If President Donald Trump wished to replace retired Supreme Court justice Anthony Kennedy with a successor likely to back the White House in any Russia investigation showdown with Special Counsel Robert Mueller, or, more broadly, to legitimate Trump’s penchant for sabotaging laws he disfavors, he could not have done better than nominate Brett Kavanaugh.
Senate Minority Leader Chuck Schumer has stated that his caucus’s campaign to contest Kavanaugh’s nomination will target two issues—the threat to authorize states to ban abortion by overruling Roe v. Wade, and the threat to gut health insurance or even invalidate the Affordable Care Act. Both issue areas are priority concerns for progressive constituencies, and progressive views on them command considerable support among the electorate. But Democrats and progressives should not neglect the nominee’s absolutist vision of presidential power. Indeed, they should lead with that punch, to initially frame the debate. Here’s why, and how:
Spotlighting Kavanaugh’s executive authority absolutism will force Kavanaugh and his backers onto the defensive, establish that progressive and Democratic critics are focused on solid evidence in the nominee’s record, and create a credible foundation for broader attacks on larger targets, including the threat his confirmation will pose to ACA-enabled health-care access. Moreover, featuring Kavanaugh’s hands-off-POTUS mantra will enable critics to broaden the scope of the confirmation debate, training attention on Trump’s accelerating campaign to undermine the ACA, and credibly connect the dots between such threats and the prospect of Kavanaugh’s confirmation.
If the president breaks the law by sabotaging the ACA, the program’s intended beneficiaries generally have only one recourse—getting a hearing from a fair-minded judge, empowered to order a wayward administration to reverse course. So the question becomes whether Kavanaugh would hold this administration to account, or look the other way.
By thus expanding the confirmation debate, Democrats and progressives could bolster their line of attack with a potent constitutional claim—based squarely on the Constitution as written. The Constitution mandates that the President “shall take care that the Laws be faithfully executed.” How would nominee Kavanaugh square that unequivocal command with this administration’s repeatedly declared policy of interpreting and implementing the ACA in ways expressly designed to subvert the law and make it fail? And how would Justice Kavanaugh view the judiciary’s responsibility to address—and redress—such a strategy of systematic sabotage?
Presidential power enthusiasts, Kavanaugh very much among them, cite the so-called take care clause as proof that the framers intended the president’s authority over implementing laws, especially criminal laws, to be exclusive and virtually unlimited, rarely to be interfered with by judges. In effect, they read the provision as if it said the president’s mandate was simply “to execute the laws,” without the “faithfully” qualifier. But, of course that is not what the framers wrote. Moreover, the records of the 1787 constitutional convention show that several drafts were considered and discarded, including versions referring only to a bare, unqualified duty to “execute the laws,” before the drafters came up with the final requirement that the president take care to execute laws “faithfully.” No goal was more important to the framers and their constituents than to ensure that the American president did not have British King George III’s claimed power to “suspend” laws passed by the legislature—the very power that President Trump is in effect appropriating to neutralize the ACA.
By pushing Kavanaugh and his defenders to address the connection between the president’s “faithful execution” responsibility and the Trump administration’s unabashed sabotage campaign, progressives will provide a specific, widely plausible example of how Kavanaugh’s ascent to the Court could threaten beneficiaries of the ACA. Beyond that, highlighting his and his allies’ erasure of “faithful” from the take care clause belies their claimed fealty to text “as written”—exposing their actual “never mind the text, if it gets in the way of a contradictory political agenda” ethos. And that hypocrisy will be on display in a highly visible setting, over a broadly accessible issue.
Kavanaugh portrays his approach as accommodating executive accountability, not putting presidents “above the law.”. He has argued that, while in office, presidents should be spared—by statute—the potentially “burdensome” distractions of personal exposure to civil or criminal litigation and investigation, and has proposed a temporary respite, lasting only to the conclusion of their presidency. As for a “bad behaving or law-breaking President,” his answer is that the Constitution provides an appropriate check while in office—impeachment.
In response, progressives should stress, first, that Kavanaugh’s proposal of a statutory remedy—that Congress must enact such a law—acknowledges that existing law provides no such presidential immunity, temporary or otherwise. Hence, he should be pressed to affirm that, as a justice, he and his colleagues would have no power on their own to confer such a respite on this or any other president.
