I sent the following message to my senators and Congressmen.  I suggest that you express your opinion as well:
President Trump's behavior in Helsinki was absolutely unacceptable.  It is important that Republicans NOT violate their own integrity by accepting in any way or to any degree, his contrived explanations.

Issues re: Brett Kavanaugh as a Supreme Court nominee

I sent the following message to my senators and Congressman:  Brett Kavanaugh seems to be an excellent choice for the Supreme Court.  However, given the circumstances, it would be best if, during the confirmation process, he promised to recuse himself regarding any case that comes before the Supreme Court regarding President Trump and the Mueller investigation.  --- Claude

Separately, I’ve written about my opposition to litmus tests for Supreme Court nominees.  Looking at past decisions and writings is appropriate.  I’ve done so here relative to Brett Kavanaugh.

As noted below, Judge Kavanaugh has argued “a judicial nominee’s general judicial philosophy is appropriate for consideration by the President and – with some deference to the President – by the Senate.”  I agree.  At least some of the issues below are “fair game”.  Additional questions regarding judicial philosophy are appropriate; I’m addressing only those I came across in these writings.

If I was a Senator, I would want to hear his thoughts about attorney-client privilege (see #1), about the court’s role in assuring fair elections (see #2) and about war powers (see #6).

A lot of attention has been given to Kavanaugh’s writings about deferring civil suits and criminal investigation of a sitting president.  In my view, those writings appear fairly non-controversial.  Most people agree that we don’t want presidents to be bogged down with such investigations while responsible for being president.  It is not clear to me how Kavanaugh’s past writings would impact potential rulings related to the Mueller investigation.

Regardless of his thoughts regarding potential Mueller-related rulings, I believe Kavanaugh should agree, in advance, to recuse himself from voting if such a case were to come in front of the Supreme Court.  Many citizens have serious concern because he was nominated by President Trump while the Mueller investigation was in full bloom and contentious, combined with the fact that he has written about these issues.  The best way to alleviate those concerns seems to be recusal from voting.

I acknowledge that Kavanaugh’s experience would add a lot of value to Supreme Court discussion of such a case.  I am not suggesting that he should abstain from discussion, solely that he should abstain from voting.

1)    Although I was very upset at President Clinton’s continued inability to control his urges despite having experienced the issues becoming public, I strongly opposed Independent Counsel Starr’s effort to access Vincent Foster’s client papers during the Whitewater investigation.  Attorney-client privilege is intended to protect clients.  Why would it matter whether the attorney is alive or dead?  When Starr raised his challenge, I was glad my mother had died, because, as a survivor of Nazi Europe, she would have been chilled to the bone upon hearing such a terrifying suggestion.  Kavanaugh argued that client-attorney privilege should have evaporated under these circumstances.  I don’t know what Kavanaugh argued (I have not found a copy of his paper); I don’t know if he was his client’s, rather than his own, opinions; nor if he has changed his mind.  I’d ask about this, in order to understand how he views civil liberties.

2)    Kavanaugh argued that the Bush-Gore recount in Florida should stop.  Having voted for Bush, I was nonetheless appalled by the Supreme Court decision to stop the recount.  I don’t know what Kavanaugh argued (I have not found a copy of his paper); I don’t know if he was representing his client’s, rather than his own, opinion, nor if he has changed his mind.   I’d ask about this in order to understand how he views the court’s responsibility regarding protecting the voting process.

3)    In 1998, Kavanaugh wrote a Georgetown Law Journal article, in which he recommended six changes to the Independent Counsel (IC) law (“Ethics in Government Act of 1978”).  I’ve read Kavanaugh’s paper and agree with e) and f), but am inclined to disagree with a)-d).  I’d want to give them much more thought and hear discussion before reaching a conclusion about these suggestions but these were not judicial decisions and generally would not be areas I would pursue in questioning.  Kavanaugh suggested action by Congress, because he felt the current law is weak.  Clearly, he was not suggesting that the court should overturn current law.

a.    He argued that an IC should be nominated by the President and confirmed by the Senate, rather than named by a three-judge panel appointed by the Supreme Court Chief Justice.

b.    “The President should have absolute discretion (necessarily influenced by Congressional and public opinion) about whether and when to appoint an independent counsel.”

c.    The President and Attorney General should “define and monitor the independent counsel’s jurisdiction”.  For me, that might depend on the particular purpose of the independent counsel on that case. 

d.    He argued that the proceedings should remain private, except that the President and House Judiciary Committee should be informed of any evidence of possible misconduct by current executive officers (including the President) that might “dictate removal by the President or impeachment by Congress”.  That seems subjective.

e.    “Congress should establish that the President can be indicted only after he leaves office.”  I agree.  Perhaps there should be exceptions relative to treason, etc., but the impeachment process may be sufficient in that regard.  Kavanaugh argues that such protection “would expedite investigations in which the President is involved (Watergate, Iran-Contra and Whitewater)”; he is NOT trying to undermine such investigations.

f.     “Congress should codify… that the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.”  I agree.

