This piece was originally published on Just Security, an online forum for analysis of U.S. national security law and policy. As Brett Kavanaugh's Supreme Court confirmation process begins to get underway, some commentators have sought to minimize the significance of the sweep of Kavanaugh's writings on the subject of presidential immunities. That these commentators--Noah Feldman, Asha Rangappa, and Benjamin Wittes--are distinguished and influential in the public debate make it all the more important to counter their claims. The issue is the narrow--yet highly important--question of what Kavanaugh has to say about the conditions under which he would recuse himself from any case involving criminal investigations that implicate the president. What he concludes about his recusal obligations may turn out to be of great significance to the court and the Trump presidency.
WASHINGTON – U.S. Supreme Court nominee Brett Kavanaugh's past writings that a president should not be distracted by lawsuits and investigations could become a flash point in what is already shaping up to be a contentious confirmation battle. With special counsel Robert Mueller investigating whether President Donald Trump obstructed justice, questions about whether a chief executive can be subpoenaed or indicted could potentially reach the Supreme Court. Though there is no indication at this point that will happen, it is sure to be a major topic of questioning at Kavanaugh's confirmation hearing as the Senate weighs whether to confirm him to replace retiring Justice Anthony Kennedy. Democrats opposing Kavanaugh are already weighing in, saying the past writings -- particularly a legal article he wrote on the separation of powers in 2009 -- suggest he would be inclined to side with Trump. Senate Democratic leader Chuck Schumer said Tuesday that he "seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise."
WASHINGTON – Democrats opposing Supreme Court nominee Brett Kavanaugh's nomination are seizing on remarks he made in 2016 saying he would like to put the "final nail" in a Supreme Court precedent upholding an independent counsel law as constitutional. Republicans say Kavanaugh's writings and speeches are being taken out of context. The independent counsel law, which took the hiring and firing of prosecutors away from the executive branch, expired in 1999 and does not apply to special counsel Robert Mueller's Russia investigation. The ongoing probe falls under the Justice Department. But Democrats have put Kavanaugh's views on executive power and presidential investigations front and center as they battle his nomination.
Supreme Court nominee Brett Kavanaugh once suggested that the Supreme Court decision that forced President Nixon to turn over the Watergate tapes may have been "wrongly decided." Kavanaugh was taking part in a 1999 roundtable with other lawyers, according to The Associated Press. The conversation was documented in a decades-old Washington Lawyer magazine article--one of thousands of documents Kavanaugh handed over to the Senate Judiciary Committee on Saturday as part of the confirmation process. Kavanaugh is known for his support of strong executive authority--a belief that could take center stage if special counsel Robert Mueller tries to force President Donald Trump to testify in the ongoing investigation of Russia's interference in the 2016 election. U.S. v. Nixon restricted the president's ability to claim executive privilege in order to avoid handing over information as part of a criminal investigation.
Does Brett Kavanaugh defer to precedent? The answer to this question could well determine the future of Roe v. Wade and reproductive rights in this country. Kavanaugh's speeches and judicial opinions suggest that he would not defer to Roe as precedent, and that he would overturn it entirely. Perhaps more surprisingly, he has hinted that he would essentially overturn the independence of the Federal Reserve and other vital independent agencies by handing control of them over to the president. And perhaps most disturbingly, Kavanaugh's reverence of a Scalia dissent in a critical case about independent prosecutors--and the judge's ideologically driven claims about that case--raises questions about how he treats precedent and whether he views the work of special counsel Robert Mueller's office as appropriate.