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SCOTUS Pick Set for July 9: Two Thoughts on Judge Kavanaugh [UPDATED]
Andrew Hyman

President Trump is aiming for July 9 to announce a U.S. Supreme Court nominee.  There are 25 known contenders, and you can find lots of info about each of them at a website I set up: www.tifis.org/Trump.html

The most recent scuttlebutt is that there are two main contenders, plus one dark horse.  The two main contenders and the dark horse are (allegedly) U.S. circuit judges Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge, respectively.  Did I mention that you can find info about each of them at www.tifis.org/Trump.html?

Now comes the delicate part of this blog post, because I want to briefly critique Judge Kavanaugh, who is supported by an "Army" of lawyers.  The following comments are a bit critical, but this should not be taken as opposition to Kavanaugh, because the main question should always be "Who is best?" rather than "Who is perfect?"

That said, I want to point now to two judicial opinions of his that I find concerning: Seven-Sky v. Holder (2011) which sheds light about how much of a textualist Judge Kavanaugh is (textualism, of course, is a leading form of originalism), and In Re Aiken County (2013) which illustrates how he deals with separation of powers and executive branch discretion as a matter of text and original meaning.  Let's briefly consider the two cases in that order.

The Seven-Sky case preceded the U.S. Supreme Court case upholding the ACA ("Obamacare").  In Seven-Sky, Kavanaugh dissented as to jurisdiction and therefore did not address the merits; he said the penalty for disobeying the individual mandate was a "tax" (or at least should be treated like a "tax"), and so the Anti-Injunction Act denied the courts jurisdiction.  The Supreme Court later unanimously disagreed, saying it was not a tax (or to be treated like a tax) for purposes of the Anti-Injunction Act.  Of course, one should not jump to the conclusion that the nine justices were correct while Kavanaugh was incorrect, but still this was a very big case that needs to be considered now.  

Kavanaugh dissented from Judge Silberman's opinion, which stated: "If penalties were equivalent to taxes for all purposes — including the application of the Anti-Injunction Act — the last sentence of section 6671 would be superfluous.  It is a hallowed maxim of statutory interpretation that we must give effect, if possible, to all words in a statute."  Judge Kavanaugh acknowledged that his interpretation made some words of the statute redundant, but he correctly pointed out that sometimes Congress speaks redundantly.  Interested readers can judge for themselves whether Kavanaugh made much of an effort to avoid a redundant  interpretation, and whether Silberman and the nine justices tried too hard to avoid such an interpretation.

Now on to In Re Aiken County.  This case dealt with the scope of the Executive's authority to disregard federal statutes.  A few weeks later, his opinion occasioned much discussion here at this blog (see Mike Ramsey on 08/16/2013 and 08/18/2013, Mike Rappaport on 08/20/2013, and me on 09/13/2013).  The following year, Kavanaugh elaborated on his view in Aiken that a president can decline to execute laws he does not like, by exercising prosecutorial discretion as to private parties. 

It is widely accepted that prosecutorial discretion has several facets including these: (1) presidents can exercise prosecutorial discretion as necessary due to limited prosecutorial resources provided by Congress; (2) presidents can also exercise prosecutorial discretion to not enforce a statute when they think the statute is unconstitutional; and (3) presidents can also exercise prosecutorial discretion on a case-by-case basis as a corollary to the pardon power provided that the offense has already been committed (i.e. provided that the president does not effectively give a license to go commit future offenses).  It's this last prong that Judge Kavanaugh would expand.  He wrote: “The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law <i>or</i> because of policy objections to the law, among other reasons”.  He advocated “the power to decline to prosecute a violator of a law simply because of the President’s belief that the law is oppressive.”  

This doctrine supported by Judge Kavanaugh would mark a very significant change in the law (<i>see generally</i> comments by Michael McConnell, Michael Dorf, John Yoo, Charles Krauthammer as well as George Washington (saying "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to" that duty) and Thomas Jefferson (saying the Sedition Act was not merely unwise or oppressive but unconstitutional)).  Therefore, it is well worth considering In Re Aiken County during this turbulent SCOTUS nomination season.

MICHAEL RAMSEY adds:  For other views of Judge Kavanaugh by two of his former clerks, see here by Jennifer Mascott (Georgetown) at Notice & Comment blog, and here by Sarah Pitlyk at NRO. (Via How Appealing).

FURTHER UPDATE: David Lat at Above the Law says it will be Kavanaugh or Judge Raymond Kethledge: The Supreme Court Sweepstakes: The Latest State Of Play — And The Case For Judge Kavanaugh.

UPDATE/CORRECTION (by Andrew Hyman) (July 4): Due to a glitch, the sixth paragraph above (the one that begins "Kavanaugh dissented from Judge Silberman's opinion ....") should be replaced with this: "

The opinion of Chief Justice Roberts and the dissent of Justice Scalia agreed with each other on this point, and Scalia incisively said: 'That the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act.'  Scalia’s observation about the plain text in turn refutes Judge Kavanaugh’s assertion that, 'If we are to give effect to the plain text of the statute, the Anti-Injunction Act must bar pre-enforcement suits challenging the Affordable Care Act’s penalties for failure to have health insurance.'