On July 24, 1974, the Supreme Court ruled unanimously in an 8-0 decision (Justice William Rehnquist recused from the decision) that President Richard Nixon must comply with the subpoena and produce the tapes and documentation pertaining to the Watergate investigation. With the unanimous decision delivered by Chief Justice Warren Burger, the Court held that the President of the United States did not have an absolute right to executive privilege to withhold information pertinent to an investigation: “The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III… [W]hen the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”
On August 8, 1974 – exactly one month after United States v. Nixon was argued before the Supreme Court -- President Nixon announced his resignation, avoiding the all but certain impeachment proceedings.
This year, President Donald Trump nominated for the position of Associate Justice a man who views this decision as being wrongly decided in the heat of the Watergate controversy: “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.”
These were the words of Judge Brett Kavanaugh at a roundtable discussion in 1999 on the subject of attorney-client privilege. And they are words that are highly salient under the Trump Administration, which has been characterized by broad assertions of executive branch authority and in many cases, a blatant disregard for norms and separation of powers. Judge Kavanaugh also expressed the view that the Court might have done well to stay out of this legal dispute altogether, rather than weigh in to this contentious issue of intra-branch disputes amid scandal. That said, in 1998, he wrote that “Congress should codify the current law of executive privilege available in criminal litigation to the effect 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. That rule strikes the appropriate balance between the need of federal law enforcement to conduct a thorough investigation and the need of the President for confidential discussions and advice.” While this would suggest some view of limits on the scope of executive privilege, he views Congress as being responsible for defining that authority, and this ambiguity in his position on the scope of executive privilege – an especially significant area of law today – is troubling at best.
Where Judge Kavanaugh stands now – whether thinking United States v. Nixon was an erroneous decision or whether Congress should codify a limited executive privilege – will be vital to assess over the course of the confirmation process. Moreover, it is important to know how Judge Kavanaugh – if acting as Justice Kavanaugh – would view weighing in on such salient matters of curbing the exercising of presidential powers.
It is not uncommon for advocates of judicial restraint to guard against the Supreme Court ruling based on the passions of the times, instead grounding themselves in the text and original meaning (or so they say) while leaving several other policy issues to be resolved by the elected branches and the states. But there is a great difference between avoiding judicial activism and committing judicial abdication.
While Alexander Hamilton viewed in Federalist 78 that the Supreme Court would be the weakest branch of government, having neither force nor will and only judgment, at many points in our history the Supreme Court has been (often to conservatives’ chagrin) a significant vehicle for social progress, and has operated as a vital check on the other branches should they test the limits of their constitutional authority. Indeed, we know that the framers were concerned about vesting too much authority in the executive branch, lest they create a figure not unlike the king against whom this young nation had just rebelled. The Roberts Court has certainly been a far cry from the role that the Warren and Burger Courts played, though its role in guarding against excess executive branch authority is no less crucial.
In Trump v. Hawaii, the Court’s 5-member majority that upheld the Trump Administration’s travel ban viewed the Executive Order as not an issue of First Amendment violations (Chief Justice Roberts noted the absence of the word “religion” in the text of the Order, thus suggesting a facial neutrality and opposing the dissenters’ reliance on extrinsic sources to judge animus toward a religious group). Rather, Chief Justice Roberts emphasized the immigration and national security issues that fall squarely in the powers of the presidency. One of the enduring problems associated with this holding is that it established a precedent according to which one can justify discriminatory policy under the deferential rational basis test rather than the strict scrutiny that would be otherwise applied, provided that there is a connection (however tenuous) to national security. Thus, the Court ushered in an expansion of the president’s latitude to assert broad authority in the name of a legitimate government interest of security.
It is all the more important that the next Supreme Court justice demonstrate a commitment to (or at minimum, a willingness to) guard against excess assertions of executive branch powers, and that the Senate’s votes reflect this core concern that transcends (or should transcend) partisan identification.
President Trump has not only pardoned some truly reprehensible figures (e.g., Joe Arpaio), but he has floated the possibility of pardoning himself, a move that while not explicitly prohibited under Article II, would be based on a faulty assumption that the President of the United States is above the law. And this issue has thus far been untested in the courts.
Judge Kavanaugh has not proven himself to be a man who will hold such a president accountable for wrongdoing.
Indeed, in 1998 he wrote, “The President of the United States is not subject to indictment or information under the laws of the United States while he serves as President” (p. 9). Such a claim of presidential immunity leaves little question as to why President Trump would be attracted to the notion of a Justice Kavanaugh taking the place of Justice Kennedy, who had been the Court’s median justice. But it hardly provides comfort to an American public who not only view the president unfavorably, but rely on the other branches to operate as real, not just theoretical checks on his authority (especially as the majority party in Congress continues to enable him).
Judge Kavanaugh’s views on the president’s ability (or lack thereof) to be indicted have been demonstrated in other contexts, writing in 2009 that indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis.” Thus, Judge Kavanaugh weighs the competing interests of the expediency with which the president can operate in his day-to-day duties against the interest that the American people might have in a corruption-free government, or at least effective inter-branch oversight. Time and again, he has prioritized the former over the latter.
While judges can often be reticent about their views of Supreme Court precedents – and indeed, appellate judges’ preferences can at times be difficult to discern because they are bound by Supreme Court precedent – in a 2016 event with the American Enterprise Institute, Judge Kavanaugh expressed a desire to “put the final nail” in the 1988 Supreme Court precedent of Morrison v. Olson (decided 7-1 with Justice Kennedy not participating and with a prominent dissent by the late Justice Antonin Scalia). While this holding evaluated the constitutionality of the creation of the independent counsel under the Ethics and Government Act (1978), which expired in 1999, and while there are distinctions between the roles of independent counsel and special counsel (the latter being the capacity in which Robert Mueller serves currently), Judge Kavanaugh’s candor here is revelatory, and consistent with his broader pattern of sweeping views of presidential powers. That is, Morrison v. Olson fundamentally strikes at the question of whether Congress is constitutionally capable of creating an independent investigative authority within the executive branch that is not directly controlled by the president who is under investigation.
Setting aside the applicability of this holding to Special Counsel Mueller, it does not require much power of imagination to consider why opposition to Morrison v. Olson and to United States v. Nixon should elicit more than simply a furrowed brow and a concerned tweet. Rather, it sheds important light on the scrutiny with which a Justice Kavanaugh would evaluate the firing of Special Counsel Mueller, and the extent to which he would reject thorough investigation of the president’s conduct while in office.
There are substantive reasons for both parties to be concerned about Judge Kavanaugh becoming Justice Kavanaugh, with Republican Representative Justin Amash rightly sounding alarm bells about Fourth Amendment considerations that should appeal to libertarians, and Democrats rightly sounding alarm bells on issues pertaining to reproductive rights and beyond. But the stickiness of reshaping our understanding of the balance of power among the branches is not something that should be taken lightly along with the rest of Senator McConnell’s political opportunism.
Amid polarization and gridlock, it is common to bemoan the inefficiencies of our system of government. But inefficiency in American politics is a feature, not a bug. It is aimed at safeguarding stability and predictability in the law, and requiring broad support to advance and establish the legitimacy of new constitutional provisions and procedures. And to give a lifetime appointment on America’s highest court to a man who values efficiency over rule of law, especially amid a president intent on defying such norms and rules, is nothing short of reckless.