Nominee Kavanaugh

From Jonathan Adler at Volokh:

 

Judge Kavanaugh has served on the D.C. Circuit for twelve years. This court is often referred to as the “second-highest” court in the land because it hears the lion’s share of legal challenges to major federal regulations. Administrative law is a heavy part of the court’s docket, and forms a large part of Judge Kavanaugh’s record. In his time on the D.C. Circuit, Judge Kavanaugh has written over 200 opinions, over 100 of which concern administrative law.

Prior to serving on the D.C. Circuit, Judge Kavanaugh was a partner at Kirkland & Ellis, worked in the Bush White House, and for Independent Counsel Kenneth Starr. He clerked for Anthony Kennedy, as well as for two circuit court judges. There is no question about his qualifications for this nomination.

Attention will now turn to Judge Kavanaugh’s judicial opinions and other writings. Aaron Nielson has a summary of Judge Kavanaugh’s concurrences and dissents at the Notice & Comment blog. Going beyond Kavanaugh’s opinions, here are some other writings. Here’s a lecture Judge Kavanaugh gave at CWRU on the D.C. Circuit at the Case Western Reserve University School of Law. A published version of the lecture is here. Here is Minnesota Law Review article on the separation powers and here is Harvard Law Review piece on statutory interpretation.

Here are some additional thoughts on the Kavanaugh nomination:

  • Judge Kavanaugh is widely respected on the Supreme Court. Many of his clerks go on to clerk at One First Street. More importantly, his opinions attract notice from the justices. Several of his dissents have been vindicated by subsequent Supreme Court decisions. His dissents showed the way for the Court in Michigan v. EPA (White Stallion Energy Center v. EPA concerning mercury emissions), UARG v. EPA (CRR v. EPA concerning GHG emissions), Free Enterprise Fund v. PCAOB (concerning separation of powers), and D.C. v. Wesby (concerning qualified immunity). And even when certiorari was granted, Judge Kavanaugh’s dissents have been noted in subsequent Supreme Court cases (as in Lexmark International v. Static Control Components which favorably cited Kavanaugh’s dissent in Grocery Manufacturers Association v. EPA). This suggests other justices will take the new junior justice’s opinions quite seriously, especially on administrative law.
  • Judge Kavanaugh takes administrative law very seriously, and he makes agencies do their homework. As much as any other judge on the D.C. Circuit, he makes sure that agencies act within the scope of the authority they have been delegated by Congress, that they follow the procedures required by the APA, and that the adequately justify their decisions. This has often led to decisions invalidating agency action — both in challenges brought by supporters and opponents of regulation — but Judge Kavanaugh is not an anti-regulatory zealot. Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair (as when he rejected challenges to surface coal mining regulations).
  • Judge Kavanaugh shares the Chief Justice’s belief that there is a “major questions” exception to Chevron deference. In the challenge to the FCC’s “net neutrality” rule, Judge Kavanaugh echoed the Chief Justice’s admonition that courts should not lightly presume that Congress has delegated agencies broad regulatory authority if Congress never actually said so in the underlying statutory provisions.
  • Judge Kavanaugh takes separation of powers seriously, as can be seen in his dissenting opinions arguing that the structure of the Public Company Accounting Oversight Board (PCAOB) and the Consumer Financial Protection Bureau (CFPB) are unconstitutional. The former of these opinions was subsequently vindicated by the Supreme Court.
  • Like his former boss, Justice Kennedy, Judge Kavanaugh has a broad understanding of the freedom of speech protected by the First Amendment, including commercial speech. This is most noticeable from his separate opinion concurring in the judgment in American Meat Institute v. USDA. In this opinion, he showed a sophisticated understanding of how to reconcile various cases concerning commercial speech regulation and compelled commercial speech (an understanding better than that of the court’s majority, as I noted here).
  • Judge Kavanaugh’s views of executive power may depart from those of Justice Kennedy. Whereas Justice Kennedy voted with the Court’s liberals in support of habeas petitions filed by enemy combatants in the Boumediene case, Judge Kavanaugh has interpreted this precedent quite narrowly, and may be unlikely to follow his former justice’s lead. On the other hand, Justice Kennedy was himself highly supportive of executive power in many national security and foreign affairs cases, voting in support of Presidential power in cases such as Hamdi v. Rumsfeld, Trump v. Hawaii, and Zivotofsky v. Kerry.
  • Judge Kavanaugh will be criticized for prior statements he has made about Presidential immunity. In the Minnesota Law Review article linked above, he suggested that a sitting President should not be subject to litigation or criminal investigation. Note, however, that this was his opinion in 2009. More importantly, he did not suggest Clinton v. Jones was wrongly decided and said explicitly that any such insulation from litigation or investigation would have to be enacted by Congress, and could not be imposed by the Courts. Many early news reports on the nomination obscure or fail to mention this fact.
  • Judge Kavanaugh’s extensive record has created an extensive paper trail. There will be lots of documents for the Senate Judiciary Committee to review — and it’s certain that Senate Democrats will seek to slow things down on that basis. On the other hand, insofar as Senate Democrats have already announced their opposition to the nomination — some even before the nomination was announced — it’s not clear why they would need more time to review the record. After all, they don’t need more time to review materials if they’ve already made up their minds.

