MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Kavanaugh's Testimony on Executive Power [Updated with Material from the Afternoon Session]

No great surprises so far. But some notable points nonetheless.

Judge Brett KavanaughJudge Brett Kavanaugh

It's no secret that much of the controversy around Judge Brett Kavanaugh's nomination to the Supreme Court revolves around his views on executive power. That is also the focus of most of my own reservations about him (I think his record on many other issues is quite good). A number of executive power issues came up in today's testimony before the Senate Judiciary Committee. There were no earth-shattering revelations. But Kavanaugh made some notable statements, nonetheless.

One of the most notable ambiguities in Kavanaugh's record is the question of what he really thinks about the validity of the United States v. Nixon, the famous 1974 decision where the Supreme Court ruled that President Richard Nixon was required to turn over tapes in response to a subpoena. Back in 1999, he suggested that the case may have been wrongly decided, but in a 2016 article, he called it one of "the greatest moments in American judicial history." In his testimony today, Kavanaugh reiterated his 2016 statement, and claimed that the 1999 comments had been misinterpreted, though he did not explain the exact nature of the misunderstanding. As I have noted previously, one possible way to reconcile the two statements is that the 1999 comments were meant to be hypothetical.

This testimony goes a long way towards suggesting that Kavanaugh really does support the outcome in Nixon. However, it's worth noting that he also avoided answering a straight up question from Sen. Dianne Feinstein asking whether Nixon was "rightly decided." This may well have been an attempt to follow judicial confirmation hearing etiquette under which nominees are not supposed to comment on the outcomes of particular cases or preview their positions on issues that might come up before the Court. But it seems to me that if it is permissible for a nominee to say that Decision X was "one of the greatest moments in American judicial history," it should also be permissible for him to say that it was correctly decided.In my view, it should at least be perfectly permissible to ask nominees about their views of past Supreme Court decisions that the nominee has previously opined about in public speeches and writings. And the nominee should be expected to answer such questions, barring some kind of unusual circumstance that would make it unethical to do so. What Kavanaugh said about Nixon was good. But it would have been better still if he could just simply say the decision was correct.

More explicitly, Kavanaugh refused to answer questions about whether a president must respond to subpoenas, and whether he can pardon himself, calling them "hypothetical" issues that might come up in future cases. This sort of answer is consistent with the practices of past nominees, though it can be frustrating for both senators and legal commentators.

In response to questions about a 2009 Minnesota Law Review article in which he argued that presidents should be shielded from criminal investigations, prosecution, and civil lawsuits while in office, Kavanaugh emphasized that these "were ideas for Congress to consider. They were not my constitutional views." In other words, he is not claiming that the Constitution in and of itself grants the president such immunity, merely that Congress should do so by legislation (despite Kavanaugh's suggestions, no such legislation has been enacted, and it is unlikely to pass anytime soon). I think this is an entirely reasonable distinction, and consistent with what Kavanaugh said in the article. Kavanaugh did not, however, definitively state that the Constitution does not grant such immunity. If those had been his beliefs, however, it would have been strange for him not to mention it in the article. Cynics might suggest that the omission was an effort to shield himself from criticism in the event of a future Supreme Court nomination. But if he were that super-careful about avoiding controversy, the obvious path would have been to avoiding writing an article about this subject at all.

So far, at least, the questioning has revealed very little about the other issues arising from Kavanaugh's past statements and opinions on executive power: his criticism of Chevron deference (which I support), his advocacy of the "unitary executive" theory (which I have reservations about), and his support for broad deference to wartime exercises of executive power (which I am also not a fan of).

NOTE: I wrote this post after the morning round of questions. I will update if there are any interesting revelations in the afternoon.

UPDATE: There were some interesting points made during the afternoon questioning. In an exchange with Democratic Sen. Chris Coons, Kavanaugh emphasized that there is an important distinction between the old independent counsel law upheld by the Supreme Court in Morrison v. Olson (a decision Kavanaugh has publicly criticized) and the current special counsel regulations, which Kavanaugh said are "consistent with our traditions" and constitutionally aceptable. This makes it unlikely that he would endorse prominent conservative legal scholar Steve Calabresi's argument that Mueller investigation (which operates under the latter set of rules) is unconstitutional. This is not an earth-shattering revelation, since it is consistent with Kavanaugh's previous writings on this subject. But it is notable nonetheless.

