Will the nomination to replace Anthony Kennedy come sooner than expected? According to CBS News, Donald Trump has narrowed down his short list to two finalists. It’s between a longtime conservative favorite and … a more recent conservative favorite:
CBS News has learned that D.C. Circuit Court Judge Brett Kavanaugh and Chicago Circuit Court Judge Amy Coney Barrett are currently Mr. Trump’s leading contenders for the appointment to the nation’s highest court.
Kavanaugh and Barrett both appear on Mr. Trump’s list of 25 possible nominees and he’s said he plans to interview about half a dozen potential candidates before announcing his selection. …
Over the weekend, Mr. Trump was in Bedminster, New Jersey. Although the president hinted last week that he might meet with potential nominees there, CBS News has confirmed that no candidates were present on the weekend trip.
How seriously can we take this? There isn’t any reporting other than CBS to back up the idea that Trump has already narrowed his consideration to Brett Kavanaugh and Amy Coney Barrett. Furthermore as Blair Guild notes in the follow-up, Nancy Cordes also reports that none of the contenders met with Trump over the weekend, so the interviews haven’t even yet begun. It seems unlikely that Trump would have narrowed down his list without conducting any interviews at all on a nomination that will be key to his presidential legacy. On the other hand, Ramesh Ponnuru apparently hears the same thing.
Perhaps Kavanaugh and Barrett are the “top contenders” going into the narrowing process because they’re archetypes of the two strategies Trump has open to him. Kavanaugh has extensive experience in the DC Circuit Court of Appeals, is well known to conservative activists, and will be reliably conservative at the Supreme Court. That’s the recipe for the low-key strategy, or at least as low-key as this can get. Barrett exemplifies the in-your-face strategy — small amount of experience, solid conservative track record, and the ability to make this into a high-tension fight with Democrats, as her confirmation last year to the appellate court amply demonstrated. Trump’s long list has potential nominees that fit into either or both slots, but none personify the two tracks as well as these do.
One dark horse could be Raymond Kethledge in the Kavanaugh track. Despite his recent reversal in Carpenter (or perhaps in addition to it), conservatives have started to take note of his originalist bent and the potential sharp departure from Kennedy that it might take on the Supreme Court. Ed Whelan points out Kethledge’s textual approach to the separation of powers, but his hostility to Chevron might put him on the Barrett track with Senate Democrats:
Judge Kethledge’s views on Chevron originate with the text of the Constitution. As he has explained, “Article III of the Constitution vests in Article III courts ‘[t]he judicial Power of the United States’—which means not some of it, but all of it.” Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). The Framers agreed: “Hamilton said in Federalist No. 78 that ‘[t]he interpretation of the laws is the proper and peculiar province of the courts,’” and “Chief Justice Marshall said almost verbatim the same thing in Marbury v. Madison, with all but an exclamation point at the end.” Id. Under Chevron, however, the interpretation of an ambiguous statute “becomes the province of an executive agency.” Id. “One may fairly ask, therefore, whether the doctrine allocates core judicial power to the executive—or perhaps simply blocks the exercise of judicial power in cases where the doctrine applies.” Ambiguities and Agency Cases at 323. …
Some have tried to sidestep the conflict between Chevron and Article III by arguing that agencies are not really “interpreting” ambiguous statutes; they are making policy judgments that have the force of law. To be sure, this way of thinking has one advantage—it better describes how agencies often go about their business. As Judge Kethledge has recognized, agencies that ask for deference often are “not trying to answer the same question that [courts] are.” Ambiguities and Agency Cases at 323. When courts interpret statutes, they look (or should look) for the “best objective interpretation” of the text: in other words, “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” Ambiguities and Agency Cases at 316, 323. When agencies “interpret” statutes, however, they are often looking for a “colorable interpretation that will support the policy result that [they] want to reach.” Id. at 323.
Although this approach better describes reality, it simply trades one separation-of-powers problem for another. When judges read their policy preferences into a statute, Judge Kethledge explains, “we call it judicial activism”—something that “most observers condemn … as an arrogation of legislative power to the judiciary.” Id. And it is unclear “why the result is any better when the arrogation is done by the executive.” Id. at 323–24. This way of understanding Chevron may “escape the jaws of Article III’s Vesting Clause,” therefore, but “it runs headlong into the teeth of Article I’s.” Michigan, 135 S. Ct. at 2713 (Thomas, J., concurring); see alsoGutierrez-Brizuela, 834 F.3d at 1152–55 (Gorsuch, J., concurring).
As a judge on the court of appeals, Judge Kethledge remains bound by Chevron. But Chevron is not an inflexible doctrine, and it can properly be applied in ways that minimize its harm to the separation of powers. Judge Kethledge has done so in two ways: first, he works hard to find the objective meaning of the statutory text before declaring it ambiguous, and second, he refuses to defer to agencies that fail to justify their interpretations.
Be sure to read both all the way through. Kethledge ended up on Trump’s list for a reason, and the new reading of Chevron might make for a nuanced redirection of the court to oppose regulatory overreach and demand more clarity from Congress. However, it seems a lot more likely that Trump would choose bombast over nuance and try to stick a finger in Chuck Schumer’s eye by nominating Barrett.