So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).
The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.
And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.
Kavanaugh was a high-ranking aide to President George W. Bush before becoming a judge on the influential D. C. Circuit in 2006, and in his lecture before some 250 people in Eckstein Hall’s Appellate Courtroom, he drew on his experience in the White House as well as on the bench.
The five areas Kavanaugh discussed were war powers, Senate confirmation of judges, presidential decisions related to enforcing a statute passed by Congress, statutory interpretation and discretion, and the powers of agencies that operate generally independently of the president or Congress.
“The system works best when the rules of the road are set ahead of time,” Kavanaugh said. There is always an element of human judgment in a decision, and decisions often need to be made under the pressure of the moment. But a good practice, he said, is to be prepared as best as possible to make such decisions.
In discussing war powers, Kavanaugh said that presidents have generally sought congressional approval before undertaking large-scale military actions such as the war against Iraq. And questions about whether or when a president can commit troops without congressional approval loom large in our system, he said. Overall, the framework of presidential and congressional roles in such decisions has withstood the test of time, including in the post 9-11 era, he said.
Kavanaugh said that Senate confirmation of judges has been a controversial subject for many years, and minority parties in the Senate on both sides have tried to halt confirmation of presidential appointees at different times. The rule change pushed through by Senate Democrats in recent years that cleared the way for simple majorities to move forward most judicial appointments does not apply to Supreme Court nominees, he noted. He said there is trouble looming for future Supreme Court nominations if a set of rules regarding such nominations is not agreed upon in advance.
Kavanaugh spoke of lessons he learned during his White House service, which included September 11, 2001, the day of the terror attacks on the World Trade Center in New York and the Pentagon in Washington. He said he was in the White House when the Secret Service urgently told everyone to flee—literally to run for their lives—because a fourth plane, now known as Flight 93, was believed to be headed for the White House. Passengers on the plane foiled the hijackers and the plane crashed in southwestern Pennsylvania. Every day after the attacks was “September 12” for Bush, Kavanauagh said, and the core mission of the Bush presidency was that “this will not happen again.” Kavanaugh said, “The job of the president is extraordinarily difficult. Every decision seems to be between really bad and worse.”
But, he said, partisan disputes and debates over such matters as separation of powers need to be approached with an understanding of a broader reality. “What unites us as a country is so much more than what divides us,” Kavanaugh said.
Kavanaugh not only ended the speech with the Dez Bryant example involving the Packers, but started by described how big a fan he was as a youth of the Marquette basketball teams when Al McGuire was coach. He asked the audience if anyone could name the player who scored the winning, last-second basket in the NCAA semifinals in 1977, as well as the player who made the court-length pass to set up that basket. He immediately got the right answers—a Butch Lee pass to Jerome Whitehead. (Dean Joseph D. Kearney complimented Kavanaugh for setting a new and high standard for visiting lecturers wrapping themselves in the local flags.)
Video of the lecture may be viewed by clicking here.