Democrats have the wrong argument against Kavanaugh

Democrats have the wrong argument against Kavanaugh
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Since Michael Cohen’s guilty plea last Tuesday to breaking campaign finance laws, Senate Democrats have been calling for a delay in Supreme Court nominee Brett Kavanaugh’s confirmation hearings, which are due to start after Labor Day. The argument for delay is that the plea by President TrumpDonald John TrumpTrump: Dems playing destructive 'con game' with Kavanaugh Several Yale Law classmates who backed Kavanaugh call for misconduct investigation Freedom Caucus calls on Rosenstein to testify or resign MORE’s former lawyer confirms that Trump may be occupying the Oval Office illegitimately, since he committed a crime to get there. They argue the Senate should either wait until the release of special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s report on the Russia investigation, or until after the midterms, so the public has a chance to consider the legitimacy of an individual who committed a crime in his bid for the presidency making a lifetime judicial appointment the will affect the country for years to come.

While there is some merit to this argument, it is too generic and too idealistic to convince anyone who hasn’t already made up his mind against the appointment on the merits. Moreover, the argument proves too much, since what holds for Supreme Court nominations presumably holds for any executive order or other presidential action — and that would completely disable the president from governing. The Republicans were wrong to use the impending national election as a reason for refusing to hold hearings on President Obama’s nomination of Merrick GarlandMerrick Brian GarlandFeinstein to GOP: Show some heart to Kavanaugh accuser Dem senator praises Ford opening the door to testifying Budowsky: Kavanaugh and the rights of women MORE in 2016. Arguably, Democrats would be similarly wrong to refuse to hold hearings on Judge Kavanaugh on grounds of potential presidential impeachment proceedings.

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Kavanaugh’s opponents, however, need not rely on this overly-general argument. There is a more specific argument against this particular nominee, one that has to do with his position on executive authority and Trump’s likely motive in picking him.  

 

Of all the nominees on the list compiled by Trump’s judicial adviser Leonard Leo, Judge Kavanaugh takes the most expansive view of executive privilege. He has suggested, for example, that U.S. v. Nixon, the Supreme Court decision upholding the Watergate special prosecutor’s subpoena to President Nixon, was wrongly decided.  He also has argued that the president should not be subject either to criminal prosecution or to civil litigation while in office. And in a 1998 article in the Georgetown Law Review, Kavanaugh argued that the president should have “absolute discretion” over “whether and when to appoint an independent counsel.” Likewise, he argued that the president should have absolute discretion over whether to remove him.

Kavanaugh's expressions of support for unfettered presidential authority were surely attractive to Donald Trump, who knows he may end up in a legal battle before the Supreme Court over his ability to use presidential powers to immunize himself against the Mueller investigation. In the wake of Cohen’s guilty plea and last week’s conviction of Trump’s former campaign chairman Paul ManafortPaul John ManafortDem warns Trump: 'Obstruction of justice' to fire Rosenstein Ex-White House official revises statement to Mueller after Flynn guilty plea: report Former White House lawyer sought to pay Manafort, Gates legal fees: report MORE, we have moved significantly closer to seeing Trump’s gambit pay off, assuming Kavanaugh is confirmed. What are the routes by which the anticipated test of presidential powers may come before the high court?

The first and most likely route to a Supreme Court case on executive privilege would come from a subpoena in the Stormy Daniels case. In the wake of the Cohen plea, Trump has been named as an “unindicted co-conspirator” for making illegal campaign contributions and then trying to cover them up. Daniels’ lawyer, Michael Avenatti, will subpoena the president to testify about the illegal payment. Unlike the voluntary chat the president has been saying he wants to have with Mueller, this appearance would be wholly involuntary and the president’s legal team would not be able to insist on pre-negotiated rules of engagement. 

The president will likely assert executive privilege to resist such an appearance, and if a federal judge, rightly viewing the matter as already addressed by U.S. v. Nixon, upholds the subpoena, the case could end up before the Supreme Court. 

The second likely route to a Supreme Court showdown could emerge from Manafort’s second trial, due to start imminently in a Washington, D.C., district court. In that case, Manafort will be tried for, among other things, lobbying as an unregistered foreign agent on behalf of Ukraine. If Manafort decides to cooperate, he will be asked about other instances of collusion with foreign powers, and in particular the infamous 2016 meeting in Trump Tower. The president could end up being implicated, but this time for something more serious than campaign finance violations, namely charges relating to Russian interference in the election.

Once again, this could result in a subpoena to the president, this time from the Mueller team.  And once again the application and continuing constitutionality of U.S. v. Nixon would be before the Supreme Court.

Other routes to a showdown in the Supreme Court are easily imaginable. Pardoning Manafort might do it, and certainly a self-pardon or issuing pardons for members of Trump’s immediate family could produce the same result. If Mueller ultimately decides to try to indict the president, that surely would land in the Supreme Court’s lap.

The real issue for opponents of Kavanaugh to press is this: Given that the president likely picked Kavanaugh because of his position on executive privilege, particularly on matters that may bear on Trump’s own situation, should the president have the benefit of that nomination if these matters come before the court? Even Kavanaugh’s defenders should object to a sitting president using his Supreme Court nomination powers to immunize himself against scrutiny of his own misdeeds.

What is the remedy? At the very least, Kavanaugh should have to recuse himself from any deliberation over the nature of executive privilege. Indeed, extracting a promise to this effect, both from Kavanaugh and from their fellow Republicans in the Senate, would be a fair point for Senate Democrats to insist on before agreeing to the impending hearings.

If Kavanaugh does agree to recuse himself from any case involving Trump’s ability to evade the reach of the special counsel’s office, would the president remain enthusiastic about his choice for the Supreme Court? As with his attorney general, Trump may lose interest in a nominee who would recuse himself on grounds of principle. That would be the acid test of the president’s motivations in his selection of Brett Kavanaugh.

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and the director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.