4)    Kavanaugh wrote an article about separation of powers in the Minnesota Law Review in 2009. 

a.    He reiterated his Georgetown arguments about civil and criminal suits and investigations, noting that Congress has protected “certain members of the military” from current civil suits.

b.    “…using the confirmation process [of staff reporting up to the President] as a backdoor way of impeding the President’s direction and supervision of the executive branch … is constitutionally irresponsible.”  I agree and challenge anyone who disagrees to question themselves carefully as to whether they approved of Congressional resistance during both the Obama and Trump administrations.  The answer should be the same relative to both administrations.

c.    “the independence and life tenure of federal judges justifies a more searching inquiry by the Senate into their fitness and qualifications”.  I agree.

d.    “Many Senators seem to believe that a judicial nominee’s general judicial philosophy is appropriate for consideration by the President and – with some deference to the President – by the Senate as well.   At the same time, the political ideology and policy views of judicial nominees are clearly unrelated to their fitness as judges, and those matters therefore appear to lie outside the Senate’s legitimate range of inquiry.”  Kavanaugh agrees with the “many Senators” and I do as well.

e.    “The Senate should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the President.”  I agree.

f.     Senators’ involvement in the confirmation of heads of independent agencies should be more similar to judges than to executive staff.  However, as noted below, he questions the existence of so many independent agencies.

5)    Citing problems such as misjudging Saddam Hussein’s weapons program, mismanaging Hurricane Katrina and the failure of fiscal regulatory agencies relative to the financial crisis, he argues that:

a.    The Executive branch should be reformed to avoid “extraordinary duplication, overlap and confusion”.

b.    Independent Agencies are constitutionally permitted and appropriate in some circumstances (e.g., Federal Reserve Board), but we have too many of them.  He observes that such people’s actions contributed to the financial crisis and writes “Why shouldn’t someone have the authority to fire such persons at will?”  He is saying only that there seem to be too many and careful thought should be given to each.

These positions seem reasonable and irrelevant to Supreme Court confirmation.

6)    Relative to separation of powers regarding waging war, Kavanaugh offered the following opinions:

a.    The President should “try to ensure where possible” that his actions do not involve steps which Congress has prohibited.

b.    The Supreme Court should take consistent stances on how various war authority laws interact.

c.    Courts should be “cautious about finding implied congressional prohibition” based on “inferences from congressional silence”.

It would be appropriate to question why a president would ever do something that had been prohibited or why court might ever draw inferences from congressional silence.  However, I think it is clear that things could occur subsequent to a prohibition that might justify immediate action.  We can’t anticipate every possible occurrence.  Kavanaugh would presumably take that stance, but questions would be appropriate.

7)    Lastly, Kavanaugh suggests that a constitutional amendment to create a single six-year term would have several benefits.  I lean against his arguments, but feel that this topic has no relevance in determining whether to confirm him as a judge.

Litmus Tests for Supreme Court Justices

I have NEVER favored litmus tests for Supreme Court justices.  With both parties consistently pushing for their preferred litmus tests, I challenged myself recently on that issue more thoroughly than in the past.  Although I came up with a variation of litmus tests which is acceptable to me (see below), I concluded once again that I prefer to have no litmus tests.

By litmus test, I mean that a Supreme Court candidate must profess a particular position on a particular issue in order to be nominated to the bench.

I believe a potential nominee should be evaluated based on his/her portfolio of decisions:

1. Judicial philosophy, including interpretation of the constitution, separation of powers, proper respect for legal precedent, etc. (“proper” is intentionally subjective)
2. How has the nominee ruled in the past?
3. Has (s)he expressed clearly communicated decisions?
4. Have those decisions demonstrated clear thinking?
5. Have they had the fairness to make a decision which conflicts with their personal preferences?
6. Have they had the integrity and courage to dissent even when it might be unpopular?
7. Are their dissents as well thought-out and written as their majority opinions?
8. Have their past decisions stood up or have they been reversed?  If reversed, why?
9. Have their decisions influenced the Supreme Court?
10. Have they handled themselves properly?

A litmus test is inappropriate because:

a)      A judge should make a decision based on the merit of a particular case, which can’t be entirely anticipated in advance.

b)      A judge should not make a final decision before considering all the evidence in the case and the pleas of the opposing attorneys.

c)       A judge should not make a final decision before hearing the discussion of the other Supreme Court justices.

d)      A judge should ask questions to help clarify issues.

e)      A litmus test question can pressure the justice to act inappropriately when a related case comes before that judge.  The judge should judge the case on its merits, not based upon what the judge may have said in the past.

f)       People may change their mind over time.

g)      There may be a good reason not to over-rule, or perhaps only partially modify, a previous decision.

h)      A case may not present a good basis for a ruling a justice might make in a somewhat similar case.

i)        A litmus test may be “compelled speech” which is illegal for public employees.  “We won’t appoint you unless you promise to take a particular stance.”

j)        A nominee is reasonably reluctant to criticize current justices during the nomination process.

k)      Neither the selector nor the other political party should have a litmus test.  The non-selecting party, in my opinion, has a responsibility to approve the selected candidate unless that candidate is unworthy of the job.

Because of the litmus tests that Donald Trump and Hillary Clinton espoused during the election and the litmus tests which both parties are proposing now, I challenged myself hard on this issue recently.

The following possibility had some appeal:

1. Tell the nominee in advance that (s)he will be questioned relative to a particular past case.
2. The nominee is then expected to review all the pleadings and the opinions on the case at each judicial level (what I think they would do if sitting on the bench).
3. The nominee is then asked how (s)he thinks (s)he would have ruled on that case if it were brought to them today with the same arguments.

Such a question allows the nominee to review all the background and to speak to a very specific case, rather than on a future speculative case.  This approach might take a lot of time, but for a permanent appointment that could make sense.

Nonetheless, I am still uncomfortable because I don’t like litmus tests for the reasons stated above.  The nominee would not have heard all discussion, nor been able to ask questions.  A current discussion would differ, which might affect a judge’s decision.

If this was done, and if the interrogators would accept an answer which might be hedged (“I think I would …”), I would find it acceptable even though it is not my preferred approach.