Brett Kavanaugh, of the U.S. Court of Appeals for the D.C. Circuit, has been nominated to replace Justice Anthony Kennedy on the Supreme Court.
Kavanaugh comes from Administrative Law—was he good at fighting the Deep State?—was appointed and recently praised by George W. Bush, who gave us John Roberts, and George Washington University professor Jonathan Turley, who approved of Neil Gorsuch, suggests Kavanaugh is not an intellect of Gorsuch’s order.
For his part, libertarian-leaning Rep. Justin Amash (R–Mich.) is openly unhappy. He tweets:
Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his 4th Amendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.
Randy Barnett, on the other hand, approves.
I don’t know that libertarians want “big fierce nominees,” but I see what Turley, an interesting thinker himself, is saying in the must-read op-ed, “Why ‘big fierce’ nominees are rare.”
An original thinker is always a good thing (and how few of those there are).
Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers. … The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. …The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. … There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.
Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court.
Jonathan Turley cites Richard Posner and Robert Bork as examples of “big fierce minds,” which simply could not be countenanced on the mediocrity-necessitating SCOTUS.
Brilliant piece. Turley is brilliant.
John G. Roberts Jr.? Please no.
— Ilana Mercer (@IlanaMercer) July 11, 2018