The Judicial Mind of Brett Kavanaugh

A speech he gave last year gives a pretty good indication of the judicial philosophy of Brett Kavanaugh, the man likely to be the next Supreme Court justice.

Kavanaugh led off his speech with this: “The Framers believed that in order to protect individual liberty, power should not be concentrated in one person or one institution.” Bingo!  That is the key point – preventing the concentration of too much power in too few hands.  That he led off with this point is encouraging.  He elaborated by showing a healthy respect for the separation of powers and federalism.

Then he took up the all-important question of who should be in charge of changing the Constitution. Kavanaugh said he believes “that changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.”  In other words, no living and breathing Constitution made up by the courts.  Instead, Kavanaugh said, the Constitution lives and breathes every time the amendment process is used and our elected representatives play their part.

More clues come from his discussion of former Chief Justice William Rehnquist, whom Kavanaugh calls his “judicial hero”.  Kavanaugh spoke favorably of how Rehnquist retrenched from the rulings of the activist Warren court of the 1960s.  Rehnquist opinions carved out exceptions to the exclusionary rule that keeps evidence out of criminal trials.  Rehnquist also found exceptions to Miranda rights which keep prosecutors from using statements of criminal defendants made before they are advised of their right to remain silent and to an attorney. Rehnquist criticized the notion of separation of church and state, and wrote opinions much friendlier to religion than his predecessors did. Rehnquist also wrote opinions that ‘put the brakes’ on the power of the federal government under the Commerce Clause, starting with the first principle that the Constitution limits the federal government to a few defined enumerated powers.   Rehnquist also shied away from the Supreme Court declaring willy-nilly new fundamental rights under the Due Process Clause.  Rehnquist refused to find an unenumerated federal right to assisted suicide because it was not “deeply rooted in the nation’s history and tradition.”  In other words, the Supreme Court should not be engaged in social engineering. Rehnquist tried to rein in federal agencies, writing in dissent that delegating agencies too much power to decide important policy questions is unconstitutional and that the big stuff should be up to Congress, not the agencies.

If you’re looking for more clues as to how Judge Kavanaugh will rule, he gave a second speech last year outlining the difficulties with viewing judges as mere umpires who should just call balls and strikes.  Statutes are ambiguous and constitutional rights have exceptions.  There’s no objective way to come up with the right answer in cases involving each.  Judges can’t help but bring their subjective policy preferences to the interpretation of both.  At the end of the speech, Kavanaugh says he doesn’t have all the answers. 

He may not have all the answers but still, after reading both speeches, I have a hard time seeing Brett Kavanaugh evolve over time into something unrecognizable, as has happened on the Supreme Court before.  Mark Levin wrote in Men in Black about the leftward drift of Justices Harry Blackmun and Anthony Kennedy.  For the moment, at least, it looks like Brett Kavanaugh will uphold the Tea Party core value of limited government under the Constitution while on the Supreme Court, which puts us in a whole lot better place than if it had been a President Hillary Clinton getting to make this nomination.