When John Malcolm arrived at the White House on July 9 for the announcement of the president’s U.S. Supreme Court nominee, he was in dark about the pick like most everyone else.
The Heritage Foundation, where Malcolm is a senior legal fellow and director of the Meese Center for Legal & Judicial Studies, helped populate the short lists to fill the earlier court vacancy left by Justice Antonin Scalia’s death. But Malcolm said it wasn’t until he saw who else was waiting in line outside the White House that he figured it was Judge Brett Kavanaugh.
Malcolm was front row for President Donald Trump’s announcement, alongside Scalia’s widow, Maureen Scalia, former U.S. Attorney General Ed Meese, and White House Counsel Donald McGahn. The National Law Journal spoke with Malcolm, who has long had a ringside seat for consequential legal skirmishes among conservatives, about Kavanaugh’s ascent to the nomination. The following conversation was edited for length and clarity.
The National Law Journal: In mentioning the people you first had your eye on way back when, I was looking at I think it was March 2016 when you initially put out your list—
John Malcolm: Yeah, it was about a month after Justice Scalia died. And President Trump was very kind and credited the Heritage Foundation and other groups including the Federalist Society for having some influence on his thinking on the matter.
NLJ: What do you think it was that moved him from someone you simply had your eye on to someone that folks at the White House also started to look at?
JM: I’m not sure. I think that there were some conservatives who were a little skeptical about a couple of decisions that Judge Kavanaugh wrote, probably but most prominently an opinion that he wrote, it’s called the Seven Sky case, that involved the challenge to the constitutionality of the individual mandate and Obamacare. And he wrote a decision that I thought was eminently defensible that said that, it was a dissent from his court, the D.C. Circuit’s opinion.
The majority opinion upheld the constitutionality of the individual mandate saying that it was in concert with the commerce clause. That was a theory that was rejected by the Supreme Court. Judge Kavanaugh dissented from that and said that under the anti-injunction act that the case wasn’t ripe and that the court didn’t have jurisdiction to decide the case. There were some conservatives who criticized him for not taking head-on the argument about the commerce clause’s application to the individual mandate. I thought that jurisdiction is always an important issue for a court and I thought that his decision was eminently defensible so that is not a decision that bothered me. It bothered some conservatives.
But Brett Kavanaugh has a distinguished record, he’s certainly issued some very important decisions involving executive branch power such as his case involving the Consumer Finance Protection Bureau that I’m sure appealed to the White House. He wrote some very scholarly opinions expressing doubt about Chevron deference, which is the deference that courts showed to executive branch agencies when it comes to interpreting arguably ambiguous laws. He’s given speeches on that topic including a prominent speech that he gave last year here at the Heritage Foundation. Those are topics that I know are of interest to the president and White House Counsel Don McGahn, so perhaps those decisions and his stellar record caused him to rise in the president’s esteem.
NLJ: Does he remind you of anyone that’s on the court currently? I’m wondering especially because I’ve seen criticisms from the former Virginia Attorney General Ken Cuccinelli, who’s saying he’s more like Chief Justice Roberts than Justice Gorsuch. Does that ring true or is that a wrong interpretation of reading [Kavanaugh’s opinions]?
JM: Well I have a lot of respect for Ken Cuccinelli, and I suppose only time will tell. Brett Kavanaugh is an independent, fair-minded individual, who as he said … is not going to pre-judge cases. I think actually Chief Justice Roberts has been a pretty good justice with the two major exceptions of the two Obamacare decisions, which to conservatives for understandable reasons is a little bit like saying, “Other than that, Mrs. Lincoln, how was the show?” I personally think that Brett Kavanaugh will be more like a Justice Neil Gorsuch than a Chief Justice John Roberts. I actually fervently believe that. But we’ll see over time.
NLJ: And what makes you fervently believe that?
JM: I’ve read his opinions, and I think that he is an outstanding textualist and an originalist. And I think, for instance, that if you look at the two decisions that people focus on with disappointment from a conservatives’ perspective, which are the two Obamacare decisions that Chief Justice Roberts wrote. Whatever else you have to say about those decisions, they were not textualist decisions. Chief Justice Roberts in both of those cases, acknowledged that from an originalist perspective and–in the first case …that was NFIB versus Sebelius–and from a textualism perspective, in King versus Burwell, the dissenters probably had the better argument and in my view he strained to save Obamacare. And I didn’t agree with those decisions. I don’t agree with those decisions. And I don’t think that a Brett Kavanaugh would have authored those decisions.
NLJ: A few years ago I don’t know that people would have guessed there would have been two Supreme Court vacancies to fill in the coming two years. What do you think comes in the next two years? Is there another vacancy before the end of this four-year presidential term?
JM: Look, it’s possible. I don’t know what Justice Thomas’ views are. He’s a great justice. I love Justice Thomas. I’m not looking for him to retire but he clearly does see a life beyond the beltway and enjoys getting outside of Washington. And although he’s doing outstanding work on the Supreme Court, he may decide at some point that he wishes to retire. I don’t wish ill health on anybody, but Ruth Bader Ginsburg and Stephen Breyer, as I have pointed out, have already outlived the average lifespan of men and women in this country. I wish them long lives. I sincerely doubt that they will retire, but I suppose Justice Scalia passed on so something could happen to them that would present the president with another opportunity to nominate somebody. So yeah, he might get another opportunity during his first term. And, of course, if he is re-elected I think it’s a virtual certainty that he’ll get at least one more nomination.