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I think this is a fair assessment of his writings and decisions and different from the spin the media has put on it from their various political as opposed to judicial or legal analyses.  I did read a [basically non-political] opinion of his that I found to be totally off the point of the case, and that would be the basis of my questioning of him.  There was no reason for a guy as smart as he is to miss the point of the whole litigation.  Maybe his clerk wrote his opinion, but I would want to make sure I knew he wasn’t throwing in a spanner for some personal reason.  If y’all are interested I will dig up the case.

And no, my questioning him on his politics would be limited or non-existent.  If he satisfied me on how he freaking missed the point on a simple case I would vote for him.

 

Supreme Court, limits of Chevron deference, 9th Circuit, DoL

Encino Motor Cars is a Supreme Court case from 2016. It isn’t over yet as the case was sent back to the 9th which recently ruled again. Here is the background.

The FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. In 1966, Congress enacted an exemption from the overtime compensation requirement for “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.

Congress authorized the DoL to promulgate necessary rules, regulations, or orders with respect to this new provision. The Department exercised that authority in 1970 and issued a regulation that defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles . . . which the establishment is primarily engaged in selling.” The regulation excluded service advisors, who sell repair and maintenance services but not vehicles, from the exemption. Several courts, however, rejected the Department’s conclusion that service advisors are not covered by the statutory exemption.

So here DoL simply dropped service advisors, who at that time were always engaged in selling services as well as scheduling, from the exemption created by Congress. Not a big stretch for Fed Courts to say “WTF?”

From 1978, then, until 2011, DoL treated service advisors as exempt, bowing to the various court rulings.

In 2011, without explanation, DoL reversed field and reiterated its 1970 regulation, denying the exemption.

Then the 9th Circuit ruled that “Chevron deference” applied and upheld DoL.

In 2016, the Supremes, all 8 who were sitting, agreed that Chevron deference could not apply to reversal of a long standing regulation without any explanation. The decision was 6-2, with Thomas and Alito wanting to Render and throw out the reg, but the majority Remanded to the 9th with instructions to decide without reference to Chevron deference. Who was right procedurally is an interesting side argument. The law school view is that the Supremes announce policy of the law but don’t weigh facts, but here it may have been that there were no facts to weigh. I didn’t read the record, so I don’t know. IOW, Thomas and Alito might have been exactly on point, or not.

So as a practitioner I would have wanted to know whether service writers had become mere schedulers or not. In my own experience, American dealerships sell service through the writers but Lexus and Subaru do not. YMMV. To justify a change in the reg, if I were at DoL, I would have attached a certified finding that service writers were not primarily sales force and exhibited the service writers’ employment descriptions or other materials before requesting that the 9th rule that the case had become moot on Remand, based on the Supremes’ requirement for a justifiable explanation. Or something like that.

