The courts and the administrative state.

• Author: Kavanaugh, Brett M.
• Position: 2013 Sumner Canary Lecture

CONTENTS INTRODUCTION I. BACKGROUND OF THE D.C. CIRCUIT COURT A. Location B. Appointment Process 1. Overview and Personal Experience 2. Challenges and Proposed Reform II. THE D.C. CIRCUIT'S IMPORTANT RESPONSIBILITIES A. Administrative Law Docket and Statutory Interpretation B. Separation of Powers Cases C. War Powers Cases CONCLUSION ANSWERS TO AUDIENCE QUESTIONS INTRODUCTION

I am honored to be included among the jurists and scholars who have delivered this lecture. I clerked for one of them, Judge Alex Kozinski, back in the early 1990s. When Judge Kozinski spoke here about twenty years ago, he started by asking his audience to picture the judicial system as "a large snake that feeds largely on field mice and occasional squirrel and maybe a game hen here or there." (1) Even twenty years later, Judge Kozinski is a hard act to follow.

I have been a judge for seven years, but no field mice or game hen for me. I have been on the D.C. Circuit--the United States Court of Appeals for the District of Columbia Circuit--which has a distinctive history and docket really captured by the title of this lecture and Article, The Courts and the Administrative State. I will start by telling you a little bit about the background of the D.C. Circuit, how our court works, and then I will talk briefly about three of our most important responsibilities: (1) interpreting statutes that are administered by administrative agencies; (2) enforcing the Constitution's separation of powers principle and resolving disputes between the legislative and executive branches; and (3) deciding cases during wartime.

1. BACKGROUND OF THE D.C. CIRCUIT COURT

   1. Location

      One distinctive aspect of the D.C. Circuit is our location. We are about halfway between the White House and the Capitol, which is fitting for the work we do. Even better, our front door is on Constitution Avenue. What could be better than to say, "I work on Constitution Avenue."

      And I love being in the courthouse with the district court judges and the other judges on the D.C. Circuit. Our building houses not only all the federal judges from both the court of appeals and the district court but also a judge's lunchroom where we all eat together and talk about the events of the day, sports, or what is going on at Capitol Hill. Judicial salary might come up once in a while. But developing relationships with other judges and learning about their backgrounds are some of the great aspects of being on this court, or on any court. Of course, we don't talk about pending cases. But after a reversal of the district court, the court of appeals judges tend to avoid the lunchroom for a few days. You can imagine how the conversation goes when you ask the district judge how his or her day is going, and the district judge is clearly thinking, "Did you have to say I abused my discretion? Did you have to say I didn't just 'err' but that I 'clearly erred'?" On those days, a peanut butter and jelly at the desk works just fine.

      My personal background of growing up in Washington, D.C.--which is rare (2)--makes for especially interesting interactions. It is always amusing as a judge--even now I have been on the bench for seven years--how people treat you when you are a judge on the D.C. Circuit. I think it falls into two categories: those who knew you before you were a judge and those who have only known you after you became a judge. The second group is very respectful, very deferential, usually addressing me formally as "Your Honor." But the first group, my old friends, will say "judge," but it is usually "judge?" in a tone of amusement. Someone I have known for a long time--one of my old friends, with whom I had worked a long time ago--had to argue in our court recently. I told my clerks afterward, "You know, it is really hard to do an oral argument like this guy did and do it so well. It is hard to do an oral argument when you are looking up at the bench and saying to yourself, 'I can't believe this guy is a federal judge.'"

   2. Appointment Process

      1. Overview and Personal Experience

         Another distinctive aspect of the D.C. Circuit is the fact that we are a national court in some respects. It is a function of the appointment process. Think about the appointment process for other courts of appeals; the President--the White House--has to work with the two senators for the state whose citizenry has traditionally filled a circuit judgeship. If either of the two home-state senators objects to a nominee, that's it. It is called the blue-slip process, an old tradition in the Senate, and the nominee will not go forward.

