Tuesday, July 10, 2018

What the Trump Nomination of Brett Kavanaugh for Supreme Court Means From a Libertarian Perspective

The President and Brett Kavanaugh
One of the arguments has been used by libertarian Trump fanboys is that President Trump would pick good judges for the Supreme Court.

I have never been excited about this argument.

As I pointed out after Trump nominated Neil Gorsuch for the the Supreme Court:

Libertarians should understand that the essence of the job of a Supreme Court justice is to rule on law as written in the Constitution. That is, the fundamental role of a justice is not to advance liberty but to interpret the Constitution as it applies to specific judicial cases.

This is in direct conflict with libertarianism. Murray Rothbard wrote in 1961:
[T]here can be no really firmly grounded and consistent defense of freedom unless that defense is rooted in moral principle....

I regard Madison as a weak trimmer and fuzzy compromiser, rather than a sagacious combiner. Without the unnecessary Madisonian concessions to the profoundly statist programs and conceptions of Hamilton, the Constitution would have been a far more libertarian and a far more lasting instrument than it has proved to be. But there is more involved here...From any libertarian, or even conservative, point of view, [the Constitution] has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing. The Constitution has been stretched a very long way.

...the instruments set up by the Constitution – in particular, the erection of a monopoly Supreme Court with the final power to decide what is Constitutional – embody a fatal flaw in any constitutional attempt to limit the State. In short, when you give the State itself the final power to interpret the very instrument that is supposed to limit the State, you will inevitably find the Constitution being stretched and distorted, until it becomes merely a means of lending an unjustified aura of prestige to the State’s despotic actions.
To be sure, some justices can be worse than others. Activist justices can contort and twist the Constitution in all types manner for particularly totalitarian outcomes and it is indeed better that a justice be on the bench that is not such a twister.

However, because a justice is not an activist, it does not mean he is, as Rothbard would have it, a firmly grounded defender of freedom. He is a defender of the Constitution as he sees it and that is the problem.
Indeed, we recently saw the dangers of non-libertarian readings of the Constitution when Gorsuch voted with the majority in ruling that states and local governments can impose sales taxes from internet retailers even when the retailers are located in different jurisdictions than the taxer.

And more recently, in the minority, Gorsuch supported cell phone location surveillance without the necessity of a warrant.

Not good.

And now Trump wants to add Brett Kavanaugh to the Supreme Court.

Kavanaugh would probably be worse than Gorsuch and he is much more of a political insider, a Bush family connected insider.

Get a load of his thought process on Obamacare via Vox:
Of particular note is his dissent in the case of Seven-Sky v. Holder, a constitutional challenge to the Affordable Care Act decided by the DC Circuit in 2011. By a 2-1 margin, the DC Circuit upheld the law as legitimate under the Commerce Clause (which empowers Congress to regulate interstate commerce), but Kavanaugh dissented, not because he thought the law was unconstitutional but because he thought the court lacked jurisdiction to consider the question, under 1867’s Anti-Injunction Act. That law bars people from challenging taxes until after they’ve paid them, and because Kavanaugh viewed the individual mandate as a tax, he thought it could not be challenged until the first mandate penalties were levied in the spring of 2015.

This, naturally, infuriates conservatives considering his nomination today, because the argument that the mandate is a tax ultimately enabled John Roberts to rule it constitutional and save most of the law in 2012. Roberts denied that the Anti-Injunction Act applied, but accepted the tax argument for considering the mandate’s constitutionality.

“In Kavanaugh’s view, the mandate could fit ‘comfortably’ within Congress’ constitutional powers,” Christopher Jacobs, a prominent critic of Obamacare, writes in The Federalist. “Even as he ‘do[es] not take a position here on whether the statute as currently written is justifiable,’ Kavanaugh concludes that ‘the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight.’”

Worse still from Jacobs’s perspective, Kavanaugh even suggested language tweaks Congress could adopt that he thought would shore up the law’s constitutionality. “Conservatives might argue amongst themselves about which is worse: An unelected judge opining on how a mandate to purchase a product could meet constitutional muster, or that same unelected judge giving Congress instructions on how to ensure it will,” Jacobs concludes.
Then there is this via Vox:
 Kavanaugh interpreted the Supreme Court’s Hobby Lobby ruling as saying that the government has “a compelling interest in facilitating women’s access to contraception.”

And he is worse than Gorsuch on national surveillance:
Kavanaugh has also ruled in favor of the National Security Agency’s expansive call record surveillance operation, arguing that collecting these records did not constitute a “search,” and that even if it did, the government can take such records if it has a “special need” to prevent terrorism, even if this burdens the constitutional rights of those searched. That’s a truly expansive rationale that makes even many conservatives uneasy. He also worked to limit challenges to detention for terror suspects...
Kavanaugh is not an enemy of big government. He is part of big government and just has his particular horrific spin on it.





 I am told that Kavanaugh is the evil Machiavellian Karl Rove's man.

 Kavanaugh and Rove in 2014.


  1. Yes, the ultimate quality in an American judge: Interpreting EVERYTHING with an eye toward hewing to a principle of expanding liberty...the plain-meaning of a statute be damned! To do otherwise---i.e. the mentality of "just following orders, mein Commandant! Jawohl, I will shoot that escaping Jew in the back!"---is being a collaborator and facilitator for the State.
    Speaking of "interpreting the Constitution as written," the SCOTUS isn't even supposed to have the power of Judicial Review if one performs a literal reading and plain-wording interpretation of the U.S. Constitution; They (Marshall) manufactured, fabricated, conjured and seized that power of their own accord, in the seminal case Marbury vs. Madison.


  2. He's the only one of the 4 finalists who has written the following. Former Republican Senator Rick Santorum said this pick won't energize his base:

    “I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.” Furthermore, Kavanaugh opined that the “indictment and trial of a sitting President” would “cripple the federal government.”