The Corner

Law & the Courts

Democratic Desperation on Kavanaugh Is Showing

Sen. Cory Booker on Capitol Hill, January 2017 (Joshua Roberts/Reuters)

How can you tell that Democrats are flailing in their efforts to stop Judge Brett Kavanaugh’s Supreme Court nomination and don’t currently have the votes or a good plan to do so? Let’s look at the arguments they are trotting out right now. First up, Cory Booker:

Democratic Sen. Cory Booker (N.J.) is calling on Supreme Court nominee Brett Kavanaugh to recuse himself from any cases that might involve special counsel Robert Mueller’s investigation.

“To avoid the prospect that President Trump could effectively choose a judge in his own case, I request that you pledge to recuse yourself from any cases related to the Special Counsel’s investigation and any that otherwise may immediately impact the President and his associates as it relates to the ongoing criminal investigation should you be confirmed,” Booker said in a letter to Kavanaugh on Friday.

“The American public must have full confidence that the integrity of any decisions handed down by the Supreme Court on these matters will not be tainted by any impropriety or the appearance of impropriety from the President’s selection of you.”

This is ignorant of history. Justices have never recused themselves just because of who appointed them.

Neither of Bill Clinton’s Supreme Court appointees, Ruth Bader Ginsburg and Stephen Breyer, recused themselves in the 1997 Clinton v. Jones case, which personally involved the president and whether he could be forced to participate in a civil lawsuit while in office. Breyer had been nominated just eleven days after the Paula Jones lawsuit was filed, and after Clinton was already facing an independent-counsel investigation.

In 1998, when the Court decided an appeal involving Independent Counsel Kenneth Starr’s “Travelgate” investigation — and ruled in favor of Clinton by upholding the attorney-client privilege for notes of a conversation with former White House counsel Vince Foster before his 1993 death — Breyer and Ginsburg did not recuse; instead, they sided with Clinton.

Also in 1998, the Court declined to hear appeals by both Clinton and Starr from D.C. Circuit decisions involving the attorney-client and executive privileges applying to, among others, grand-jury testimony by White House counsel Bruce Lindsey and Clinton’s Secret Service detail. Not only didn’t Breyer and Ginsburg recuse, but they dissented together from the rest of the Court’s refusal to take Clinton’s appeal from the Lindsey ruling. Judge Kavanaugh will remember these precedents well; he was involved in litigating most of them and personally argued the Vince Foster privilege case before the Court.

Nor was this an unusual decision by Breyer and Ginsburg. Three of Richard Nixon’s appointees (Chief Justice Warren Burger and Justices Harry Blackmun and Lewis Powell) did not recuse themselves from the landmark United States v. Nixon decision in which Nixon tried to resist an order to turn over the famous Oval Office tapes. Burger wrote the opinion ruling against Nixon.

Justices do sometimes recuse themselves from cases where they were the judge in a lower-court decision (Kavanaugh is expected to recuse from multiple cases now on appeal from the D.C. Circuit in a variety of areas of law), and in some cases when they were involved in a decision by the president or other officials under challenge. But even those rules have not always been consistently enforced: Many justices have ruled on controversies involving presidents they had served as attorney general, solicitor general, or in other executive-branch capacities.

For example, the notorious Korematsu decision upholding Franklin D. Roosevelt’s detention of Japanese-Americans was decided by a Court consisting almost entirely of FDR appointees, including Stanley Reed (FDR’s solicitor general until 1938), Felix Frankfurter (an FDR adviser until 1939), William O. Douglas (FDR’s head of the Securities and Exchange Commission until 1939), Frank Murphy (FDR’s attorney general until 1940), Robert Jackson (Reed’s successor as solicitor general and then FDR’s attorney general until mid-1941), and Wiley Rutledge (an FDR appointee to the D.C. Circuit who was elevated to the Court in 1943, after the 1942 internment order).  William Rehnquist, by contrast, was the one Nixon appointee who recused himself in U.S. v. Nixon – because he had served as  Assistant Attorney General in the Office of Legal Counsel for Nixon’s Attorney General until 1971.

Sometimes, they’ve gone further: Justice Elena Kagan, appointed by Barack Obama to the Court in 2010, voted to uphold the constitutionality of Obamacare (and to strike down part of its Medicaid expansion) after having served as Obama’s solicitor general while the legislation was being written and passed, and having been involved in some of the administration’s meetings and discussions on the law — facts that led then-senator Jeff Sessions to call for her recusal in these pages.

Chief Justice Salmon P. Chase, Lincoln’s Treasury secretary for most of the Civil War, wrote the 1869 opinion in Texas v. White that not only rejected the legality of Texas secession, but did so in the context of upholding an 1862 decision by Chase himself declaring that Texas’s secessionist government could not sell bonds without his consent as Treasury secretary.

And, of course, Chief Justice John Marshall wrote the opinion in Marbury v. Madison, the decision that forms the foundation for much of the Court’s jurisprudence, even though the question before the Court was the legality of an appointment of an official whose commission was not delivered on time — and Marshall himself was the man who was supposed to deliver the commission. Even if you regard those decisions as extreme departures from judicial ethics, they underline the fact that the recusal rules are hardly ironclad precedents.

