Balkinization: Brett Kavanaugh's Cliches

Brett Kavanaugh's Cliches

Mark Graber

Donald Trump and Brett Kavanaugh offered the American people two clichés when describing how Supreme Court justices should decide cases. The first is that they must interpret the Constitution as written. The second is that they should use common sense. One problem is that in many important cases the two conflict. The more serious problem is that when the two conflict, Kavanaugh always selects the option that promotes Republican policies and politics.

The Constitution as written belies Kavanaugh’s claims that sitting (Republican) presidents cannot be indicted. No provision in the Constitution explicitly forbids the indictment of a sitting president. No provision was self-consciously intended to forbid the indictment of a sitting president. Of course, an indictment would interfere with presidential duties, but indictments also interfere with the duties of every federal officer mentioned in the Constitution, every federal officer not mentioned in the Constitution, every private person whose actions are of consequence to the federal government, every state official (did someone say 10^th Amendment), and every private person whose actions are of consequence to state governments. For that matter, if we are worried about a distracted president, then the president’s family, friends, and businesses should be immune to criminal processes. We ought not put down the president’s dog for fear of upsetting the president, even if the dog has rabies and has been biting children. Common sense permits us to make some distinctions, but none of these distinctions are rooted in the Constitution as written.

If, however, common sense is our guide, then Kavanaugh’s claims that persons have a Second Amendment right to bear assault weapons and that the federal government may prevent a very pregnant alien teenager from having an abortion fall by the wayside. Common sense and the English language make clear that something called an “assault rifle” is not primarily a defensive weapon. Common sense and basic human decency make clear that one should not delay abortions for very pregnant frightened teenagers, particularly those who have a limited understanding of the medical system in the United States. The Constitution as written might be construed to defy common sense, but the arguments for assault weapons and forcing pregnant teenagers to become mothers are rooted solely in the written Constitution, not common sense.

These contradictions bother neither Trump nor Kavanaugh. When the Constitution as written interferes with Republican policies, they argue common sense. When common sense interferes with Republican policies, they argue the Constitution as written. When both are inconsistent with Republican policies and politics, no doubt a different cliché will be trotted out. That Trump choose the only justice on the short list whose career outside the court was devoted to the single-minded pursuit of Republican party policies and politics says far more about would-be Justice Kavanaugh’s judicial commitments than the clichés uttered when he was nominated.

UPDATE: Several people have noted that the Minnesota Law Review article in question declares only that Kavanaugh has "serious questions" about whether a president can be criminally indicted. But, the very slightly modified version of the argument goes, a textualist ought not have serious questions, since the text nowhere indicates presidential (or congressional or judicial) immunity from criminal process. Such immunity might make common sense and might be consistent with purposive interpretation, but then we are discussing judicial discretion rather than calling balls and strikes.

Posted 8:58 AM by Mark Graber [link]