Introduction
Brett Kavanaugh appears in these excerpts as a nominee or newly seated Supreme Court justice whose jurisprudence is treated as unsettled. Bob Zadek, opening a discussion of the Endangered Species Act with Tony Francois of the Pacific Legal Foundation, describes Kavanaugh as “newly appointed, if he is confirmed” and proposes to examine “what kind of environmental creds” he has Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018). The framing is prospective: Kavanaugh is a question to be answered, not a record to be read.
Judicial appointments and originalism
In a conversation with John McGinnis, a professor of law at Northwestern University School of Law, Kavanaugh is discussed as one of the appointments that give McGinnis hope for classical liberalism. McGinnis credits Trump with committing himself to appointing judges who will read the Constitution as written, and says of Kavanaugh that “We don’t know yet about Kavanaugh, but I think there’s reason to believe he will at least be quite good in this respect” Here Comes the Storm (2019). McGinnis places Kavanaugh alongside Gorsuch, whom he calls “great,” and describes Trump’s appointments to the Supreme Court, appellate courts and district courts as the best of any president, “even better than those of Ronald Reagan.” The assessment of Kavanaugh is explicitly provisional — a prediction rather than a judgment.
Partisan gerrymandering
The most detailed treatment of Kavanaugh comes from David Kaplan, discussing the Supreme Court’s partisan gerrymandering cases. Kaplan describes the Court as having long held that as long as district lines are not drawn on racial grounds, a legislature may draw them largely as it wishes, and argues that this is precisely the kind of case where the Court ought to intervene, because “you can’t expect democracy to regulate itself” Demystifying the Supreme Court (2019). He notes that the Court declined these cases a year earlier, that Justice Kennedy “phoned it in,” and that with a new justice seated, “Brett Kavanaugh will be the deciding vote.” Kaplan says the oral argument does not reveal which way Kavanaugh will come out, and that if the Court does regulate partisan gerrymandering it would be “arguably the most important decision from the Court in a generation.” His own prediction is that the Court will duck the issue again.
Kaplan returns to Kavanaugh in a second segment on the loss of neutral principles, noting that the gerrymandering cases were argued in late March and that Kavanaugh is “the only vote we really don’t know how it’s going to come out because the other eight a year ago expressed their views on this” Demystifying the Supreme Court (2019). He allows that if Kavanaugh voted with the liberals, Kavanaugh “could be a hero to many critics,” but says he does not think that will happen. Kaplan’s expectation is that Kavanaugh “is going to turn out about the way that the president who appointed him and the senators who voted for him want and expect.” The remark is offered under the heading that “you never know exactly what justice you’re going to get.”
Across episodes
Two episodes touch on Kavanaugh. In the earlier treatment, from July 2018, Bob Zadek raises Kavanaugh’s environmental record as a subject to be explored with Tony Francois, conditional on confirmation Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018). In the later treatments, from February and April 2019, John McGinnis and David Kaplan assess Kavanaugh as a seated justice whose votes remain unpredictable, with Kaplan identifying him as the deciding vote in the partisan gerrymandering cases Here Comes the Storm (2019) Demystifying the Supreme Court (2019). The excerpts show no development in the substance of the discussion: the question shifts from what Kavanaugh’s environmental credentials are to how he will vote, but no ruling or record is described in either episode.
What the sources do not cover
The excerpts do not describe Kavanaugh’s confirmation proceedings, his prior judicial career, any opinion he authored, or any vote he cast. They do not state his judicial philosophy in his own words, nor do they report the outcome of the partisan gerrymandering cases or any decision on the Endangered Species Act. The environmental credentials that Bob Zadek proposes to examine are never actually discussed in the excerpt provided, which ends before Tony Francois speaks.