Judge Kavanaugh’s crickets

What with all this brouhaha over Judge Kavanaugh’s high school conduct, it’s time to look at some of the more substantive issues, such as his outstanding crickets jurisprudence. This might have been entirely overlooked but for the ever-alert Lowering the Bar.

Here are a few salient excerpts from Judge Kavanaugh’s opinions:

“Nothing in [the statute] pins a jurisdictional label on this requirement; indeed the entire provision is crickets on judicial review.”

Sack v. U.S. Dept. of Defense (D.C. Cir 2016) (Kavanaugh, J.).

“Think about what the FCC is saying: Under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.” U.S. Telecom v. FCC (D.C. Cir. 2017) (Kavanaugh, J., dissenting). 

“Even if a reasonable police officer could have doubted the credibility of the trespassers who claimed to be invitees, those credibility doubts do not count as “conflicting information.” What case had ever articulated such a counterintuitive rule? Crickets.” Wesby v. D.C. (D.C. Cir. 2016) (Kavanaugh, J., dissenting).

In case you’re not up on the latest judicial slang, “crickets” means silence where an answer is called for, as in, “After hearing nothing but crickets from the FDA, plaintiffs filed suit alleging unreasonable delay.”

Or, as a Texas judge warned about “a federal take-over,” where “this Court will stand by watching as it happens, doing nothing and saying nothing. All that will be heard is the sound of crickets.” Ex Parte McCarthy (Tex. Crim. App. 2013).

Might be a relief to hear nothing but crickets for a change.