Another View of Judge Kavanaugh and “The Artful Dodge”

by Aaron Nielson — Monday, July 16, 2018@Aaron_L_Nielson

It isn’t a compliment to say that a judge “dodged” an issue. After all, to “dodge” is to “evad[e] by sudden bodily movement” — “an artful device to evade, deceive, or trick.” And throwing the word “artful” in front (to the extent it isn’t redundant, as “dodge” already includes “artful”) doesn’t turn it into a compliment. It just means a judge is a talented deceiver or trickster, which, I suppose, in one sense is better than a blundering deceiver. But in another, more relevant, sense, a talented deceiver is much worse.

My mind turned to artful dodging because of a story I ran across today at How Appealing: “The Artful Dodge That Saved Kavanaugh From Supreme Court Doom.”* Here is the backstory.

In 2011, the D.C. Circuit confronted a constitutional challenge to the Affordable Care Act. The issue, of course, eventually ended up in the Supreme Court. Can Congress impose a “mandate” to purchase insurance? Judge Kavanaugh was on the panel. This is how the article explains what happened next:

It was a career-defining moment for the aspiring Supreme Court justice, who was 46 at the time. The case promised to be a political bomb splitting two powerful forces. On one side was the Republican Party, which made Kavanaugh a judge and wanted to see the law invalidated under a limited vision of federal authority to regulate interstate commerce. On the other were millions of Americans poised to gain access to health insurance — in some cases for the first time ever — backed by scholars who said axing the law would be a grave error of judicial activism and taint the courts.

Kavanaugh ducked the issue.

While the other two judges on the D.C. Circuit Court of Appeals panel ruled to uphold the law, Kavanaugh dissented and said the lawsuit should be dismissed for lack of standing until after a tax penalty at the heart of the challenge took effect. He cited an 1867 statute known as the Tax Anti-Injunction Act. In doing so, he managed to avoid touching the case on its merits.

Was that an “artful dodge”? In other words, to the extent “dodge” suggests deception, did Judge Kavanaugh believe his own analysis?

I don’t know; I can’t read Judge Kavanaugh’s mind. But no one else can either. So why call it a dodge? At most, all anyone can say is that it is a possible dodge, right?

I do know this, however. Judge Kavanaugh wasn’t the only judge who thought the Anti-Injunction Act applied. The Fourth Circuit also reached that same bottom-line conclusion — in an opinion by Judge Diana Gribbon Motz, who is an influential judge in her own right. And before the Supreme Court, Judge Kavanaugh’s analysis was favorably cited by two former IRS Commissioners and a group of tax scholars.

Likewise, this isn’t the first case in which Judge Kavanaugh has focused on the Anti-Injunction Act. The D.C. Circuit’s Affordable Care Act case was argued in September 23, 2011. On July 1, 2011, Judge Kavanaugh dissented from the en banc D.C. Circuit’s decision in Cohen v. United States, which addressed his panel dissent in a case of the same name. His panel dissent was all about the Anti-Injunction Act. And in August of 2015, he returned to the Anti-Injunction Act. I don’t know whether he is right or wrong about the Act; as I understand it, how to read the statute is a disputed question in the world of tax (this recent article by Kristin Hickman and Gerald Kerska in the Virginia Law Review describes the D.C. Circuit’s cases on this point, including Kavanaugh’s position). But it is an issue that he has thought a lot about for a long time.

I also went back and listened to the oral argument. He explored the issue there too. His analysis is serious. And he sounds sincere to me, for what it is worth.

Finally, in 2011, it would not have been at all clear that “dodging” the issue would have helped or hurt his Supreme Court chances. The strategic decision tree, at that time, would have been quite complex; it would have involved predicting (a) what the Supreme Court would do; (b) what the response to that decision would be by the public; (c) who the future president would be; (d) what the composition of the Senate would be; and (e) whether folks could see through his “dodge” and, if so, how they would respond. Perhaps he took a stab at that sort of strategic analysis. Or perhaps he applied his honest reading of the Anti-Injunction Act.

Now, maybe he is wrong about the Anti-Injunction Act; it is tricky statute. But even assuming for the sake of argument that he is wrong, “no one bats 1.000.” Being wrong about a technical and disputed issue of jurisdiction doesn’t say much about whether he is qualified to serve on the Supreme Court; being dishonest, however, is something else. Suffice it to say here, unless new evidence comes to light, I don’t think there is anywhere near enough evidence to impugn Judge Kavanaugh’s motives.

 

* Note, I realize that authors (here, Sahil Kapur) often don’t write the headlines, so I’m not faulting him for it. Also, to be sure, I don’t claim to be neutral in all of this. So to the extent my post is advocacy, obviously, feel free to discount my views.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

One thought on “Another View of Judge Kavanaugh and “The Artful Dodge”

  1. Tom

    The only quibble I have with this analysis is with this passage:

    “Finally, in 2011, it would not have been at all clear that “dodging” the issue would have helped or hurt his Supreme Court chances. The strategic decision tree, at that time, would have been quite complex; it would have involved predicting (a) what the Supreme Court would do; (b) what the response to that decision would be by the public; (c) who the future president would be; (d) what the composition of the Senate would be; and (e) whether folks could see through his “dodge” and, if so, how they would respond.”

    As to (a), what the Supreme Court would do would be irrelevant to how a young appellate judge aspiring to the Supreme Court in a case where there is no clear Supreme Court precedent to analyze. Factor (c) is a non-issue, especially for a judge with such a well-known “partisan” background. No democratic president would consider him, and there was plenty of time for a republican president to be elected during Kavanaugh’s future window. As to a judge like Kavanaugh, factor (d) favors an inference of dodging as well. A dodge would leave allow him to dodge more freely on the substantive issue at confirmation hearings if democrats controlled the Senate, yet be able to pitch it his dodge to a republican-controlled senate as prudent judicial restraint that judges need to employ to avoid “judicial activism.” Win/win. Factor (e) is belied by your analysis that the issue is significantly more than arguable, so he had nothing to lose by taking the position he did. Looking at these factors as I do, the decision tree suggests a very shrewd and calculated dodge indeed.

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