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By Randall Young
Earlier this month, President Trump selected Judge Brett M. Kavanaugh to replace Justice Anthony Kennedy, setting the stage for what will no doubt be a contentious nomination contest. To most, Kavanaugh’s selection as someone from the conservative Heritage Foundation’s shortlist is not surprising, but his vocal support for an Executive Branch with as few restrictions as possible makes him a more concerning decision than most.
Kavanaugh’s history as an attorney and judge yields comparatively little in the way of predicting how he will ultimately stand on many key issues. A Yale Law graduate, Judge Kavanaugh clerked for Anthony Kennedy, and in 1994 served as Associate Independent Counsel for the Whitewater Investigation against President Clinton.
Not long after, Kavanaugh joined President Bush as associate counsel from 2001 to 2003 and served as senior associate counsel to the President in 2003 on. Most of that time from 2003 to 2006 was spent waiting on the Senate to confirm his nomination to the D.C. Court of Appeals—the most influential appeals courts in the United States, and an incubator for future Supreme Court nominees.
In his time as a judge, Kavanaugh has established himself as a candidate seemingly tailor-made for the Trump presidency. While he has previously stated support for the rule of Roe v. Wade, on the basis that it has been decided and affirmed by past courts, he also joined in an opinion holding that the Office of Refugee Resettlement could prevent unaccompanied minors from having an abortion. It is, thus, entirely possible that Kavanaugh could fashion limits on a woman’s access to birth control, just short of overturning Roe.
Additionally, the long-suffering Consumer Financial Protection Bureau (CFPB) would likely fare no better with Kavanaugh on the Court, having held not only that members of the Bureau could challenge the constitutionality of its structure, but that its structure was in fact unconstitutional.
The result of this decision would have meant that the head of an agency designed from the beginning to be as independent as possible from politics could be removed by the President, were it not for an en banc rehearing that reversed that decision and upheld the constitutionality of the CFPB’s structure.
On a number of other key issues, Kavanaugh has either maintained an ambiguous voting record or has not offered enough in terms of an individual opinion for the public to evaluate. Seeing how increasingly tight-lipped Supreme Court nominees have become, it’s likely that very little new information will come to light at the confirmation hearings.
Disturbingly, one of the few areas where Kavanaugh has been the most vocal is an area that no doubt has particular appeal to the man who nominated him. Despite having been on the team that investigated President Clinton, Kavanaugh’s time under the Bush Administration apparently altered his view of the Executive Branch. He later expressed this view in an article for the Minnesota Law Review that “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
It is in this article that Kavanaugh’s apparently newfound belief that the president should be shielded from most forms of civil and criminal liability is particularly disturbing, especially when one considers Trump’s numerous civil suits and Special Counsel Robert Mueller’s ongoing investigation of Russian interference in the 2016 elections.
In the article, Kavanaugh begins with the basic idea made by the Supreme Court in Clinton v. Jones that presidents are not constitutionally entitled to defer civil suits against them, going on to note that the Court appeared open to the possibility that Congress may protect a president from having to litigate while in office with appropriate legislation. It is important that this point was not essential to the decision, and most would regard this statement as dicta.
In fact, the congressional authorizations mentioned by the Court in Clinton v. Jones are animated by very specific rationales (which need not be discussed at length here), and it is not clear what meaningful rationale would permit Congress to give a sitting president a complete deferral from civil ligation for the duration of his presidency. It is difficult to come up with a good reason why someone who sued President Trump in 2016 would need to wait until 2020, or perhaps longer, to have their day in court.
Most alarmingly, Kavanaugh would see that this protection extend beyond civil suits and into criminal investigations. In the article, Kavanaugh writes that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” There can be little doubt that having a jurist who believes that the president could—and should—be made immune from questioning by criminal prosecutors appeals to Trump, who continues to lash out against Special Counsel Mueller’s investigation. Indeed, the reasoning Kavanaugh supplies to support this argument dovetails nicely with Trump’s attacks on the Mueller investigation as a politically-motivated witch hunt: “Criminal investigations targeted at or revolving around a President are inevitably politicized… [a]s I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated.’”
In Kavanaugh’s opinion not only should Trump be free from an indictment by Mueller, if one were ever issued, but he should even be free to avoid questioning. Seeing that many close to Trump are currently the subject of criminal prosecution, having a president that could avoid questioning might embolden these defendants and obstruct the investigations.
What is most concerning about Kavanaugh’s views on the Executive is the fact that he did not provide this framework specifically for Donald Trump; he has long been geared toward providing ideological, jurisprudential, support for those defending Trump. To the argument that no one is above the law in our system of government, Kavanaugh flippantly responds that “it is not ultimately a persuasive criticism of these suggestions.”
His argument that such protections would only defer litigation ignores the maxim that justice deferred is justice denied. This is true enough in the case of those who might be forced to wait up to eight years to see a courtroom in a civil suit. And this is especially true where a Special Counsel continues to unpack the manifold illegalities of Russian interference in favor of the President, all while the next presidential election looms not far off the horizon.
Both Democrats and Republicans should be concerned that such a ready and willing accomplice to placing the Presidency above the law has been chosen.
Randall Young is a recent graduate of the University of Tulsa College of Law, having served as Articles Research Editor for the “Tulsa Law Review” and Chapter President of the Native American Law Student Association. Randall’s latest article, Confronting Crawford: Judicial Historiography and the Sixth Amendment, was published in the “Autumn 2017 issue of the Review”.