Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions

Notre Dame Law Review Volume 92 | Issue 5 Article 1 7-2017 Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions Brett M. Kavanaugh United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Judges Commons Recommended Citation 92 Notre Dame L. Rev. 1907 (2017) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\92-5\NDL501.txt unknown Seq: 1 5-JUL-17 15:27 FEDERAL COURTS, PRACTICE & PROCEDURE SYMPOSIUM: JUSTICE SCALIA AND THE FEDERAL COURTS KEYNOTE ADDRESS: TWO CHALLENGES FOR THE JUDGE AS UMPIRE: STATUTORY AMBIGUITY AND CONSTITUTIONAL EXCEPTIONS Brett M. Kavanaugh* I am honored to be back at Notre Dame Law School. This is one of the very best law schools in the United States. I love coming here. I thank the Law Review for hosting this symposium in honor of Justice Scalia. I am grateful to Professor Barrett for the generous introduction and for her outstanding scholarship and teaching at this law school. She is an inspiration to her students and an inspiration to me. I thank my many friends on the faculty for being here. I want to single out my longtime friend and colleague Bill Kelley. We have worked together on many challenging assignments in the past. He is a special person and a great teacher, scholar, and lawyer. I am proud to be his friend. I am Catholic. This university holds a special place in the hearts and minds of most American Catholics, and it represents the best of the Catholic educational tradition. That tradition is one that emphasizes service—caring for the poor, the neglected, the vulnerable. It lives out the Gospel of Matthew and teaches that your most important duty is to take care of the least of your brothers and sisters. At the same time, this university’s tradition is one of inclusiveness, of welcoming people of all faiths and beliefs. And the tradition is one of teaching and learning, always probing and studying and thinking about how to make our country and our world a better place. © 2017 Brett M. Kavanaugh. Individuals and nonprofit institutions may reproduce and distribute copies of this Address in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit. This is based on remarks delivered at Notre Dame Law School on February 3, 2017. 1907 \\jciprod01\productn\N\NDL\92-5\NDL501.txt 1908 unknown Seq: 2 notre dame law review 5-JUL-17 15:27 [vol. 92:5 When I received the invitation to be here, I will admit that I glanced at the schedules for both the women’s and men’s basketball teams and hoped I might be able to catch a game. Alas, no home games this week. I recall that my very first trip to Notre Dame was almost exactly thirty years ago to the day to watch Notre Dame play against then-number-one North Carolina in men’s basketball. I was here with a bunch of my Georgetown Prep high school friends who went to Notre Dame. Notre Dame upset North Carolina, and it was a raucous scene and a wild weekend. Fortunately, there was no social media back then. Just a couple of nights ago, Neil Gorsuch was nominated to the Supreme Court. Neil and I actually went to high school together at Georgetown Prep. I was two years ahead of him. And then we clerked together the same year for Justice Kennedy and got to know each other very well. We worked together in the Bush Administration, and we both became judges in 2006. We serve together now on the Appellate Rules Committee of the Judicial Conference, and were coauthors along with Bryan Garner and several other judges of a book on precedent.1 Don’t try to read that book all at once is my only piece of advice. So I know Neil Gorsuch well and have known him seemingly forever. He is a good friend. He is kind, funny, hard working, and brilliant. He’s a great writer and independent. With his smarts, his character, and his understanding of life and law, I firmly believe he will be one of the great Justices in Supreme Court history, like a Jackson or a Scalia. Watching him the other night, I felt immensely and overwhelmingly proud of him. And proud of Georgetown Prep, I might add. Neil was of course nominated to replace Justice Scalia, for whom we are gathered here. I do not want to overstate my relationship with Justice Scalia. But I loved the guy. For starters, he was always so funny when I saw him at dinners or legal events or anywhere. He had a magnificent wit and put everyone at ease. But beyond that, Justice Scalia was and remains a judicial hero and role model to many throughout America. He thought carefully about his principles, he articulated those principles, and he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left. He was fiercely independent. For many decades, moreover, he tirelessly and at substantial financial sacrifice devoted himself to public service, teaching, and lecturing. We all benefited from that. If you asked him to do something, he said yes if there was any way he could possibly do it. He was anywhere and everywhere, from the Red Mass, to far-flung legal conferences around the world, to classes at law schools, to the annual Friendly Sons dinner on St. Patrick’s Day (and you might be aware, he was not Irish). He wanted to give back. He was a great example for public servants and teachers. He loved his wife and family. He was a man of faith. And he really was a man for others. He inspired me to try to do more and to do better in all 1 BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT (2016). \\jciprod01\productn\N\NDL\92-5\NDL501.txt 2017] unknown Seq: 3 two challenges for the judge as umpire 5-JUL-17 15:27 1909 facets of my life, and I hope he inspires all of us to do the same. I miss him personally and professionally. What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. The Constitution is a document of majestic specificity defining governmental structure, individual rights, and the role of a judge. Remember that the structural provisions of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. Justice Scalia’s memorable d (...truncated)