Klukowski: Brett Kavanaugh Votes for Constitution, Not Candidates

President Donald Trump's Supreme Court nominee, Judge Brett Kavanaugh, speaks as he officiates at the swearing-in of Judge Britt Grant to take a seat on the U.S. Court of Appeals for the Eleventh Circuit, Tuesday, Aug. 7, 2018, at the U.S. District Courthouse in Washington.
AP Photo/J. Scott Applewhite

WASHINGTON, DC – Judge Brett Kavanaugh takes his obligations as a judge seriously enough that he stopped voting in elections after being confirmed as a judge in 2006, reinforcing his reputation as a fair and independent judge as Sen. Chuck Grassley (R-IA) moves steadily toward Kavanaugh’s confirmation hearing.

An American does not lose his rights as a citizen when he becomes a federal judge, and while judges generally do not make campaign contributions or attend partisan events, many judges continue to cast votes on Election Day.

Not Kavanaugh, who for the past 12 years has instead voted only for what he thinks the Constitution requires, rather than candidates for office. A senior source close to the White House explained to Breitbart News that although Kavanaugh had served as a political appointee in the White House of a Republican president – George W. Bush – when he became a judge on the U.S. Court of Appeals for the District of Columbia Circuit, he decided to forego his legal right to continue casting ballots, to avoid even the allegation that he preferred one political party or agenda over another.

“As a judge, Kavanaugh’s sole client is the American people and his agenda is the Constitution and the rule of law,” this senior adviser added. “He wants to avoid giving anyone reason to question that reality.”

Much has been said about Kavanaugh as a “judge’s judge.” The fact that he does not even vote for politicians anymore – which is a private act, and therefore one that many federal judges continue to exercise and that judicial ethics rules allow – is the latest item bolstering his image as someone who is stringently independent.

Kavanaugh’s reputation for independence is primarily derived from his judicial record, however – especially cases where special interests pushed hard for outcomes that would also lead to praise from editorial boards and pundits, but where he voted the other way because he thought it is what the law required.

In Coalition for Responsible Regulation v. EPA, Kavanaugh wrote in dissent that burdensome carbon regulations for power plants and other facilities created by the Environmental Protection Agency (EPA) during the Obama administration exceeded the EPA’s authority in federal law.

An agency cannot “adopt absurd or otherwise unreasonable interpretations of statutory provisions,” wrote Kavanaugh, reasoning that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.”

The Supreme Court agreed with Kavanaugh, reversing the D.C. Circuit.

In another EPA case, White Stallion Energy Center LLC v. EPA, Kavanaugh again dissented, writing that EPA must consider economic costs before imposing major regulatory rules on electric utilities.

Noting that the rules that would have cost about $9.6 billion a year, Kavanaugh opined that “as a matter of common sense, common parlance, and common practice, determining whether it is ‘appropriate’ to regulate requires consideration of costs.” The EPA’s methodology departed “from the clear statutory scheme, standard agency decisionmaking, and the common understanding of the term ‘appropriate’ in this regulatory context.”

Once again, the Supreme Court agreed with Kavanaugh, reversing the D.C. Circuit.

“Under the Constitution’s separation of powers,” wrote Kavanaugh in U.S. Telecom Association v. FCC:

Congress makes the laws, and the Executive implements and enforces the laws. The Executive Branch does not possess a general, free-standing authority to issue binding legal rules.  The Executive may issue rules only pursuant to and consistent with a grant of authority from Congress (or a grant of authority directly from the Constitution).

Consequently, an agency cannot exercise “expansive regulatory authority over some major social or economic activity” unless Congress clearly authorizes it.

Kavanaugh’s judicial philosophy has dismayed many Democrats, who seem to prefer a judge who is essentially another politician on the bench, cast judicial votes mirroring the legislative votes of leftwing lawmakers.

Democrats’ reaction to Kavanaugh contrasts sharply with Grassley’s, who as chairman of the Senate Judiciary Committee has been a steady hand on the wheel during the hyperpartisan saga over President Trump’s Supreme Court pick.

Grassley has by all accounts gone above and beyond in accommodating Democrats’ request, securing 900,000 pages of Kavanaugh documents for senators to review. Comparing the two most recent Supreme Court nominees, officials released 172,000 pages of documents to review for Elena Kagan, and 184,000 pages for Neil Gorsuch.

But Grassley is managing to maintain an orderly schedule while being generous with requests for documents, planning to hold hearings on Kavanaugh in early to mid-September, keeping the Senate on schedule to have the Supreme Court back to full strength with nine justices when the Court’s annual term begins on October 1.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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