Bench Memos

Law & the Courts

Does Brett Kavanaugh Want to Overrule United States v. Nixon?  Not So Fast.

Senate Minority Leader Chuck Schumer asserted this weekend, “According to his own words, Brett Kavanaugh even believes the 8-0 decision that held Richard Nixon accountable was wrongly decided.”  Schumer continued, “It bodes very poorly for any decision that [Kavanaugh] might make to hold President Trump accountable.”

Schumer was referring to United States v. Nixon, the landmark 1974 Supreme Court case that required President Nixon to turn over the subpoenaed Watergate recordings.  In Nixon, the Court held that a president’s claim of executive privilege not based on national security interests is not absolute, and that “the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

To support his claim, Schumer points to a 1999 roundtable discussion that included Kavanaugh as a participant.  A transcript of the discussion appears in a 1999 issue of Washington Lawyer magazine, a copy of which Kavanaugh produced to the Senate Judiciary Committee with his Senate questionnaire last Friday.

The problem is that neither the 1999 transcript nor Kavanaugh’s writings or speeches about Nixon  during the last two decades lend any credence to the notion that Kavanaugh is critical of the decision—much less does he want to overrule it.  In advancing the argument that Kavanaugh wants to overturn Nixon, Schumer and others ignore the overwhelming majority of what Kavanaugh has publicly said about the precedent, and instead yank Kavanaugh’s comments from the roundtable conversation out of context in order to recklessly advance a false narrative.

Let’s look first at what Kavanaugh has written and said about Nixon over the past two decades before turning to the 1999 roundtable.

Kavanaugh’s expertise in the area of executive privilege dates to the late 1990s, when he worked for the Office of Independent Counsel Kenneth Starr investigating President Bill Clinton.  In that capacity, Kavanaugh was directly involved in litigation seeking the production of documents withheld by the Clinton Administration, arguing on multiple occasions that various documents sought by the independent counsel were not covered by executive privilege under Nixon (See, e.g.In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (briefed and argued by Kavanaugh); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (briefed by Kavanaugh)).

Following his tenure in the Independent Counsel’s office, Kavanaugh in 1998 defended the Nixon case in an article he published in the Georgetown Law Journal. Kavanaugh wrote that there was “no need [for the Court] to revisit” Nixon and that the decision “reflects the proper balance of the President’s need for confidentiality and the government’s interest in obtainingall relevant evidence for criminal proceedings.” Kavanaugh went so far as to advocate for legislation that would prohibit the president and executive branch from invoking privilege to avoid complying with valid criminal subpoenas—a law that would strengthen Nixon’s core holding.  Kavanaugh reasoned that “courts have rightly rejected the executive’s attempt to conceal [relevant] information, and Congress should codify those results to prevent future Presidents from trying the same gambit.”  Do these sound like the words of someone eager to overturn Nixon?

Kavanaugh’s defense of the Nixon precedent grew even more robust after his confirmation to the D.C. Circuit in 2006.  In a 2014 speech at the Notre Dame Law Review Symposium (and in an accompanying Notre Dame Law Review article), Kavanaugh referred to Nixon as one of the three “most significant cases in which the Judiciary stood up to the President.”  Likewise, in a 2015 speech at Catholic University’s Columbus School of Law (and follow up article in the Catholic University Law Review), Kavanaugh wrote about the importance of “judicial backbone,” and cited Nixon as one of the “greatest moments in judicial history”:

[T]o be a good judge and a good umpire you have to possess some backbone.  An umpire or referee has to keep control of the game, and be able to make tough calls against the star players or the home team.  As a judge, you must, when appropriate, stand up to the political branches and say some action is unconstitutional or otherwise unlawful.  Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law.  That takes backbone, or what some call judicial engagement.  To be a good judge and a good umpire, you have to possess strong backbone.

Once again, this hardly sounds like someone champing at the bit to overturn Nixon.  On the contrary, Kavanaugh’s words cast a vision of a jurist who prioritizes judicial independence from the executive branch.

Now, let’s turn to Kavanaugh’s remarks during the 1999 roundtable discussion.  Unlike Schumer though, I’ll look at what Kavanaugh said in the context in which they were said.

The roundtable was an informal discussion focused on the topic of attorney-client privilege that included members of President Clinton’s legal defense team, Kavanaugh, and a panel moderator.  During the discussion, both Kavanaugh and the moderator noted that the privilege arguments that had been made by President Clinton’s defense team were similar to President Nixon’s unsuccessful arguments in Nixon.  Kavanaugh reiterated that the rule that prevented the Clinton’s defense from asserting executive privilege “stems directly from Nixon.”  Judge Kavanaugh then pointed out that a Clinton lawyer on the panel had “not argued that Nixon was wrongly decided.” Kavanaugh continued: “But maybe Nixon was wrongly decided, heresy though it is to say.”

Read in context, Judge Kavanaugh’s reference to Nixon as “maybe” being “wrongly decided” is most easily understood as an argument that the position that the Clinton legal team had taken could prevail only if one assumed that the Nixon case was wrongly decided—an argument that Clinton’s team had not made.

To reinforce this point, Kavanaugh later on in the discussion said, “I’m curious to know what people who are upset about the recent privilege rulings think about the Supreme Court’s ruling in Nixon.  Should United States v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.”

Was Kavanaugh suggesting here that Nixon should be overruled?  Not at all.  Kavanaugh’s rhetorical question (and answer) instead served to advance his argument that the Clinton legal team’s position on the privilege question was in conflict with Nixon, and could succeed only if Nixon were to be overturned.  Rather than questioning the holding in Nixon, Kavanaugh was challenging his opponents on the panel to reconcile their legal position in the Clinton investigation with Nixon.

Once again, Schumer and others are showing the depths of their desperation to gin up opposition to Kavanaugh, in this instance by misleadingly attributing to Kavanaugh views about Nixon that are contradicted by both Kavanaugh’s own statements during the roundtable discussion and by Kavanaugh’s comments writings and remarks over the last 18 years.  Rather than someone who would be “unwilling to hold President Trump accountable,” Kavanaugh’s statements about Nixon paint a picture of someone who is deeply committed to judicial independence from the executive branch.

Try again, Senator Schumer.

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