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09/05/2018

Emily Bazelon & Eric Posner on Judge Kavanaugh
Michael Ramsey

In the New York Times, Emily Bazelon & Eric Posner: Who Is Brett Kavanaugh? Contrary to what supporters say, he’s no originalist.  From the introduction:

Brett Kavanaugh’s supporters call him an originalist. It’s a natural label to apply to the conservative judge who is President Trump’s choice for the Supreme Court.

In theory, originalism gives judges a method for transcending politics by interpreting the Constitution based on its meaning when it was ratified in 1788 or later amended. Since the 1970s, originalism has been both an animating principle and a marketing success for conservative jurisprudence. Fairly or not, conservatives have used it as a cudgel against liberal judges, attacking them for inventing new rights to protect minorities, political dissenters and criminal suspects. Its selling point has been its claim to neutrality.

But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.

And from later, arguing that Judge Kavanaugh has not claimed to be an originalist:

Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch — lay claim to textualism as a guiding principle.

I had a brief comment on an earlier version of this argument that Professor Posner published on his blog -- see here.

(Thanks to Michael J. Perry for the pointer).