In a different part of the questioning, Kavanaugh noted that the executive has only "very limited power" to ignore congressional constraints on his authority in the national security realm, including in time of war. He specifically noted that congressional power extends to such matters as treatment of prisoners and interrogation methods. This is a clear rejection of John Yoo "torture memo"-style arguments to the effect that the president has very broad power to override congressional constraints in this field. It does not, however, allay my main concerns about his position on judicial deference to the executive on national security issues, which focus primarily on what happens when Congress does not try to constrain the president, but the courts must consider whether his conduct violates constitutional protections for individual rights.

Finally, in an interesting exchange with Republican Sen. Ben Sasse, Kavanaugh emphasized that Congress, not the president, has the power to initiate war - a very important principle that has come under serious stress in recent years. Unfortunately, however, he somewhat undercut that statement by noting that the principle, in his view, has almost never been violated in US history, because every "significant war," other than the Korean War has in fact had congressional authorization. This suggests that President Obama's wars against Libya and ISIS were not "significant" enough to require congressional assent, which is a troubling - and seriously misguided - conclusion, in my view. If large-scale conflicts intended to overthrow an enemy government (albeit one that lacks international recognition, in the case of ISIS) don't qualify as "significant" wars, that gives the president tremendous discretion to start major conflicts on his own. In fairness, however, the Supreme Court's power to stop the initiation of wars is very limited, at best. So Kavanaugh's mistake here has only modest significance.

There were also a number of other exchanges on executive power issues, none of which, in my judgment, were particularly edifying. But I will update this post further if I notice important material that I have so far overlooked.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • bernard11||

    it seems to me that if it is permissible for a nominee to say that Decision X was "one of the greatest moments in American judicial history," it should also be permissible for him to say that it was correctly decided.In my view, it should at least be perfectly permissible to ask nominees about their views of past Supreme Court decisions that the nominee has previously opined about in public speeches and writings. And the nominee should be expected to answer such questions, barring some kind of unusual circumstance that would make it unethical to do so. What Kavanaugh said about Nixon was good. But it would have been better still if he could just simply say the decision was correct.

    Absolutely right. It's ridiculous for nominees to refuse to comment on decisions at their hearings when they've done so publicly in the past. It's ridiculous for the Senators to put up with it.

    I would actually go further. I think nominees should be expected to answer questions about major past decisions, whether they have expressed views in public before or not. Pretending not to have an opinion is silly, and what exactly is the difference between expressing it in public or in private, to friends, say?

  • MatthewSlyfield||

    I don't think nominees should be expected to answer questions at all.

    The Senate didn't start holding public confirmation hearings until 1916. Before that, they didn't interview nominees at all.

    The public hearings didn't become routine for all nominees until 1946.

    The public hearings are nothing but political theater and a platform for those opposed to the nominee to smear/slander the nominee with impunity, and that's all the EVER have been.

    End the confirmation hearings.

  • Brett Bellmore||

    Before 1916, Supreme court justices weren't our black robed masters, removing major social questions from the democratic process on the slightest of pretexts.

    Can't usurp political power without expecting politics to enter into choosing you.

  • bernard11||

    The public hearings are nothing but political theater and a platform for those opposed to the nominee to smear/slander the nominee with impunity, and that's all the EVER have been.

    There is no shortage of platforms from which to smear a nominee (and I sure hope you are not referring to Bork).

    I agree that they are political theater. I happened to hear Hatch spend two or three minutes asking Kavanaugh whether he thought judges should change the meaning of statutes to suit their own preferences. Bad theater at that.

    But I think the way to make them meaningful is to take all the BS out and make the nominee answer the questions. There is a sort of pretense that Supreme Court cases are fundamentally no different than say, ordinary contract disputes. There the judge of course can say, and should say, he can't opine without seeing the contract and the other evidence and so on. But they are not the same thing.

  • MatthewSlyfield||


    and I sure hope you are not referring to Bork

    I'm not referring to Bork specifically. In my opinion, this criticism applies to every public confirmation hearing ever, all the way back to 1916.


    But I think the way to make them meaningful is to take all the BS out and make the nominee answer the questions.

    I don't think that would be half enough, to make them meaningful.

    1. You have to eliminate any speech making by individual committee members. Not even for 1 minute.
    2. Committee members do not get to ask questions individually. All questions must be agreed to by the fully committee and are asked by the chair.
    3. No testimony by anyone other than the nominee. Treat it like the job interview it is.

