The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is it appropriate for the Senate to consider a nomination for a lifetime appointment to the federal bench when the nominating President is under investigation for potentially impeachable offenses? Those who oppose Brett Kavanaugh's confirmation to the Supreme Court say "no," while those who support his confirmation say "of course." Given the hyper-partisan nature of the current confirmation process, that is about what we would expect.
As a practical matter, the question comes down to who has the votes. Let's face it: Neither party is constrained by high principle when it comes to fighting over judicial nominations. It's become simply a matter of who has the votes.
As a matter of history and tradition, on the other hand, I thought it would be interesting to look at how the Senate handled judicial nominations when Presidents were under investigation or haunted by the specter of impeachment.
What I found suggests that the Senate does not appear to have altered its handling of nominations just because a President was under investigation, even when being investigated for potentially impeachable offenses and even when being impeached.
President Andrew Johnson was the first President to be impeached, but his experience may not be that instructive. He only made ten judicial appointments during his entire time in office, but one of them did occur in the midst of the impeachment controversy.
The House passed an impeachment resolution against President Johnson on February 24, 1868. Formal articles of impeachment were adopted a week later. The impeachment trial in the Senate opened in March and concluded in May. Interestingly enough, one of Johnson's judicial nominees was confirmed in the midst of this process, on April 9, 1868.
Watergate is likely a more appropriate comparison to today than anything from Johnson's term. In May, 1973, the Senate opens its Watergate hearings and Attorney General Elliot Richardson appoints Archibald Cox as a special prosecutor to investigate connections between the White House, the Nixon relection campaign, and the Watergate break-in. Cox is later fired as part of the "Saturday Night Massacre" on October 20. The following spring, the House initiates impeachment proceedings, leading to passage of three articles of impeachment at the end of July. Nixon resigns on August 8. (Note: A handful of Representatives introduced impeachment resolutions in 1972, but these did not go anywhere.)
President Nixon had no opportunity to name a Supreme Court justice during this period. His last Supreme Court nomination was made in 1971, and Justice William Douglas would not retire until suffering a stroke in December 1974. He did, however, continue to make lower court nominations that were confirmed by the Senate after the Cox appointment. Most of these were in 1973, but there were still confirmations in 1974, after the House proceedings had begun, including one district court confirmation on August 8, the same day Nixon announced his resignation.
Investigations into President Reagan's scandals appear to have had even less of an effect on judicial confirmations. Here the most relevant scandal would be Iran-Contra. Independent Counsel Lawrence Walsh is appointed to investigate the Iran-Contral scandal on December 19, 1986. This investigation continues through 1993. In addition, in 1987, Rep. Henry Gonzalez introduces articles of impeachment against President Reagan, prompting congressional hearings that summer.
Despite the Iran-Contra controversy, the Senate continued to consider and vote on President Reagan's judicial nominees, including the Supreme Court. Judge Bork's confirmation hearings are held over the summer in 1987. The Senate rejects the Bork nomination in October, though not due to Iran-Contra. Justice Anthony Kennedy is confirmed to the Court that February.
Lower court confirmations continued apace in the wake of Lawrence Walsh's appointment. The Senate confirmed sixteen circuit court nominees and over sixty district cour nominees between Walsh's appointment and the end of Reagan's term. Some Reagan nominations are stalled in 1988, including Judith Hope and Pam Rymer, for the U.S. Courts of Appeals for the D.C. and Ninth Circuits, respectively, but again Iran-Contra is not the cause. Rather, as was widely reported at the time, Senate Democrats sought to stall those nominations in the hope of holding those seats open for a newly elected Democratic President.
The Whitewater investigation, which sent a former governor to jail and resulted in the resignation of Associate Attorney General Webster Hubbell, did not seem to affect the Senate's consideration of judicial nominees either.
In January 1994, Attorney General Janet Reno named U.S. attorney Robert Fiske as a special counsel to investigate Whitewater, and related matters, including the any possible connection to Vince Foster's suicide. In August 1994, after Congress re-enacts the federal Independent Counsel statute, Kenneth Starr is appointed by a three-judge panel to replace Fiske.
Meanwhile, President Clinton nominates Stephen Breyer to the U.S. Supreme Court in May 1994. The Senate confirms Breyer as an Associate Justice in July 1994. The appointment of a special counsel does not appear to slow lower court confirmations either, as the Senate confirms ten circuit court and several dozen district court nominees between January and August 1994.
In September 1998, IC Starr submits his report to Congress, starting the process that would eventually lead to President Clinton's impeachment. This same month, AG Reno announces a 90-day inquiry to determine whether there should be an independent counsel referral to investigate Clinton's alleged involvement in developing an issue ad campaign in violation of applicable campaign finance laws.
Despite the submission of the Starr Report, and impending House impeachment proceedings, the Senate continues to confirm President Clinton's judicial nominees. Between the report's submission and the impeachment proceedings, the Senate confirms four circuit court nominees and twenty-two district court nominees.
As this history shows, thus far in our nation's history, the Senate has continued to consider and confirm a President's judicial nominees even when the President was under investigation or otherwise at risk of impeachment. Of course, one could argue that the present situation is sufficiently distinct as to justify a different response by the Senate. After all, most of the history concerns lower courts, not the Supreme Court. Whether these distinctions are meaningful is a matter I leave for the reader to judge.