Next up we have Democrats hyperventilating over a 2016 comment by Kavanaugh — shortly after Justice Scalia’s death — that he would like to see the Court overturn Morrison v. Olson, the case upholding the independent-counsel statute, from which Scalia famously dissented alone, one of his most widely respected opinions:

Kavanaugh’s comment about overturning the 1988 ruling came in a forum at the American Enterprise Institute shortly after Justice Antonin Scalia’s death in 2016. In response to questions, Kavanaugh acknowledged there were high court rulings he would like to see overturned, but initially declined to identify any. Then, he continued: “Actually I’m going to say one, Morrison v. Olson. It’s been effectively overruled, but I would put the final nail in.”

This is not terribly surprising; Scalia’s arguments about how the independent counsel violated separation of powers (because the president could not fire him, despite performing a quintessential executive function) and could be harmful to the country have become conventional wisdom among conservative legal scholars and were effectively adopted by both parties in Congress when they let the independent-counsel law expire in 1999. Kavanaugh has written extensively on and off the bench on separation of powers, and he clearly shares Scalia’s philosophy on the question. But he has also made clear that a special counsel does not share the same constitutional flaws:

[I]n a dissenting opinion from January, Kavanaugh distinguished the old independent counsel law from the appointment of special counsels like Mueller.

“The independent counsel is, of course, distinct from the traditional special counsels who are appointed by the Attorney General for particular matters. Those special counsels ordinarily report to and are removable by the Attorney General or the Deputy Attorney General,” Kavanaugh wrote in a footnote to a 73-page dissenting opinion in a challenge to the Consumer Financial Protection Bureau.

This did not stop Democratic Senate leaders — some of whom, such as Dick Durbin, supported the death of the independent-counsel statute themselves back in 1999 — from making outlandish claims:

“We already know he believes the president shouldn’t be investigated while in office — that a president can’t be indicted while in office,” said Sen. Chuck Schumer, D-N.Y., Senate minority leader. “Clearly, Judge Kavanaugh’s judicial philosophy incorporates an almost monarchical view of executive power and accountability animated by a belief that our chief executive gets to play by a different set of rules.”

Schumer added: “Judge Kavanaugh, particularly after this interview, needs to recuse himself from anything having to do with the Mueller probe.”

Sen. Richard Blumenthal, D-Conn., said it is clear that Kavanaugh believes “the president is above the law.”

Booker even tweeted that Kavanaugh’s 2016 remarks (made, it should be noted, when Barack Obama was president) “rais[e] more grave questions about whether Kavanaugh would rule the current Special Counsel investigation unconstitutional.” Which is utter nonsense.

Finally, we have Democratic efforts to delay Kavanaugh by complaining that they need more documents from his time working for the George W. Bush White House, in Starr’s independent-counsel probe, and on the 2000 recount, an effort that the liberal Talking Points Memo describes as “Demands For Kavanaugh Paper Trail Becomes Flashpoint Of Dem Fight.” Former Barack Obama and Hillary Clinton adviser Ron Klain leads off the case for this with pure speculation: 

The vast majority of the documents were likely seen by a substantial number of people in the Bush White House when they were created and circulated. Some of these ex-officials may still have copies. Even if they don’t, they may know what Kavanaugh wrote about abortion, health care, civil rights and civil liberties. Bush-era officials could have easily shared these recollections with key people in the Trump White House during the process that led to Kavanaugh’s nomination.

Thus, when Kavanaugh testifies before the Judiciary Committee and says, inevitably, that he will offer “no hints, no winks, no nods” on potential rulings — that answer may not be true for everyone: The White House may indeed have ample “hints and nods,” by having seen (or been briefed on) Kavanaugh’s Bush-era writings. That knowledge should be in the possession of all senators, not just the White House. (Emphasis added.)

Then we get Klain’s actual agenda:

Red-state Democrats especially should press hard for the documents. These senators are caught between Trump-led pressure demanding support for the nomination and Democratic base pressure demanding opposition. They have blunted these forces by saying that will decide based on the record, not politics.

But how can they decide based on the record if the White House withholds Kavanaugh’s records? And if the White House will not produce them in full, what more common-sense reason is there to oppose Kavanaugh’s confirmation than “I’m not going to vote for someone for the Supreme Court unless I see the paper trail”? It’s an argument tailor-made for practical voters in “Show Me” Missouri and throughout the Midwest.

As Klain notes, past nominees such as Kagan have turned over documents from their executive-branch service — but then, Kagan was nominated fresh out of the Obama administration, presenting issues of what matters she might need to be recused from, and with no track record as a judge for the Senate to evaluate. Kavanaugh, by contrast, has been on the appellate bench for 12 years, and Klain is talking about documents going back more than two decades, some of them very obviously involving privileged legal work.

The motivation for these demands is transparent: to give political cover to red-state Democrats to vote on something other than Kavanaugh’s record and philosophy, and simply to provide an excuse to run out the clock. It’s a trick wearyingly familiar to lawyers: When you have no case, you make the case about the other guy not giving you enough documents, and you keep escalating your demands until you can request something he can’t find or won’t turn over.

That’s not an argument for the White House unreasonably stonewalling. But there is plenty of time to review a more-than-adequate record on this nomination (including the 110-page questionnaire Kavanaugh submitted this morning), and there will be plenty of information for senators to evaluate. Democratic desperation is showing.

Correction: The original version of this article referenced Rehnquist rather than Powell as a Nixon appointee who took part in US v Nixon. As noted, Rehnquist recused.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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