  • MatthewSlyfield||

    4. If you insist on allowing others to testify at the confirmation hearing, treat it as an adversarial process and the nominee and/or the nominee's attorney get's to cross examine those witnesses.

  • NToJ||

    I agree with MatthewSlyfield. The Senate Judiciary Committee should be able to evaluate the nominee without having a hearing. If they need questions, have them submit them in writing. It's just intended to benefit the committee members so they can get on camera and snag some votes, and does nothing to advance the public's interest in knowing whether the nominee is qualified. Qualifications have nothing to do with whether the nominee will or won't overturn Roe.

  • Sarcastr0||

    The Roberts hearing had some pretty awesome off-the-cuff legal reasoning to specific hypotheticals. I doubt that's the case these days.

  • Smooth Like a Rhapsody||

    Unsurprising. Roberts is a once-a-decade intellectual freak. Like Richard Epstein.

  • Angammus||

    Like Richard Epstein.

    Oh, shit, man. Thanks for that. I needed a laugh to pick me up.

  • Sarcastr0||

    Naw, smooth - any of these candidates could blow me away.

    The Senate is what has changed.

  • bernard11||

    There is a lot of posturing and bloviating, sure. But written questions don't allow followup on evasive or non-responsive answers.

    Maybe instead of overall time limits on the committee members there could be limits on the number of questions, and on the length of a question - 30 seconds or so.

    I really dislike Matthew's suggestion that all questions must be agreed to by the full committee. That's a recipe for a food fight. Still, maybe one person could be designated by each party to organize and ask all of that side's questions. That would reduce the speechifying and better organize the hearing.

  • MatthewSlyfield||

    There is nothing other than posturing and bloviating.

  • NToJ||

    "But written questions don't allow followup on evasive or non-responsive answers."

    You just write follow-up questions. And non-responsive answers speak for themselves as well in writing as they do in person.

  • Milesthatsme||

    "[I]f he were that super-careful about avoiding controversy, the obvious path would have been to avoiding writing an article about this subject at all"

    I think this hits the nail on the head (although I have not followed the confirmations too closely). If you have written on a subject, judicially or (especially) extra-judicially, you should have effectively waived your right to object to discussing or explaining it. If one objects to doing so because it may come before the court, that's too bad, you've already made that bed and you might need to recuse yourself from any such case. Of course, there will always be the caveat that an outcome or precedent might need to be considered in light of fresh evidence or argument in a case (a position originalists will presumably have open to them less often). But if one is going to have public confirmation, one can scarcely say, "don't attempt to judge my suitability by the views I have expressed or can be expected to express".

  • MonitorsMost||

    And he wrote about it in 2009. If he could predict Trump and his investigation troubles all the way back in 2009, then Kavanaugh likely has a copy of Gray's Politics Alamanac that he acquired from his future self who stole a time machine to travel back and give it to him.

  • rsteinmetz||

    I watched part of the hearing this morning and saw the part about subpoena, the question was a general one about any subpoena, and even then any usual subject of a subpoena would have the ability to challenge the subpoena on various grounds. My understanding of his answer about Nixon was that it only applied to a subpoena in an ongoing criminal case.

    Watching the questioning I was struck by how many took a specific idea then expanded the question to a general proposition like the subpoena question or the attempt to implicate him somehow in improperly obtained documents, of the enhanced interrogation. I was impressed that he handled the questioning calmly, rather that responding with sharp retorts.

  • MonitorsMost||

    The Nixon case was a pretty interesting part of the book The Brethern. Amazing the opinion came together as unanimous because the only thing they could agree on was Nixon had to give he tapes.

  • MonitorsMost||

    Agree on Libya. Some of the conflict against ISIS falls under the Iraq aumf, parts of which are directed and the Hussein government specifically and other pets at terrorist activity with Iraq.

    Unfortunately, seems like a common viewpoint. William O Douglas was the only one who thought differently and that was largely a wrong-process, right-result sort of thing.

  • creefer||

    Is it really fair to ask a judge at all how he would find in a case he has not heard? There has been no plaintiff, no defense, no case history presented, no arguments, and no time for complete evaluation. It is the problem with the hypothetical...it has not details, which are often highly important.

    Let me ask you, should someone who kills another go to jail. Answer now. You must! No questions allowed!

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online