D.C. Circuit Review – Reviewed: Justice Brett Kavanaugh? Some Preliminary Thoughts

by Aaron Nielson — Friday, July 13, 2018@Aaron_L_Nielson

For obvious reasons, a lot of folks are thinking hard about Judge Brett Kavanaugh. So today seems like a good one to share some preliminary thoughts, especially because the Senate Judiciary Committee will soon schedule hearings. I’ve been following the D.C. Circuit for a while now. And by any measure, Judge Kavanaugh is a major figure on the Court. His dissents, in particular, matter a great deal because the Supreme Court pays attention to what he says.

My conclusion: Although there were many talented folks on the list (and, indeed, many talented folks not on the list), based on what I know to date, I believe Judge Kavanaugh will serve the nation well on the Supreme Court. To be clear, however, I don’t claim to be neutral. So please feel free to discount my views.

I begin with a cross-cutting point. Oversimplifications make the world easier to process — alas, too easy. “Make things as simple as possible, but not simpler.” A lot of folks ask, for instance, whether Judge Kavanaugh is conservative or moderate. But what does that mean? To offer an example from the Supreme Court, what label applies to a justice who refuses to allow a party to forfeit its right to an Article III court by failing to timely object? The leading advocates for a robust Article III include Chief Justice Roberts and Justice Thomasand Justices Brennan and Marshall. The better way of thinking about these issues, it seems to me, is to work through five questions: (1) Does the judge have an approach to deciding cases? (2) Is that approach sound? (3) Is the judge consistent in how he or she applies that approach? (4) Does the judge have the horsepower to handle the work? and (5) Does the judge have the temperament to handle the work? Based on what I know about Judge Kavanaugh, for each of these questions the answer is yes.

Does Judge Kavanaugh have an approach to deciding cases?

Judge Kavanaugh takes legal texts seriously. Consider, say, NRDC v. EPA from 2014. The case is complicated (D.C. Circuit opinions often are!), but it includes a fascinating discussion of EPA’s authority to create an affirmative defense. Various environmental groups objected. Kavanaugh agreed with them, based on his reading of the text: “By its terms, Section 304(a) clearly vests authority over private suits in the courts, not EPA. As the language of the statute makes clear, the courts determine, on a case-by-case basis, whether civil penalties are ‘appropriate.’ By contrast, EPA’s ability to determine whether penalties should be assessed for Clean Air Act violations extends only to administrative penalties, not to civil penalties imposed by a court.” Moreover, “EPA’s authority to issue ancillary regulations is not open-ended, particularly when there is statutory language on point. … EPA cannot rely on its gap-filling authority to supplement the Clean Air Act’s provisions when Congress has not left the agency a gap to fill.”

This is just one example. There are many, many others. Here is a recent illustration of his approach (alteration mine):

Bais Yaakov v. FCC

Is Judge Kavanaugh’s approach sound?

This may be the most debated question in law. Legal academics spend hours fighting about textualism. This post is not the place to recap that debate.

Suffice it to say here, my view is that the Kavanaugh’s approach is sound. Granted, textualism isn’t a silver bullet; it does not make every case easy. But I agree with the late Justice Scalia that perfection is not the test. Taking texts seriously, moreover, sometimes means courts reach results that, as a policy matter, they don’t like. That is how it should be. If judges like all of their decisions, they are probably doing something wrong.

No doubt, some will conclude that they cannot support a textualist, despite Justice Kagan’s observation that “we are all textualists now.” But in so doing, I hope they do not base their conclusion about Kavanaugh on individual decisions rather than the methodology he espouses — unless, that is, they can offer a better methodology, which is no easy feat. It is waltzing on quicksand to follow the text unless it leads to bad outcomes. Not only do we disagree about what is and is not a “bad” outcome, but more importantly, the Constitution empowers Congress, not courts, to make such decisions. Indeed, here is how Judge Kavanaugh recently put it:

Americans for Clean Energy v. EPA

Note — Sandoz is an unanimous decision of the Supreme Court; whatever you think of textualism, it is hard to criticize it as outside of the mainstream.

Is Judge Kavanaugh consistent?

It is no good to have a sound approach if it is only selectively applied. Any excuse may do for a tyrant, but for not a judge. Again, sometimes a judge’s methodology must result in outcomes he or she doesn’t like.

So has Judge Kavanaugh’s methodology resulted in “liberal” outcomes? Yes. For instance, in In re Murrary Energy Corp., Judge Kavanaugh ruled against a large coalition of “red” States in favor of the EPA and a large coalition of “blue” States:

In re Murray

To be sure, despite Judge Henderson’s disagreement with Judge Kavanaugh, some might say that Murray was an easy case; in any event, no one should rely on a single data point. But there are others cases too. And some of these cases are quite significant. Consider his dissent from American Radio Relay v. FCC:

American Radio Relay v. FCC

It appears, in other words, that Judge Kavanaugh would follow the text to where he thinks it leads — even if doing so benefits regulators in a pretty significant way.

