The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Executive Power

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 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.