But the DoL stood pat. And now the 9th has said “service writers are not primarily sales force” from the record before them, thus ruling the same way, but without any Chevron deference.

Maybe so. Maybe not. Again, gotta read the record, not just the opinions, and I have not. But there will likely be an Encino II at the Supremes.

If the Supremes had simply decided as Alito and Thomas wanted, the DoL could still have gone back to the drawing board and justified the change going forward, if there were facts to support it.

My gut says that Subaru and Lexus service writers, who never tried to sell me anything, should not be exempt, but that Ford service writers who always tried to sell me the Moon should be exempt. And I think that the regulation should not be “one size fits all” but rather one size fits the statutory definition, administrative convenience be damned. “Administrative convenience” is especially a problem when dealing with the FLSA, because the Wage and Hour guys have had a history of setting traps for the unwary.

On Scalia’s replacement, Senate R’s should follow Obama’s lead

Yes, you read that headline correctly. In the wake of the extremely untimely death of Justice Antonin Scalia, I believe that Senate Republicans should follow Barack Obama’s lead when it comes to the next Supreme Court nomination. Specifically they should follow the path laid out by then Senator Obama in a 2005 speech explaining his decision to vote against the nomination of John Roberts. Specifically, Obama said that:

…while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

Republicans in the Senate should take that standard to heart and both act and vote accordingly whenever Scalia’s replacement is finally nominated.

To be honest, Obama’s standard for evaluating a judicial nominee has almost nothing to recommend it. It has no basis in the Constitution, nor in historical tradition, nor in the oath that Judges take, nor in any common sense understanding of the role the judiciary can legitimately play in a democracy. Although calling it “Obama’s standard” is not entirely fair. In his speech Obama merely made explicit what had been implicit long before Obama came along, at least since 1987 and the defeat of the nomination of Robert Bork to the Court, and that is that the judiciary is a political branch of the government that makes decisions based on not on the law or the constitution, but rather on the personal values and political philosophy of individual judges.

Again, there is almost nothing to recommend Obama’s approach to nominating and confirming judges. Almost. The only thing that does recommend it is that it is already a reality for roughly half of those involved in the process, including half of those already on the court. Given that reality, R’s have virtually no choice but to play by the same rules. To be sure, embracing those rules is destined to alter the nature of our political system beyond recognition, but R’s must face the fact that it has already started to happen without them, and will continue to happen with or without them. The best they can hope to do is embrace this new system in the hopes of influencing the system towards their own values. The idea of objective law being applied objectively by judges seeking to understand the law on its own terms regardless of personal values is, we must admit, a failed experiment.

A baseball team facing an opponent that not only routinely ignores the written rules of the game but has bought off half of the umpires in its effort to do so has no choice but to follow suit. Republican Senators must establish explicit political litmus tests for potential nominees to the court, and must apply those tests ruthlessly, using all possible political machinations to impose their will. They must, as Senator Obama did, vote only for those nominees to the court which reflect their own “deepest values”, their own “core concerns”, their own world philosophy, their own notion of who deserves “empathy”.

The days of allowing well qualified judges of any political stripe to sit on the court are over. We may lament that fact, but we must accept it nonetheless. The Court is now a political branch of the government, and to treat it as something different is to deny reality. The politics of nominees to the court explicitly matter. R’s must do everything they can to understand the politics of future nominees, and reject any nominee that does not reflect their own conservative values and a conservative understanding of the constitution. In other words, they must take Obama at his word and do exactly what he would have them do. The Democrats asked for this kind of process. R’s should give it to them.

Report on Manufactures

5 Dec. 1791Papers 10:302–4

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.
ALEXANDER HAMILTON

The Founders’ Constitution
Volume 2, Article 1, Section 8, Clause 1, Document 21
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961–79.

