Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Brief

Publication Date

9-7-2018

Publisher

Committee on the Judiciary

Language

en-US

Abstract

I am honored to speak to the committee about these matters as you consider Judge Kavanaugh’s nomination to the Supreme Court. Judge Kavanaugh has had an exceptional career, and has many obvious strengths. Nevertheless, I believe there are concerns his jurisprudence raises that should be addressed before final consideration of his nomination. My testimony will focus on two: First, I will discuss Judge Kavanaugh’s reluctance to impose checks on the President in the national security realm, and the harms in undue deference for national security decision-making and government accountability. Second, I will address Judge Kavanaugh’s unusually dismissive views on the role of international law in the U.S. domestic system, and in particular, international law’s role in construing the limits Congress sets on the President’s authority. Taken together, should they be adopted by the Supreme Court, these approaches could result in a President wielding essentially unfettered power at the mere invocation of war or national security. Both put him at odds with the judicial philosophy of Justice Kennedy, whom Judge Kavanaugh has been nominated to replace. The difference in their judicial approaches is stark and significant, both to the separation of powers and to the United States’ reputation on the world stage. Should he be confirmed, Judge Kavanaugh may be in a position for decades to restrict the ability of courts and Congress to check the President, and to shape how the United States engages with and defines international law

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