Posted by National Review
Brett Kavanaugh Is an Excellent Judge, but Is He the Best Choice?
By David French
Since the moment Justice Kennedy stepped down, an intense, mostly friendly battle has been waged in public and in private over Judge Brett Kavanaugh. Some of the claims are silly. He’s no “squish.” He’s a brilliant jurist who’s written some of the best and most influential appellate-court decisions in the United States. And whisper campaigns that call him the “low-energy Jeb Bush pick” or claim that he’d somehow be a “compromise” nominee are simply wrong.
Let’s put it this way: If Kavanaugh is some sort of deep-cover David Souter, he’s done a remarkably good job of hiding it, building a mountain of stellar originalist jurisprudence. Ed Whelan has been doing yeoman’s work over on National Review’s Bench Memos blog, righteously defending Kavanaugh’s record on religious liberty, the Second Amendment, free speech, immigration, and the administrative state. And Ed isn’t alone. Pieces from former Kavanaugh law clerks at The Federalist and at NRO have ably defended him from attacks and highlighted the best parts of his jurisprudence.
In evaluating Kavanaugh, there’s only one reasonable conclusion to draw: He’d be an excellent Supreme Court justice, and he would make the Court substantially more originalist and rigorous.
But saying that he’s an excellent pick is not the same thing as saying that he’s the best available pick. There’s a difference between a home run and a grand slam. The question — given this unique moment in which the Trump administration is listening to the best conservative legal minds, Republicans control the Senate, and the filibuster is a thing of the past — is whether Kavanaugh represents the grand slam.
I have my concerns, and those concerns are rooted in two cases that have been oft-misrepresented in the debate over Kavanaugh but are consequential nonetheless. The first is Seven-Sky v. Holder (better known as Kavanaugh’s Obamacare case). The second is Priests for Life v. HHS (an Obamacare contraception-mandate case.) In both cases, his reasoning is sharp and his legal decisions are defensible. In both cases, however, I believe he made important errors.
Let’s deal with Seven-Sky first. Judge Kavanaugh wrote an opinion dissenting from the majority’s determination that it had jurisdiction to hear the plaintiff’s challenge to Obamacare. He did not reach an opinion on the underlying merits of the case, which is to say, on the question of whether Obamacare was constitutional.
