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.
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.
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