A shift to the right for the Supremes?

Kevin Daley of the Daily Caller suggests that’s the likely result if the U.S. Senate confirms Judge Brett Kavanaugh as the latest associate justice.

His 2003 nomination to the D.C. Circuit was met with intense opposition from Democrats, who stalled his appointment in the Senate for three years. Since joining the appeals court, he has developed a reputation as a text-focused judge who cares deeply about the separation of powers. Some of his best known opinions on the court have involved constitutional challenges to the structure of administrative agencies.

For example, in a 2008 dissent eventually vindicated by the Supreme Court, Kavanaugh argued that the framework of the Public Company Accounting and Oversight Board (PCAOB) was unconstitutional because its members had stronger protections against termination than comparable officials. He reprised a similar argument in a 2016 opinion concerning the Consumer Financial Protection Bureau (CFPB), a pet project of Democratic Sen. Elizabeth Warren of Massachusetts.

Another notable Kavanaugh dissent came in a 2011 challenge to Washington D.C.’s ban on semi-automatic long rifles. The judge argued the district’s ban on rifle possession and its stringent licensing requirements were unconstitutional in light of the Supreme Court’s 2008 D.C. v. Heller decision, which affirmed the constitutional right to possess firearms in the home for self-defense.

The judge is also a professed admirer of the late Justice Antonin Scalia. Speaking at a conference on administrative law at George Mason University’s Antonin Scalia Law School, Kavanaugh called Scalia’s commitment to textualism and judicial restraint “profound and worth repeating often.”

Social science metrics suggest the justice would be a deeply conservative presence on the high court. One influential empirical measure, called a judicial common space score, places Kavanaugh to the right of Justices Samuel Alito and Neil Gorsuch, but to the left of Justice Clarence Thomas.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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