For what it is worth, I do not agree with all of his decisions (in fact, I don’t agree with any judge about everything, except for maybe Judge Randolph*). For instance, I’m not yet on board with his approach to acquitted conduct:

United States v. Bell

I’m sympathetic as a policy matter, and perhaps I’m missing something, but can a lower court judge really use its sentencing discretion to sidestep precedent it doesn’t agree with?

Nor, for that matter, am I sure he is right about regulatory procedures. Arguably the structure of the Administrative Procedure Act requires agencies to turn over their data and respond to material comments, else the right to submit to comments — which the APA creates — would too often be an empty one.

But you know what? I suspect everyone who reads Judge Kavanaugh’s opinions will find some cases they disagree with. You aren’t a fan of qualified immunity? Well, you may be troubled by his aggressive — and now vindicated — dissent in Wesby v. District of Columbia? You think courts read the Anti-Injunction too broadly? Well, you won’t be a fan of his majority opinion in Florida Bankers Association v. TREA. And so on. Many folks will disagree with aspects of Kavanaugh’s jurisprudence, and no doubt, some of that criticism merits thoughtful consideration; “admin law” isn’t easy. But assuming he got some cases wrong — which, given the law of large numbers, is inevitable; no one bats 1.000 — it does not follow that he isn’t qualified to be a justice. Then-Justice Renhquist, for instance, botched formal rulemaking. But surely no one thinks that is a good reason to say he shouldn’t have been on the Supreme Court.

Of course, it is hard to evaluate Judge Kavanaugh’s opinions without reading the briefs. And I have not read all of his opinions, nor have I discussed here some of the more controversial ones (which I suspect will be the subject of future posts). My analysis is still a work in progress. But to me, these opinions suggest that he tries to play it straight.

Does Judge Kavanaugh have the horsepower to do the job?

This is the easiest question on the list: Yes. He is smart. Don’t believe me? Read his opinions. For instance, his separate opinion in El-Shifa v. United States is fascinating. I’m also not sure it is right — the political question doctrine is a murky mess. For purposes here, however, it is enough to appreciate his intellect. I have been assigning that en banc case to my Federal Courts students for years precisely because all of the opinions, including Kavanaugh’s, offer high-quality reasoning.

Another point in his favor, moreover, is that this horsepower is used for all sorts of cases, not just the front-page ones. Here are some examples. Lots of cases at the Supreme Court are, well, technical. And junior justices tend to author the “boring cases.” But boring or not, those cases are often quite important, even if law students aren’t rushing to write notes about them.

If you want more proof, moreover, consider this: It is not by accident that he has sent dozens of clerks to the Supreme Court, nor that his clerks have been hired by Chief Justice Roberts and Justices Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Breyer, Alito, Sotomayor, Kagan, and Gorsuch. I think it is safe to say that no other circuit judge has sent clerks to so many different chambers. The Justices know that a year with Judge Kavanugh is good training, and a judge does not earn that sort of reputation by being foolish.

Finally, does Judge Kavanaugh have the temperament to do the work?

Collegiality matters. Obviously, a judge should not compromise what he or she thinks when it comes to legal analysis. But there are lots of issues that aren’t of that sort. Does the judge carry his or her share of the work? Is he or she polite? Will he or she consider good-faith criticism? Represent the United States well when visiting with foreign judges and leaders? These questions matter. Here, too, my understanding is that Judge Kavanaugh passes the test. In my limited experience, he is as nice as he appears. That doesn’t mean he is a pushover; he isn’t — nice doesn’t mean weak. Likewise, for what it is worth, he’s also funny. And although he left Kirkland & Ellis before I started there, I’m told that he was team player.

I plan on reading all of Judge Kavanaugh’s opinions this summer. But I do feel comfortable saying this: Based on what I know so far, he merits respect. I believe he will be an excellent justice.

***

Thankfully, other than Judge Kavanaugh’s nomination, the D.C. Circuit had a relatively slow week — in particular, there were no cases today (which is unusual for a Friday in July).

