Brett Kavanaugh hasn’t even had a confirmation hearing yet — but the calls for the Supreme Court nominee to recuse himself from possible future cases involving President Donald Trump are already intensifying.
They began soon after Kavanaugh’s nomination was announced, motivated by the nominee’s 2009 Minnesota Law Review article that asserted presidents shouldn’t be “burdened” by criminal investigations or civil lawsuits. The cries grew louder last week, when an old clip of Kavanaugh surfaced in which he suggested he was itching to overturn a decision upholding the constitutionality of appointing an independent counsel to investigate government wrongdoing.
Then came more fuel: Buried in pages and pages of documents released by the Senate Judiciary Committee was an interview in which Kavanaugh suggested that United States v. Nixon — the case that forced Nixon to hand over the Watergates tapes — might have been wrongly decided.
Those demanding Kavanaugh recuse himself from cases involving special counsel Robert Mueller’s investigation are arguing that Kavanaugh’s deference toward executive power — and skepticism about investigations into the president — may have factored heavily into Trump’s decision to nominate him to the Court.
Democrats are rallying around other flashpoints in Kavanaugh’s record, from abortion to health care. But the focus on his views on executive power and presidential investigations underscores the strange scenario the country faces: a president under investigation selecting a judge who could decide his fate.
Recusal is unlikely — past Supreme Court nominees have decided on pivotal cases for the presidents that nominated them. But as the investigation from Mueller intensifies, the chance is greater that something ends up before the Supreme Court — whether it’s on the question of subpoenas, presidential pardons, or even a challenge to Mueller’s appointment.
Kavanaugh has a track record of skepticism about investigating the president
The president and his associates are deeply enmeshed in an unfinished criminal investigation. Senators will want to know about conversations Kavanaugh had during his White House vetting process, what he might have been asked by Trump’s team, or if any of his writings or opinions appeared to prejudice him against the special counsel investigation.
A few items from Kavanaugh’s record seem likely to play a big role in this discussion. In the 1990s, Kavanaugh worked for the independent counsel Ken Starr, who led the investigation into President Bill Clinton. He then went on to serve in President George W. Bush’s White House, where he claims to have had a change of heart about presidential investigations, seeing them as something that can “cripple the federal government.”
“Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry,” Kavanaugh wrote in his 2009 Minnesota Law Review article. “But in retrospect, that seems a mistake.”
Another piece of evidence comes from a March 2016 event at the American Enterprise Institute. A clip, first reported by CNN, shows Kavanaugh being asked if there are Supreme Court decisions he would overturn. He answers a decisive “yes.” The interviewer asks for an example; Kavanaugh is reluctant to give one, but finally volunteers Morrison v. Olson. “It’s been effectively overruled,” he says. “But I would put the final nail in.”
In light of video of #Kavanaugh saying he’d “put the final nail” in Supreme Court ruling that upheld independent counsel statute— Ryan Goodman (@rgoodlaw) July 18, 2018
I’m re-upping my piece with @NormEisen on questions Senate must ask him and get real answers: https://t.co/RT0mQAWJrO pic.twitter.com/sNVwXeL3RJ
Morrison v. Olson was a case about the constitutionality of the 1978 Ethics in Government Act, which provided for the appointment of an independent counsel to investigate wrongdoing by government officials. (Congress let the statute expire in 1999.) The central question was whether the statute violated the Constitution’s provisions for the appointments clause and separation of powers.
The Court ruled 7-1 that it did not, with Chief Justice William Rehnquist writing the majority opinion. But Justice Antonin Scalia wrote a famous lone dissent that has a bit of a cult following among (mostly, but not exclusively) conservatives. Scalia objected to what he saw as a violation of separation of powers; the independent counsel, in his interpretation, was performing an executive function outside the scope of the executive branch.
The special counsel — the role Mueller holds — has a similar job to that of an independent counsel, but it’s governed by a Justice Department regulation, meaning it’s within the executive branch. But Kavanaugh’s willingness to overturn Morrison still raises questions about his views on presidential investigations and his deference toward precedent.
There’s more. The Senate Judiciary Committee this weekend released a bunch of documents relating to Kavanaugh, including a roundtable interview from a 1999 issue of Washington Lawyer magazine where Kavanaugh suggests the Court might have gotten wrong its unanimous ruling by forcing Nixon to hand over the Watergate tapes, a decision that led to the president’s resignation. Kavanaugh presents the idea that perhaps an inferior part of the executive branch was inappropriately elevated above the president:
But maybe Nixon was wrongly decided — heresy though it is to say so. 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.
This adds more ammunition to the argument that Kavanaugh doesn’t just look skeptically on presidential investigations — he’s openly questioning decades-old precedent. All of which might sound just fine to the current president.
Trump’s vetting team was aware of the Minnesota Law Review article that’s very anti-presidential investigation. If Trump picked Kavanaugh for those reasons — an insurance policy against future litigation — the recusal question is one that some legal experts think Kavanaugh needs to address seriously.
It’s not a matter of whether Kavanaugh’s views are right or wrong. It’s a matter of whether they factored into Trump’s decision to pick him.
Democrats aren’t exactly trying to attack the merits of Kavanaugh’s arguments on executive power, but instead are attempting to make the case that this particular nominee, at this particular time, is problematic.