         That doesn't happen on the D.C. Circuit. There are obviously no home-state senators involved in the process in the D.C. Circuit. That frees up the President to choose judges from all over the country, a national pool with different kinds of experiences. We have on our court now a former Senate legal counsel; a former justice of the California Supreme Court; a former judge on D.C.'s highest court; former district court judges from North Carolina and South Carolina; former law professors from Michigan, Colorado, Harvard; several former high-level Justice Department officials; and a former Deputy Solicitor General. A range of geographic backgrounds, intellectual backgrounds, and professional experiences are represented, and I think this is distinctive of the D.C. Circuit.

         For my part, I came from the White House most immediately before my appointment and before that, private practice in Washington. I worked at the White House for five and a half years before becoming a judge. Now, it is fair to say that certain senators were not entirely sold that working at the White House is the best launching pad for a position in the Article III branch. One senator at my hearing didn't like the idea that I had been working in the White House and would be coming to work in the judiciary, and he said in the hearing "[this] is not just a drop of salt in the partisan wounds, it is the whole shaker." But this is where you need your mother at the confirmation hearing, because my mom afterward said to me "I think he really respects you," as only a mom can.

         But White House service, it turns out, is very useful for a job on the D.C. Circuit. It gives you great respect, first of all, for the presidency, the demands of the executive branch, and the burdens of the presidency. But at the same time, it gives you perspectives that might be unexpected to some. Such experience helps refine your ability to determine whether the executive branch might be exaggerating or overstating how things actually work and the problems that would supposedly arise under certain legal interpretations. White House experience also helps--and history shows that executive branch experience helps--when judges need to show some fortitude and backbone in those cases where the independent judiciary has to stand up to the mystique of the presidency and the executive branch. Fortitude and backbone are important characteristics, I think, for our court and courts generally in our separation of powers structure. Of course, we all think of Justice Robert Jackson in the Youngstown case, a role model for all executive branch lawyers turned judges.

      2. Challenges and Proposed Reform

         Our court has a distinctive composition because of the way the selection process works and a distinctive nominations process because we do not have home state senators involved in the process. But we still have a confirmation process for our court, and, although no home-state senators are involved, nominations to the D.C. Circuit have been contentious for the last twenty years or so. There are several extraordinary people who were nominated to the D.C. Circuit but never confirmed. Even for those who have been confirmed, the process has been beset by years of delays.

         I saw this firsthand when I worked in the Bush White House. Nominees were held up for years without hearings or votes, and the same thing happened during the Clinton Administration and, to some extent, during the Obama Administration. The best examples to show this are the D.C. Circuit nominations of now--Chief Justice John Roberts and now-Justice Elena Kagan. Chief Justice Roberts was first nominated to the D.C. Circuit in 1992, renominated in 2001, and did not get through for another two years until he was finally confirmed in 2003. Justice Kagan was nominated to the D.C. Circuit in 1999. But she never got through. It turns out for both of them it was much easier to get confirmed to the Supreme Court than to the D.C. Circuit, which shows that something is wrong, I think, with the confirmation process.

         I think something is wrong in not just the confirmation process for our court but for lower courts more generally. A nominee's confirmation may not happen for up to three years. This leaves seats vacant too long, overburdens judges on certain courts, and is unfair to the individual nominees. Moreover, the delays have systemic effects and deter talented people from wanting to become judges. We want to design a system, I think, that encourages good people to want to be judges. During the Clinton and George W. Bush Administrations, then-Chief Justice William Rehnquist discussed the delays (3) and their effect of discouraging private practice attorneys in particular from wanting to be federal judges.

         There is a better way to do this, I think. As Presidents Clinton and Bush have suggested, the executive branch and the Senate should work together on ground rules that would apply regardless of the President's party or who controls the Senate. Thus, no matter whether the President is Democratic or Republican, no matter whether the Senate is controlled by Democrats or by Republicans, you have the same ground rules for how nominations will be considered. There are four permutations, and the rules should be the same for any of the four.

         My personal view is that the Senate should require a vote on all judicial nominees within six...