The most noteworthy opinion, perhaps, is Moreley v. CIA. Why? Because it may be Judge Kavanaugh’s last opinion on the D.C. Circuit, and it was issued on a Monday afternoon, possibly tipping the world off to Kavanaugh’s forthcoming nomination. (For what it is worth, I suspect the decision to issue the opinion was made before he was selected by the President; it takes time to finalize an opinion — the Court probably agreed to issue it early out of an abundance of caution.) A per curiam panel (Judges Kavanaugh and Katsas) decided to “end” a “FOIA case” (note, the panel didn’t write out “Freedom of Information Act” but jumped straight to FOIA) after “a staggering 15 years,” eight of which have been about attorney’s fees. The FOIA request concerns President Kennedy’s assassination. Under the statute, a court “may” — not “shall” award fees. The D.C. Circuit has “has said that district courts should consider four rather amorphous factors: (i) the public benefit from the case; (ii) the commercial benefit to the plaintiff; (iii) the nature of the plaintiff’s interest in the records; and (iv) the reasonableness of the agency’s withholding of the requested documents.” The panel “deferentially” reviewed the district court’s weighing of those factors and affirmed: “One can debate whether the District Court’s decision denying attorney’s fees was correct. But the question for us is not whether the District Court’s decision was correct, but rather whether the District Court’s decision was at least reasonable.” Judge Henderson dissented:

Moreley v. CIA

The most significant opinion, however, may be Philipp v. Federal Republic of Germany. Here, Judge Tatel (joined by Judges Griffith and Wilkins) affirmed denial of a motion to dismiss by Germany asserting “immunity from suit under the Foreign Sovereign Immunities Act” relating to “a valuable art collection allegedly taken by the Nazis.” The Court determined that the taking of art “amount[s] to a commission of genocide” because “Congress has twice made clear that it considers Nazi art-looting part of the Holocaust.” The Court also determined that a “forced sale [may] qualify as a genocidal taking” and that Philipp’s ancestors were pressured by the Nazis “to sell [the art] for well below market value.” There is a lot more going on in this case. It’s worth a read.

Professors should consider assigning Delaware Riverkeeper Network v. FERC to students. Judge Katsas (joined by Judges Griffith and Edwards) denied Riverkeeper’s due process challenges, and, along the way, addressed agency bias. Here is a sample:

Delaware Riverkeeper Network v. FERC

In Delaware Department of Natural Resources v. EPA, Judge Griffith (joined by Judges Rogers and Ginsburg) denied a challenge to the EPA’s decision to grant “an extension for a multistate region to comply with national ozone standards.” Delaware claimed that EPA cannot consider “an attainment-date extension for a multistate area when not all states in the area have asked for it.” The Court disagreed based on the “unambiguous meaning” of the statute. There is an interesting discussion of “cooperative federalism” in this case — a case in which the States were not cooperating.

In Secretary of Labor v. Consolidation Coal Company, Judge Millet (joined by Judges Srinivasan and Katsas) disagreed that certain mine safety violations were not “significant and substantial”; the Court reasoned that the administrative law judge “relied critically on types of evidence long foreclosed by Commission precedent.” And in Roberts v. NTSB (the shortest published opinion I recall seeing, beating this one by Judge Kavanaugh), a per curiam panel (Judges Wilkins, Sentelle, and Randolph) denied an application “for attorney’s fees and expenses” because the statute “requires a party … to file an application within thirty days of final judgment.”

Next, in Veritas Health Services, Inc. v. NLRB, Judge Pillard (joined by Judges Griffith and Millett) denied a petition to review the Board’s order that a company committed an unfair labor practice by withdrawing recognition from a union; this hefty opinion contains an interesting discussion of the “irrebuttable presumption of majority support.” In her short concurrence, Judge Millett expressed “concern about the Board’s continued failure to establish any discernable, consistent standard for granting and denying intervention in agency proceedings” and that “[t]he Board’s persistent failure to put any meat on the regulation’s bare bones leaves individual intervention decisions at risk of arbitrary and inconsistent resolution.”

Finally, the Court issued an order in a case called United States v. Paul Manafort, Jr. Yup — that Manafort. And that’s the week.

 

* I kid … mostly!

 

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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 “D.C. Circuit Review – Reviewed: Justice Brett Kavanaugh? Some Preliminary Thoughts

  1. Aaron Nielson Post author

    The purpose of this week’s (overly long!) post isn’t to get into the weeds of acquitted conduct, so I’ll drop this thought in the comments. I’m not an expert on sentencing, much less acquitted conduct, but thinking about it some more, perhaps there are two types of situations to consider. If, in the totality of the circumstances of a particular sentence, a judge determines that relying on acquitted conduct does not serve the purposes of sentencing set out in § 3553(a), then presumably it is fine to not rely on such conduct. On the other hand, if a trial court were to categorically state that it wouldn’t rely on acquitted conduct, no matter what, couldn’t that be an abuse of discretion sometimes, depending on the specific facts at issue? Or perhaps there is a third category still; what if a trial court were to say, ‘I’m not relying on acquitted conduct because I think doing so is unconstitutional’? Presumably that would be inappropriate because, given the precedent on the books, that is wrong, and an error of law is an abuse of discretion. Perhaps a sentencing guru will chime in. (Judge Kavanaugh limits his point to “appropriate cases.” So perhaps we aren’t that far apart.) Thanks Asher Steinberg — via email — for prompting me to think more on this issue.

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