The suggestion is that Trump is potentially handpicking the deciding vote if a question in the Mueller investigation, or other litigation Trump faces — from financial dealings to the Summer Zervos lawsuit — ends up before the Supreme Court.
On July 20, Sen. Cory Booker (D-NJ) sent a letter to Kavanaugh asking him to pledge to recuse himself from any cases related to Mueller’s investigation and any others that “may immediately impact the President and his associates as it relates to the ongoing criminal investigation should you be confirmed.”
“The American public must have full confidence that the integrity of any decisions handed down by the Supreme Court on these matters will not be tainted by any impropriety or the appearance of impropriety from the President’s selection of you,” Booker continued. “Many of the questions that could reach the Court go to the core of our democratic system. No clouds should have over the Court’s decisions.”
Senate Minority Leader Chuck Schumer and Sen. Richard Blumenthal (D-CT) have echoed those calls, suggesting that Kavanaugh should step away from any Mueller-related cases.
Some experts agree that Kavanaugh has a lot to answer for, and it should be something lawmakers address in his confirmation hearing.
“Judge Kavanaugh needs to address the issue of recusal in his testimony,” Bob Bauer, a law professor at NYU, wrote in an email, “and answer the question of why his highly developed views of this subject do not require recusal in the event that these issues involving Trump come before the court.”
Bauer, who’s written on the subject with fellow NYU law professor Ryan Goodman, told Vox earlier this month that recusal is a “legitimate question to be raised.” It’s not that Supreme Court justices can’t make decisions about the presidents who appoint them — it’s that Kavanaugh has a very distinct perspective on presidential investigations at a time when a president is under an extremely sensitive inquiry.
Republicans, of course, are pushing back on that argument. Sen. John Cornyn (R-TX) called the early pushes for Kavanaugh’s recusal “ridiculous.”
The White House, in particular, pushed back on the fervor over the Morrison clip, noting that Democrats as well as Republicans have criticized the independent counsel statute. The White House also noted that Mueller, a special counsel, is appointed under a Justice Department regulation — an entirely different situation from what was at issue in Morrison v. Olson.
The Dem attacks on Kavanaugh's 2016 speech today are laughable, and show a total lack of understanding. There is a clear legal difference between the Independent Counsel statute and the Special Counsel regulation. Let's not play fast and loose.— Raj Shah (@RajShah45) July 18, 2018
And why Justice Kagan called Justice Scalia’s dissenting opinion in the Morrison case “one of the greatest dissents ever written and every year it gets better.” https://t.co/BVH51obfUg— Raj Shah (@RajShah45) July 18, 2018
Other defenders of Kavanaugh pointed out that his opinion in the Nixon case might have evolved. He said in a 2016 Catholic University Law Review article that Nixon stands among other landmark decisions — such as Marbury v. Madison (which established the process of judicial review) and Brown v. Board of Education — as an example of when “judges stood up to the other branches, were not cowed, and enforced the law.”
Kavanaugh likely isn’t going to recuse himself — and there’s a case to be made that he shouldn’t
The Supreme Court doesn’t really have set rules for recusal. There’s a code of conduct for federal judges, but the Supreme Court, as the highest court, gets a pass, although the justices tend to follow similar guidelines that revolve around conflicts of interest, or the appearance of a conflict of interest.
Supreme Court recusals are relatively rare, Jonathan Turley, a law professor at George Washington University, told Vox. “The primary reason for recusal is a personal interest in the outcome in the case, or personal or pecuniary connection to one of the parties, that often deals with investments,” he said.
Justices will also recuse themselves if they had direct involvement in the case or role in the litigation. Elena Kagan, for example, recused herself from more than a dozen cases after she joined the Court because she had worked on many of them as President Barack Obama’s solicitor general.
But Kavanaugh doesn’t quite fit the standard reasons for recusal — at least based on what we know publicly, which is mostly his legal writings and opinions.
“This doesn’t fall into a recognized basis for recusal, nor should it,” Turley said. “Quite frankly,” he added, “there is no constitutional or historical basis to claim a need for recusal.”
Kavanaugh gave interviews and opined on issues relating to presidential investigations long before he became a nominee for the Supreme Court. And as Yale lecturer and former FBI agent Asha Rangappa points out, the idea that a judge appointed by a president can’t rule fairly on him “validates and provides fodder for the growing belief that public servants entrusted with upholding the rule of law are driven by politics, rather than facts, evidence and the law.” It may be how Trump thinks, but it runs counter to the value of an independent judiciary.
Indeed, Justices Stephen Breyer and Ruth Bader Ginsburg, both Clinton appointees, didn’t recuse themselves from Clinton v. Jones, a unanimous decision stating that the president isn’t automatically due immunity in civil cases that arise outside his role as president. United States v. Nixon, which said there were limits on executive privilege, also had Nixon appointees join in the unanimous decision. (Rehnquist, a Nixon appointee, recused himself, though he had previously worked in the president’s Justice Department.)
But legal experts do agree that Kavanaugh’s writings, opinions, and blunt statements, as with the Morrison comments, mean he should be forced to answer questions that he’d normally try to get out of — forgoing the so-called “Ginsburg Rule” used to argue that justices shouldn’t broadcast how’d they’d rule on a particular case.
“On this occasion, you have a nominee who felt comfortable telling an entire room that he would like to drive the final nail into the coffin of Morrison,” Turley said. “I suspect it’s going to make it more difficult to decline to answer on his view of Morrison.”