On Monday President Trump nominated Brett Kavanaugh, a judge on the United States Court of Appeals for the District of Columbia Circuit, to replace retiring Justice Anthony Kennedy on the Supreme Court. In the coming weeks, the Senate will undertake its constitutional duty to vet Judge Kavanaugh on issues like health care and abortion. But the Senate must also explore a question central to evaluating the judge’s commitment to the rule of law: Does he have the requisite independence from President Trump to serve as a check on his abuses of power?
This issue is particularly important given repeated claims by the president’s attorneys that Mr. Trump is essentially above the law — that he can even refuse a subpoena to testify. Given the looming Mueller investigation, these weighty, knotty constitutional questions may soon come before the court.
When it comes to these questions, Judge Kavanaugh is not a blank slate. He worked for Ken Starr, the independent counsel who aggressively investigated President Bill Clinton. But Judge Kavanaugh later adopted views that are outside the mainstream in their deference to the executive.
In a 2009 law review article, Judge Kavanaugh argued that a sitting president should be able to defer civil suits and criminal prosecutions until after he leaves office and should be excused from having to answer depositions or questions during his term. He went so far as to advocate that Congress “consider a law exempting a president — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
It is hard to imagine that these extreme views weren’t part of Judge Kavanaugh’s appeal to President Trump, a man who is a defendant in several civil suits and the subject of at least one criminal investigation. According to media reports, the White House has looked at the judge’s views on indicting a sitting president.
Nor are these mere academic musings. During his service on the appellate court, Judge Kavanaugh has written opinions reflecting an expansive view of presidential power, and on several occasions he has expressed concern about executive branch agencies that are insulated from direct control by the president.
What does this tell us about how he would view the ongoing investigation by Robert Mueller, the special counsel? There are important and — at least under current law — decisive differences between the independence enjoyed by the agencies at issue in those cases and that of the special counsel, who reports directly to a political appointee serving at the pleasure of the president. But the logic employed in Judge Kavanaugh’s opinions could easily be extended to argue that the president should enjoy the power to control the course of all criminal investigations — including those into his own alleged misconduct.
Judge Kavanaugh’s approach to executive power could, moreover, affect other aspects of the federal investigations relating to Mr. Trump. One of the most important is whether a president can pardon himself. In our view, the idea that a president can grant himself a pardon is anathema to our constitutional structure. One need not be a judge to see how antithetical this is to our Constitution: 85 percent of Americans (including 75 percent of Republicans) say that it is unacceptable for a president to pardon himself of a crime. Given Judge Kavanaugh’s position on executive authority, it is unclear where he would stand. Senators must find out.
Judge Kavanaugh’s writings and opinions also suggest he will be receptive to the bizarre argument that the president cannot obstruct justice by firing Department of Justice officials or taking other actions pursuant to his constitutional authority. There are multiple flaws in this argument, chief among them that both the Constitution and hundreds of years of precedent support the validity of congressional restrictions on the exercise of executive power. Will Judge Kavanaugh stand with the rule of law or allow the president to interfere with our system of justice with impunity?
Then there is the legality of Mr. Mueller’s appointment, which Mr. Trump’s former campaign chairman, Paul Manafort, has already tested in the two federal courts where he is facing charges. Both the District of Columbia and Virginia federal district courts rejected motions by Mr. Manafort to dismiss his criminal indictments, and the District of Columbia court rejected a collateral civil suit that he filed there challenging Mr. Mueller’s prosecution of the case. The reasoning behind these decisions is straightforward: Congress has given the attorney general broad authority to delegate power to subordinate officials. We cannot help wondering whether Judge Kavanaugh will view this delegation as an intrusion on presidential direct removal authority and reject the commonsense holdings of these lower courts should he have the chance.
The usual practice at Supreme Court confirmation hearings is for the nominee to refuse to answer questions about issues that may come before him or her. But we have never had a nominee who was chosen by a president identified as the subject of a criminal inquiry — one that already has resulted in serious charges against top aides and could implicate the president himself. We need to know the judge’s views on these issues so we can have an honest and open national discussion, and the Senate make a fully informed decision.
If he refuses to share them, Judge Kavanaugh must agree that if he is confirmed he will recuse himself from any decisions concerning the special counsel investigation and the related exercise of presidential powers —or his confirmation must be delayed until after the investigations are resolved. If the Senate confirms him without resolving these questions, we face the prospect of a new associate justice who poses a grave danger to the legitimacy of the court — and our democratic system of checks and balances.