In 2009, current Senate Minority Leader Chuck Schumer told Supreme Court nominee Sonia Sotomayor that “your record on the bench” was “the best way to get a sense of what your record will be on the bench in the future.”
That commonsense principle was right then, and it remains right today as the Senate Judiciary Committee prepares for its hearing on the Supreme Court nomination of Judge Brett Kavanaugh. That hearing is set to begin on Sept. 4.
Kavanaugh has been on the U.S. Court of Appeals for the D.C. Circuit more than 500 days longer than Sotomayor had served on the 2nd Circuit before her elevation to the high court.
He has authored or joined nearly 700 opinions that span 8,500 pages. The challenge isn’t finding enough material about Kavanaugh; it’s sifting through it all to find what’s most important.
Kavanaugh himself can actually help in this task.
Question 13 in the Senate Judiciary Committee’s questionnaire asks the nominee to identify the “10 most significant opinions you have written.” That’s a good place to start.
The goal in examining these opinions should be to determine, as Schumer has said, what kind of justice Kavanaugh will be.
First on Kavanaugh’s list is Free Enterprise Fund v. Public Company Accounting Oversight Board (2008). The Public Company Accounting Oversight Board is an agency within the executive branch with enormous power to enforce federal securities laws and regulate the accounting industry.
The case addressed whether Congress followed the Constitution’s rules when it established the oversight board.
The Constitution divides federal government power into three branches, giving the “executive power” to the president and requiring him to “take care that the laws be faithfully executed.”
Common sense says that, to do that, the president must be able to supervise the executive branch, including control over who runs executive branch agencies and what they do.
Unlike most executive branch agencies, the oversight board’s five members are appointed not by the president, but by another federal agency, the Securities and Exchange Commission, which can remove those members only for certain reasons and by following certain procedures.
While the president appoints the SEC’s members, he is similarly limited in removing them. The legal question in this case was whether this double layer of insulation, a first in American history, put the agency too far outside the president’s control.
When Kavanaugh’s court said “no” and approved this arrangement, he disagreed and wrote a dissent explaining his position.
He wrote: “This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and law-enforcement functions at the core of the executive power.”
The result, he wrote, “renders this Executive Branch agency unaccountable and divorced from Presidential control.”
Kavanaugh also explained why that’s so important. “Our constitutional structure,” he wrote, “is premised … on the notion that such unaccountable power is inconsistent with individual liberty.”
The Declaration of Independence says that the purpose of government is to secure our inalienable rights to life, liberty, and the pursuit of happiness. The Constitution establishes a structure of government and sets rules for its operation to implement that purpose.
That structure and those rules do not permit an executive branch agency to exercise unaccountable power outside of the president’s control.
On appeal, the Supreme Court cited Kavanaugh’s opinion and adopted his reasoning in reversing the appeals court’s decision. Chief Justice John Roberts also emphasized that the structure of government, including separated powers and accountability, are “critical to preserving liberty.”
The kind of judge that Kavanaugh has been tells us much about the kind of justice he will be. What does this case tell us?
In a totalitarian system of government, the only thing that matters is what government wants to do. But in our system of government, defined by the declaration and structured by the Constitution, there’s also the question of how government may do something.
The issue in this case was whether what government does is more important than how government does it. America’s Founders emphatically said “no.”
Kavanaugh is on their side, insisting that the Constitution’s rules for how government may operate must shape what government seeks to do.
Kavanaugh’s judicial record is long, and this is just the first case on his “Top 10” list. But it tells us that his approach to cases like this that involve government power, accountability, and liberty is exactly what America’s Founders intended.