted an illegal search of his person, but Kavanaugh disagreed. He claimed that such an act was an extension of a Terry search, and also necessary for police safety. These two cases provide legitimate grounds for concern for 4th Amendment activists, and libertarians should heavily consider them in evaluating the nominee.

One of the most controversial opinions Kavanaugh wrote was not on the 4th Amendment, but rather on a case against the Affordable Care Act mandate, Seven-Sky v. Holder. Kavanaugh cites Article I, Section 8, of the Constitution to defend the legality of the mandate, siding with the administration in their classification of the mandate as a tax. While the mandate was in the IRS Tax Code, many argued that it was instead a fine. If Kavanaugh’s argument is true, then he is right in arguing that the court had no jurisdiction to levy the claim, as the Anti-Injunction Act prevents courts from hearing suits until the tax has been paid. Once again, though I disagree with Kavanaugh, his argument is fairly solid, and backed by statute and precedent.

Kavanaugh Should, and Will, be Confirmed

In whole, though, Kavanaugh deserves to be confirmed. While he has his flaws, he is an originalist, he is supremely qualified, and he is likely the best nominee we will see. If Kavanaugh is rejected, he will be replaced by someone who has been on the court less, is not as convicted in their beliefs, and who may not be as fervently supportive of the 1st and 2nd amendments. Kavanaugh has the support of the Federalist Society, a powerful conservative judicial lobby, as well as the Heritage Foundation. But two surprising endorsements come from the Cato Institute and Akhil Reed Amar.

From the Cato Institute, Ilya Shapiro endorses Kavanaugh largely based on the strength of his convictions, noting the failures of Roberts and Kennedy in tough cases. Akhil Reed Amar, in the New York Times, is a liberal Democrat, supportive of Obama and Hillary, who endorses Kavanaugh on the strength of his resume, and a desire for a less politicized court (which must include a less politicized nomination process). Not everyone agrees with Shapiro, Amar, and myself, though. Justin Amash calls the pick “disappointing,” warning Kavanaugh is not another Gorsuch. And he is right! But Gorsuch is a generation great, and I do not think we will see another pick that great for 15 or 20 years. Rand Paul, who has a vote in the matter, instead says he is approaching the nomination process with an “open mind,” like many of the Senators whose votes this nomination will hinge upon.

So, the most important question is, will Kavanaugh be confirmed? Yes, probably, but it won’t be easy. There are at least five Republican votes you cannot yet count. Senator John McCain likely will not be present, as he is still undergoing cancer treatments in Arizona. Rand Paul will have to be convinced, based on the senator’s strong stance on the 4th Amendment. Jeff Flake has held up multiple judicial nominations, usually as a means of grandstanding for other issues. I doubt any of those three, though, will oppose Kavanaugh.

The most important Republicans are senators Murkowski and Collins, the two female, pro-choice Republicans in the chamber. The question to them will be whether Roe v. Wade hangs in the balance. If they believe it does, they may be inclined to block Judge Kavanaugh for his leanings on abortion (though he’s faced very few cases on the matter).

If Murkowski and Collins both oppose, and McCain is absent, Republicans will need to find two votes from across the aisle. Three Democrats voted for Justice Gorsuch, and four may vote for Kavanaugh. Manchin (WV), Heitkamp (ND), and Donnelly (IN) all face re-election efforts in states that Trump won. Doug Jones wasn’t in the Senate for Gorsuch’s confirmation vote, but is a very moderate Democrat from Alabama. Manchin, Heitkamp, and Donnelly are all pro-life, at least among Democrats, and so a vote against Kavanaugh would not only be a political blow in the face of re-election but also would be against their own values.

Two of those three senators up for re-election trail in recent polling, with Heitkamp trailing slights Representative Cramer, a milquetoast Republican, and Donnelly trailing by a similar margin to tea party-style businessman Mike Braun (in a race featuring right-wing conservative John Patrick Piper and Libertarian Party candidate Lucy Brenton). Manchin has the easiest re-election bid of the three, against liberty-leaning attorney general Patrick Morrisey (this race also includes Libertarian Party candidate Rusty Hollen and oil tycoon/ex-con Don Blankenship fighting a sore loser law to run with the Constitution Party), but a vote against Trump’s pick could swing the polling numbers in a state Trump carried by a massive 42%. However, I anticipate all three, and possibly Jones, voting in confirmation, and Kavanaugh being confirmed, probably 53-46 with the support of Murkowski and Collins.

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