Senate Minority Leader Democrat Chuck Schumer expressed concern Sunday that Supreme Court nominee Brett Kavanaugh is overly deferential to presidential power, and would be unlikely to challenge President Trump.
Schumer, D-N.Y., put out a statement reacting to comments Kavanaugh made several years ago, reported this weekend by the Associated Press, where the judge suggested the unanimous 1974 Supreme Court ruling that forced President Richard Nixon to turn over the Watergate tapes may have been wrongly decided.
“According to his own words, Brett Kavanaugh even believes the 8-0 decision that held Richard Nixon accountable was wrongly decided,” Schumer said. “It bodes very poorly for any decision that Kavanaugh might make to hold President Trump accountable.”
Democrats have attacked Kavanaugh’s views on executive authority, arguing his past decisions show he would be hesitant to comply if special counsel Robert Mueller seeks to force Trump to testify in the investigation into Russian interference in the 2016 election.
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In the latest example of that trend, the AP reported the details of Kavanaugh’s participation in a roundtable discussion with other lawyers when he said the Supreme Court decision in U.S. v. Nixon, which limited a president’s authority to withhold information for a criminal prosecution, may have been wrongly decided.
Kavanaugh provided a copy of a 1999 magazine article about the roundtable meeting to the Senate Judiciary Committee, as part of thousands of pages of documents he gave to the panel during the confirmation process.
“But maybe Nixon was wrongly decided — heresy though it is to say so,” Kavanaugh said in a transcript of the discussion that was published in the Washington Lawyer magazine. “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently … Maybe the tension of the time led to an erroneous decision.”
Kavanaugh added the court perhaps should not have gotten involved with the dispute over the Watergate tapes.
“Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.
Schumer on Sunday accused Kavanaugh of having a double standard by being willing to discuss his views of the 1974 Nixon tapes decision, but also vowing to follow the the recent tradition of Supreme Court nominees who refuse during the confirmation process to say whether they would seek to revisit past decisions.
“It is also very confounding that the common thread that has emerged thus far in the cases that Kavanaugh is willing to openly criticize is their relation to presidential power and accountability,” Schumer said. “But because he has demonstrated a willingness to express his views on existing Supreme Court precedents, he must be able to answer direct questions on stare decisis on many other matters, including Roe and healthcare.”
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