Supreme Court nominee Brett Kavanaugh asserted Wednesday he has never taken a position on the indictment or investigation of a sitting president and vowed to keep an “open mind” if such a question came before the court.
“If I had a constitutional case come before me as a judge on the D.C. Circuit, or if confirmed on that court, I’ll have an open mind. I’ll listen to the arguments. … I’ll see all sides of this. I will have a completely open mind on the constitutional issue,” he said.
Kavanaugh sparred with Sen. Chris Coons, D-Del., during the second day of his confirmation hearing, during which he was questioned about his views on the now-defunct independent counsel statute and his views on investigations involving a sitting president.
“I do think that there is good reason for members of this committee and myself principally to be concerned about a whole range of things that you’ve said and you’ve written and that you decided as a judge about whether or not a president can be held accountable,” Coons said.
[Brett Kavanaugh: ‘I am a pro-law judge’]
The Delaware senator specifically questioned comments Kavanaugh has made about the 1988 case Morrison v. Olson, in which the Supreme Court upheld the statute governing the selection of an independent counsel.
That statute expired in 1999, and a system is currently in place governing special counsels.
Kavanaugh said the independent counsel was a “distinct regime” that Congress opted not to reauthorize.
He said he felt comfortable speaking about the 1988 decision because it was a “one-off case about a one-off statute” that is no longer on the books.
He declined to say whether he would vote to overturn Morrison v. Olson, saying instead Coons was posing a hypothetical situation and he would therefore not weigh in.
Kavanaugh’s views on executive power have emerged as a focal point of his confirmation hearing, during which he has also faced questions on his position on Roe v. Wade and the Affordable Care Act.
The hearing has also been interrupted throughout the day by intermittent protesters opposing Kavanaugh’s nomination.
