As Democratic senators continue to push for the release of more than a million pages related to Supreme Court nominee Brett Kavanaugh, the judge’s views on executive power have taken center stage in an already fiery confirmation battle.
Kavanaugh’s views on executive power have emerged as a flashpoint in the battle over his nomination, with Senate Democrats and the judge’s opponents questioning whether Kavanaugh would rule in cases before the Supreme Court in a manner that protects the president who appointed him to the bench.
The concerns over his views on executive power are amplified by the investigation led by special counsel Robert Mueller, who for the past year has been examining Russian meddling in the 2016 election and whether Trump obstructed justice.
“Question of the day: If Kavanaugh would have let Nixon off the hook, what is he willing to do for President Trump?” Senate Minority Leader Chuck Schumer, D-N.Y., asked Monday.
The new battlefront regarding Kavanaugh’s views of executive power reached a climax this weekend, when comments about U.S. v. Nixon during a roundtable discussion were revealed in a batch of documents he submitted to the Senate Judiciary Committee.
The Supreme Court’s landmark 1974 decision in Nixon compelled President Richard Nixon to turn over tapes and documents related to Watergate.
“But maybe Nixon was wrongly decided — heresy though it is to say so,” Kavanaugh said during the discussion. “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.”
The transcript of the event, included in documents provided to the committee, was published in the January-February 1999 issue of Washington Lawyer.
Kavanaugh’s allies have pointed to other writings and comments Kavanaugh has made about Nixon as evidence he doesn’t want to overturn the Supreme Court’s ruling in the case.
“Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law,” Kavanaugh wrote in a Catholic University Law Review article in 2016. “That takes backbone, or what some call judicial engagement.”
In a footnote in a 1998 law review article, Kavanaugh wrote of Nixon: “[T]here is no reason to revisit that decision.”
Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School, said it is difficult to tell exactly what Kavanaugh thinks about the 1974 ruling, as his 1999 comments conflict with his other writings.
“Here, it’s just hard for me to tell what Kavanaugh really thinks,” he told the Washington Examiner. “There are several ways you can try to reconcile these statements. One possibility is in 1999, he thought Nixon was wrongly decided but changed his mind. Another possibility is in 1999, he really didn’t believe Nixon was wrongly decided and was raising questions about it for the sake of argument. It’s also possible he still thinks it’s wrongly decided but could still be a great moment in judicial history.”
Senate Democrats have also raised red flags about a 2009 Minnesota Law Review article authored by Kavanaugh, in which he reflected on the impact independent counsels and criminal investigations have on a sitting president. Kavanaugh wrote that Congress should enact statutes allowing for the deferment of civil suits, criminal investigations, and prosecutions of a sitting president.
Seizing on Kavanaugh’s writings, Demand Justice, a liberal judicial advocacy group, released an ad claiming Kavanaugh would shield Trump once on the bench.
“Imagine you were President Trump, and you wanted to be sure someone had your back in a constitutional crisis. You’d start by nominating someone like Brett Kavanaugh to the Supreme Court,” the ad states. “He believes the president should be above the law. He thinks the president should have absolute discretion whether and when he can be independently investigated. Now why might Donald Trump want a judge like that on the Supreme Court?”
Somin said some aspects of the debate over Kavanaugh’s record on executive power raise legitimate concerns, such as his deference to the executive on national security issues and his views on the “unitary executive” theory, under which the president has all executive power.
“The executive branch wields power over all kinds of issues that go far beyond anything the federal government was originally supposed to have,” Somin said. “That raises two problems: It’s questionable to say the president should have unitary power, and secondly, from a pragmatic point of view, it’s dangerous to concentrate that much power in the hands of one person.”
But while he believes Kavanaugh’s views on executive power are “a legitimate issue to raise,” Somin contended their impact on his confirmation rests with a small contingent of senators.
“Could it lead to the nomination being defeated? That I’m not so sure,” he said. “It really comes down to, is this the sort of thing that a small handful of swing votes in the Senate will care about? Does Susan Collins care about this? Does Lisa Murkowski care about this? Does Rand Paul? I don’t know.”
