Although Judge Brett Kavanaugh did his best to evade and avoid questions on his views of presidential power, the dogged questioning of Senators coupled with his past record make clear just how troubling his views are, particularly in light of the major cloud that now hangs over the Oval Office. Specifically:
Kavanaugh’s views raise serious concerns about accountability for and investigations of presidential misconduct. He agreed with Sen. Coons that he had stated in 1998 that a president cold fire a special counsel investigating him and although he refused to state whether he still believed that, he suggested no reason to believe that his views had changed. Although he denied that he has taken a position on whether a president can be criminally investigated or indicted under the Constitution, his record makes clear that he has. In a 1998 symposium, he has argued that “[t]he Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.”
Similarly, when he and others were asked on a 1998 panel how many believed,” as a matter of law,” that a sitting president cannot be indicted, Kavanaugh raised his hand. At the hearing, Kavanaugh claimed he embraced US v. Nixon and appeared to disavow previous remarks that the case was “wrongly decided” by “taking away the power” of the president to control information in the executive branch by holding that the courts could compel him to disclose the Watergate tapes in response to a subpoena by a “subordinate” special prosecutor. But Kavanaugh has not explained his prior statement, and refused to state whether a sitting president could be properly subpoenaed. And he refused to answer whether a president could decide to pardon himself. And Kavanaugh refused to agree to recuse himself if a case comes to the Supreme Court involving these or other issues and President Trump.
Kavanaugh also did not retreat from his troubling record on efforts by Congress to set up independent agencies that he has claimed improperly infringe on the President’s power. He did not disavow his prior statement that he would like to “put the final nail in” an important Court decision that upheld a law creating an independent counsel, and continued to try to argue, despite clear precedent to the contrary, that the decision has already been effectively overturned. He adhered to his dissent in a decision that upheld Congress’ decision to create the Consumer Financial Protection Bureau with a director who can be fired only for cause, insisting that the President had to have the power to fire the director at will. He dodged questions about an important 1935 Court decision that upheld Congress’ power to create independent agencies like the FTC, but this record makes clear that this decision could well be on his list of Court holdings to overrule. In several opinions, he has cited with approval a critique claiming that the ruling is “one of the more egregious opinions to be found” among all Court holdings.
Finally, Kavanaugh continued to show that he believes the courts are limited in their ability to constrain the president. Several times, he repeated a prior statement in one of his dissents on the Affordable Care Act that a president has the power to “decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” He tried to argue at the hearing that this simply reflected prosecutorial discretion, but as Senator Blumenthal pointed out, Kavanaugh’s views was across the board and would allow the present to decline to enforce entire statutes like the ACA. Kavanaugh’s view is disturbingly similar to the position taken in President Bush’s signing statement on the McCain anti-torture act, which Kavanaugh admitted to Sen. Leahy he had been involved in, that suggested the President could decline to enforce that law In some circumstances. And in response to questioning by Sen. Flake, he refused to state whether a president could effectively dismiss a criminal case against others for partisan political purposes, and refused to say anything about President Trump’s outrageous criticism of DOJ prosecution of two Republican congressmen over the weekend, declining even the tepid criticism of then-nominee Gorsuch about President Trump’s remarks criticizing the independent judiciary.
Overall, the first full day of questioning for Judge Kavanaugh has reinforced the serious concerns about his views on presidential power. Here may well be more to come on day two.