Wednesday, July 11, 2018

Committed to the Constitution

Few, if any, conceivable Supreme Court nominees are as well prepared for the role as Judge Brett Kavanaugh, whom President Trump nominated yesterday to replace the retiring Anthony Kennedy.

Kavanaugh shares much in common with the president's first Supreme Court nominee, Neil Gorsuch: each attended Georgetown Prep, a Jesuit high school in North Bethesda, Maryland, with Kavanaugh graduating in 1983 and Gorsuch in 1985; and the two clerked together as young men for Justice Kennedy.

Kavanaugh dissented from the court's ruling not to reconsider a panel decision upholding the regulation.

Though Kavanaugh hasn't publicly said that the Supreme Court should reconsider Chevron, he did articulate key criticisms of the doctrine in a 2016 book review published in the Harvard Law Review.

As Kavanaugh explained, "Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common carrier obligations on Internet service providers." Thus, Kavanaugh opined that the FCC order was unconstitutional under the "Major rules" doctrine, which "Helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority."

Democrats seeking to block Kavanaugh's nomination have already seized on this article-with Senate minority leader Chuck Schumer claiming that Trump selected Kavanaugh because "He's worried that Mr. Mueller will go to the court and ask that the president be subpoenaed." But such a position overreads Kavanaugh's position; in his law review article, he merely suggests that Congress should enact a law abating civil lawsuits and criminal prosecutions during a president's time in office, not that such abatements are constitutionally required.

With Democrats still smarting from the Republican Senate's decision not to act on President Obama's late-term nomination of Judge Merrick Garland to the Supreme Court, Schumer and his progressive allies are likely to adopt any rhetoric they can to scuttle the Kavanaugh nomination.

https://www.city-journal.org/html/brett-kavanaugh-constitution-16020.html 

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