MI Responds: President Trump Nominates Judge Brett Kavanaugh for U.S. Supreme Court

On July 9, 2018, President Trump announced the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy to the Supreme Court of the United States.

“With undergraduate and law degrees from Yale, a clerkship with Justice Kennedy, extensive executive branch experience in the Bush White House, and a dozen years’ experience on the U.S. Court of Appeals for the D.C. Circuit, Brett Kavanaugh comes right out of central casting for the Supreme Court. But what has me most excited about his nomination is his willingness to challenge the administrative state, in a host of published judicial opinions. Judge Kavanaugh has embraced a vigorous application of the “major rules” doctrine requiring clear Congressional enactments, not agency determinations, on questions of deep economic and political significance.” — James R. Copland, senior fellow and director of legal policy

“While Judge Brett Kavanaugh’s nomination could spell trouble for the modern administrative state—which has relied on the Court’s adherence to judicial doctrines about which the Judge has expressed skepticism—Judge Kavanaugh’s impact is likely to extend beyond the realm of administrative law. Kavanaugh’s record is solidly conservative on a host of issues from the Second Amendment (dissenting from an opinion that upheld D.C.’s assault weapons ban in 2011) to campaign finance (holding in 2009 that new Federal Election Commission rules restricting non-profit fundraising violated the First Amendment). Perhaps most interestingly is his commitment to mens rea, Latin for “guilty mind.” In U.S. v. Burwell, Kavanaugh dissented from the D.C. Circuit majority opinion, which upheld a conviction based on the use of an automatic weapon despite the defendant’s sincere belief that the firearm was a semi-automatic. Such a disposition in criminal cases should delight many criminal justice reformers who have long cited the erosion of mens rea as a key element of the broader overcriminalization problem.” — Rafael Mangual, deputy director of legal policy

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James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. Follow him on Twitter here.

Rafael A. Mangual is the deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.