Tuesday, July 31, 2018

Libertarian makes SCOTUS case for Kavanaugh

Here’s The Libertarian Case For Brett Kavanaugh’s Nomination | The Federalist - Ilya Shapiro:

July 29, 2018 - "While Brett Kavanaugh’s nomination to the Supreme Court has been warmly received on the Right, libertarians haven’t been uniformly thrilled. The night of the announcement, Rep. Justin Amash (R-MI) tweeted that it was a '[d]isappointing pick, particularly with respect to his #4thAmendment record,' also mentioning 'government surveillance' as an area where Americans can’t afford a 'rubber stamp.'

"A few days later, my Cato Institute colleague Matthew Feeney did a critical dive into Klayman v. Obama, where the U.S. Court of Appeals for the DC Circuit rejected ... a 2015 challenge to the National Security Agency’s telephony-metadata collection. Kavanaugh wrote separately to say the program passed constitutional muster.... But should this be that big a worry?... this ... has likely been superseded by Carpenter v. United States, where the Supreme Court this past term ruled that police need a warrant to access cellphone location data....

"Kavanaugh has both rejected executive supremacy in favor of judicial review and praised Justice Antonin Scalia’s dissent in Hamdi v. Rumsfeld (2004), which argued that the military can’t detain U.S. citizens absent a congressional suspension of habeas corpus.

"Kavanaugh [has also] lauded Scalia’s role as the court’s 'most tireless advocate for the right to trial by jury [under the Sixth Amendment].' Accordingly, in United States v. Moore (2011), Kavanaugh found that a criminal defendant’s Confrontation Clause rights had been violated when the government introduced Drug Enforcement Agency reports at trial without allowing the defendant to confront the report’s author....

"Kavanaugh has also been a leading advocate of interpreting statutes to incorporate robust mens rea requirements, protecting individuals from criminal sanction unless the government establishes a 'guilty mind'.... [I]n United States v. Burwell (2012) ... he argued that a defendant could not face a mandatory 30-year sentence for carrying a machine gun during a crime because the government had not proven that he knew the weapon to be a machine gun.... [In]  United States v. Williams (2016) ... he commended a majority opinion that reversed the conviction of a gang member involved in a hazing ritual 'to underscore the critical importance of accurate instructions to the jury on mens rea requirements'....

"Kavanaugh dissented from a decision upholding the Securities and Exchange Commission’s broad theory of liability in enforcing fraud laws against a broker who transmitted a fraudulent statement dictated by his boss. Last month, the Supreme Court agreed to review the case (although of course Kavanaugh will be recused from it if he is confirmed).

"All this goes without mentioning other issues ... from the Second Amendment — he would’ve struck down DC’s gun-registration requirement and ban on semi-automatic rifles, using an historical rather than a 'tiers of scrutiny' approach — to a skepticism of broad judicial deference (Chevron, Auer, etc.) to executive agencies. As he repeated at his nomination ceremony, 'the Constitution’s separation of powers protects individual liberty.'"

Read more: https://thefederalist.com/2018/07/29/heres-libertarian-case-brett-kavanaughs-supreme-court-nomination/
'via Blog this'

See also: Brett Kavanaugh and due process

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