More important, progressive advocates and senators should out, as a naïve—or willful—delusion, Kavanaugh’s portrayal of impeachment as a stand-alone alternative to a contemporaneous, independent criminal investigation of a systematically lawless administration. From Richard Nixon’s Watergate debacle to Bill Clinton’s impeachment exercise to the current Mueller investigation into Russian interference in the 2016 election, the impeachment process has proven dependent on a prior, thorough investigation by a well-staffed, significantly independent special counsel or prosecutor. Without such a criminal investigation, impeachment can’t work and won’t happen. Accordingly, it is entirely fair to say that, in practice, Kavanaugh’s “solution” would put the president above the law, and leave the nation defenseless to check or prevent a presidential coup to subvert the constitutional order.
If Kavanaugh’s scheme had been in place in the early 1970s, the Supreme Court in 1974 would not have had the opportunity to issue its unanimous order directing the Nixon White House to turn over the Watergate tapes, which, once the tapes became public, led to an immediate, bipartisan, unanimous vote by the House Judiciary Committee to recommend that the House impeach him, which in turn precipitated his resignation.
Kavanaugh goes so far as to say that the nation would have been better served if Kenneth Starr’s Independent Counsel investigation of President Clinton, in which Kavanagh himself played a key role, had never occurred, and Paula Jones’s lawsuit against Bill Clinton had been put on hold till after his term in office. His point could make sense with respect to purely personal civil matters like that involved in the Jones case, especially if they similarly occurred before an individual president took office. Not so, however, for criminal allegations, at least not credible allegations of systematic law-breaking, like those against Nixon and his Watergate co-conspirators, or the current charges against multiple Trump associates, to which some have already pled guilty.
Before as well as during his confirmation hearings, Kavanaugh should be thoroughly grilled on his view of the resolution of the Watergate affair—specifically, on how his written analyses and proposals appear incompatible with the Cox-Jaworski investigations and Supreme Court decisions arising from Watergate. Those decisions established the basic constitutional framework that legitimated the investigation by Watergate special prosecutors Archibald Cox and Leon Jaworski, the Whitewater investigation of President Clinton by Kenneth Starr, and the current Russia investigation of President Trump by Robert Mueller.
Senators have already made clear that Kavanaugh will be questioned on his view of Roe v. Wade and decisions affecting the validity and viability of the ACA. To that list, senators should certainly add United States v. Nixon, the 1974 decision in which a unanimous Court (including three Nixon appointees) upheld the authority of Jaworski and Cox to investigate the president, and ordered the White House to turn over the tapes Nixon had secretly recorded. They should question him on Nixon v. Administrator of General Services, the 1977 decision which upheld the post-Watergate statute asserting federal ownership of his White House records. They should home in particularly on Morrison v. Olson, which upheld, in 1988, the Independent Counsel Act enacted in the aftermath of the Watergate affair, over Justice Antonin Scalia’s lone dissent. The two Nixon cases established, and Morrison confirmed, the holistic principle governing the Justice Department regulation authorizing the Cox-Jaworski Watergate investigation, the Independent Counsel statute authorizing the investigation at issue in the Morrison case, and the Justice Department regulation authorizing the current Russia investigation. Kavanaugh should be pressed—hard—about his view of those decisions, and the principle they represent—namely, that conferring a reasonable degree of independence from presidential control on Justice Department-appointed special prosecutors does not violate the Constitution, provided the arrangement does not “disrupt the proper balance between the [three] branches,” and does not “prevent the Executive Branch from accomplishing its constitutionally assigned functions.”
In his articles and opinions, Kavanaugh strongly suggests his approval of Justice Scalia’s Morrison dissent, in which Scalia castigated the Independent Counsel law and argued that virtually any attempt to insulate a special prosecutor from direct, untrammeled, and absolute presidential control would be unconstitutional. Scalia’s approach could call into question the regulation authorizing Robert Mueller’s investigation, and the bill currently pending before the Senate that would codify and strengthen the independence guarantees of the Department’s regulation. Kavanaugh would have no basis for refusing to explain what he meant by his public solicitude for Scalia’s president-as-czar approach.
In sum, by stressing Kavanaugh’s love affair with presidential power, Democrats can highlight the threat his nomination poses to the ACA and other targets of Trump’s ire, as well as to Mueller’s independent investigation and any notion of meaningful presidential accountability before the law.