Thread by @steve_vladeck

The claim that conservative judges, unlike progressives, “follow the law” and simply “call balls and strikes” is a preposterous, tired canard.

Among the many counterexamples, this #thread focuses on one (involving Judge Kavanaugh)—tort suits against private military contractors:

1. As the military has come to rely on private military contractors (PMCs) for increasing logistical and other support overseas, the contractors have, not surprisingly, been subject to increasing litigation for alleged (and, in many cases, proven) misconduct by their employees...

2. Some of these claims are from servicemembers—for example, those who claim they were seriously injured as a result of PMCs repeatedly burning hazardous materials in open-air "burn pits" in Iraq and Afghanistan:

nytimes.com/2018/05/17/mag…

3. Others are from non-citizen detainees, such as those tortured at Abu Ghraib:

ccrjustice.org/home/what-we-d…

In both contexts, the key is that there is no federal statute that governs the disputes, because contractors are expressly exempted from the Federal Tort Claims Act (FTCA).

4. Instead, these cases raise the question of whether state tort law, which all agree would otherwise govern such claims by private plaintiffs against PMCs, should similarly govern when the claims arise in overseas combat zones...

5. With a few exceptions, the federal courts have generally said "no," relying on two arguments.

First, some courts have held that these disputes raise non-justiciable "political questions," because they implicate sensitive judgments by the military:

ca4.uscourts.gov/opinions/17196…

6. Second, others have argued for a purely judge-made, "federal common law" defense, indirectly _derived_ from the FTCA, for "battlefield tort" claims.

Here's conservative Fourth Circuit Judge Harvie Wilkinson arguing in favor of such a defense:

lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-p…

7. Here's the D.C. Circuit's 2009 Saleh decision, in which Judge Kavanaugh joined, without comment, a majority opinion squarely holding that federal judges should displace state tort law in such cases (over a rare but blistering dissent by Judge Garland):

cadc.uscourts.gov/internet/opini…

8. To be clear, these rulings are not "applying the law as written" or "calling balls and strikes." Rather, they're relying upon powerful but amorphous policy concerns to justify judicial displacement, with no express statutory or constitutional support, of state-law tort claims.

9. Many may _agree_ with these policy concerns, and with the general view that it's more than a little awkward to apply state tort law to these kinds of foreign claims. That's as it should be.

But let's drop the fiction that this is "judicial restraint":

lawfareblog.com/judge-wilkinso…

10. Instead, these cases show that there are contexts in which conservative judges, including Kavanaugh, are just as (if not more) likely to rely upon amorphous policy concerns to govern disputes even if the only settled law (state tort rules) militates in the opposite direction.

11. That's not a critique of these rulings; it's a critique of hypocrisy, and of the tired claim that only "liberal" judges allow such atextual considerations to enter into their legal reasoning.

The reality is that _everyone_ does it; it's only the _contexts_ that vary.

/end