Kavanaugh the Right Pick for Trump
Over 20 percent of voters in the 2016 election identified the Supreme Court as the single most important factor in their decision, and a majority of this group (56 percent) voted for President Trump.
This was partly due to President Trump’s historic campaign, during which he frequently identified two legal issues central to his agenda: restoring the nation’s religious heritage and protecting our fundamental liberties, namely the right to keep and bear arms.
To this end, President Trump appointed Justice Neil Gorsuch, as well as many stellar lower court judges. Now, the retirement of Justice Kennedy presents President Trump with his first opportunity to leave a lasting legacy on American law.
This is President Trump’s chance to keep the most fundamental promise of his historic campaign: to restore American sovereignty.
Political scientists and legal scholars have long noted that presidents contribute their distinct constitutional visions through judicial appointments. These “judicial regime changes” come to constitute the defining constitutional identity of a political era. The Bush constitutional regime was characterized by the War on Terror, and the Obama constitutional regime was characterized by the Administration’s diversity agenda.
The question for President Trump, then, should be this: Which of the judges under consideration offers the greatest promise of defending the Constitution in a way that is tethered to and anchored by President Trump’s America First agenda?
All of the judges on the President’s short list are preeminent jurists and solid conservatives with long records of faithfully interpreting the Constitution. That much is clear. But which one is most likely to be the America First Justice, the one who most clearly understands the defining crisis of our era?
I’m usually reluctant to make sweeping predictions about how lower court judges would decide cases if appointed to the Supreme Court, but I can say this: The best publicly available data indicate that, of all the judges under consideration, Judge Brett Kavanaugh is most likely to advance President Trump’s America First constitutional vision.
In addition to his impeccable judicial credentials and originalist bona fides, Judge Kavanaugh’s jurisprudence reflects a refreshingly deep and nuanced understanding of how our immigration and trade laws are designed not simply to evince legal principles in the abstract, but to effectuate real-world consequences for American people and interests.
Three cases in particular illustrate why Judge Kavanaugh is the right choice for President Trump.
One, in Fogo de Chao v. Department of Homeland Security (2014), Judge Kavanaugh dissented from the majority opinion, which held that Brazilian churrasqueiro chefs and servers qualified for L-1B "specialized knowledge" visas. The restaurant (a Brazilian steakhouse) had claimed that these workers were eligible for L-1B visas on the ground that “a cook ‘born in America’ cannot learn to cook Brazilian steaks as well as a Brazilian-born person.” The majority agreed with the restaurant.
But Judge Kavanaugh’s dissent cut right through the restaurant’s masquerade, explaining that these workers were not eligible for L-1B visas because, under our immigration law, “mere economic expediency does not authorize an employer to displace American workers.” Our immigration laws were not designed to provide an endless supply of cheap labor. Our immigration laws were designed to protect American workers and interests. Likewise, in Agri Processor Co v. NLRB (2008), a case involving whether unauthorized workers may vote in union elections, Judge Kavanaugh again wrote a forceful dissent, this time on the ground that the National Labor Relations Act does not extend to such workers.
The majority relied on a judicial precedent decided before the 1986 passage of the Immigration Reform and Control Act (which prohibited the knowing employment of unauthorized labor). Judge Kavanaugh’s dissent explained how the majority, in allowing unauthorized workers to vote in union elections, undermined the purpose of this important Act – and at the expense of the labor rights of “legal workers, whose votes may have been diluted or overridden in the union election by the votes of illegal immigrant workers.”
Again, the underlying principle of Kavanaugh’s reasoning was American sovereignty – namely, that our immigration and labor laws are designed to protect American workers and interests, not big business. Three, in American Meat Institute v. Department of Agriculture (2014), Judge Kavanaugh wrote a powerful concurring opinion in a case involving whether the federal government violated the First Amendment’s Free Speech Clause by requiring “country of origin” labels. Business interests have generally resisted such requirements, and they have turned to the Free Speech Clause for protection, claiming that the government has no authority to compel businesses to engage in this speech – which would mean not only that American consumers have no right to know where their food or products come from, but also that manufacturers have little incentive to keep production within our national borders.
Under the Supreme Court’s First Amendment jurisprudence, a restriction on “commercial speech” (i.e., speech relating to commercial transactions) is permitted only if there is a substantial governmental interest supporting the restriction.
In this case, Judge Kavanaugh concurred with the majority in upholding the constitutionality of these labeling requirements. But his concurrence went further than the majority in clarifying the “substantial governmental interest” at stake here: The labeling requirement, he wrote, “is justified by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.”
This is an example of what I have previously dubbed “America First originalism” – a process of constitutional interpretation that does not look simply to abstract principles floating in ether, but to concrete and granular “historically rooted interests” that support and protect “American manufacturers, farmers, and ranchers.”
That is not to say that the other jurists under consideration would not make excellent Supreme Court Justices. They are all avowed originalists, with a demonstrated commitment to conservative jurisprudential principles. But they have thin or questionable records on the defining issue of the 2016 election – whether American sovereignty, and the forgotten American worker, will once again play a critical role in our polity.
Judge Kavanaugh is the only candidate with a demonstrated legal understanding of the political issues that inspired millions of forgotten Americans to come out to the polls and vote for Donald Trump. Judge Kavanaugh is the America First choice. And he should be President Trump’s choice for the Supreme Court.