Conservatives Behind the 8-Ball

Ever since last week I have been contemplating writing a post about the Supremes and judicial philosophy, but have not had the time to really put my thoughts in order, so I have put it off. Today, however, William McGurn, writing in the WSJ, noted in passing precisely the topic I wanted to write about, so I figured I would just highlight what he said. His article is primarily about Chief Justice Roberts’ decision to switch votes on the ACA case for what are seemingly political rather than constitutional reasons. But what caught my attention, and what I have been thinking about for a few days now, was the following aside:

Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits.

This strikes me as a real handicap. This is not to say that conservatives on the Court everywhere and always apply that belief and those limits consistently. We need look no further than Roberts and the recent decision itself to know that. But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.

Putting aside whether or not the charge of hypocrisy actually had merit, at the very least it is fair to question whether or not the conservative bloc ruling in Bush v Gore set aside ostensible principles (eg states rights) in order to reach a politically desireable result. But imagine a mirror situation in which the reverse had happened. Imagine that a liberal majority on the court had made precisely the same ruling resulting in a Gore victory. The liberals might be accused, as they often are, of simply ignoring the constitution out of convenience. But who could ever seriously charge them with judicial hypocrisy? If liberal constitutional philosophy is correct and it is true that the constitution is “living” and therefore its meaning perpetually in flux depending social norms, circumstances, or who knows what else, then at any given time their interpretation of it may well be the “correct” one, even if it stands in contrast with the plain words of the constitution itself.

Basically, it seems to me that conservatives advance a theory of constitutional interpretation that makes conservative opinions objectively critique-able on their own terms, while liberals do not. That is why hand-wringing over the legitimacy and politicization of the Court inevitably centers around conservative Court opinions, and never, ever around liberal Court opinions. Again, the recent ACA case is instructive. Conservatives are now attacking Roberts, not the liberal bloc that voted with him and made up 80% of the majority, for what seems to be a politically inspired opinion, not because they think liberals aren’t being political, but because Roberts seems to have gone against his principles, while the liberals were just doing what liberals do.

The Political Supremes

The WSJ today notes something odd that I noticed and thought was peculiar yesterday in reading through the dissent:

One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall’s legacy, the result is closer to William Brennan’s.

Charles Krauthammer proposes a similarly political explanation for Roberts’ decision.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature…
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Whether or not this is true, Roberts’ decision will not, and should not, restore any lost legitimacy of the court. The legitimacy of the court (to the extent that it even matters) had not been brought into question because one or two contentious decisions have been perceived as politically motivated. The legitimacy of the court is in question because the court has become a political institution. In our post-Roosevelt and, in particular, post-Roe world, justices are appointed and confirmed to the court by politicians in a blatantly transparent effort to effect political ends via the judiciary. And once on the court, those justices do what they were nominated to do. From a layman’s perspective, it has become obvious that, on many politically contentious issues that make it to the court, justices have a preferred result in mind and use whatever lawyerly semantics, sophistry and tortured reasoning they can to justify reaching that preferred outcome.

Far from dispelling this impression of the court, Roberts’ opinion merely strengthens it. The fact that he is a conservative joining a bloc of liberals does nothing to blunt the undeniable conclusion that this decision was politically motivated. It doesn’t matter much whether it is because he likes the direction in which Obamacare is taking the nation, or because he is trying to – ironically – alter perceptions of the court. It is clear that he has engaged in the same semantics, sophistry and disingenuous parsing that has made so many of us non-lawyers so cynical about the court’s proceedings.

If Krauthammer is correct and Roberts’ decision was driven by a desire to burnish the courts flagging reputation as an impartial, non-political interpreter of the law, he could not possibly have taken a more counter intuitive approach, nor have failed more abysmally.

SCOTUS Decision (Open Thread)

So today is the day. I thought we could just use an open thread for comments as the decision and opinions come in.  Anyone have a link to that liveblog we can add here?

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