Kavanaugh wasn’t very convincing when discussing his shifting views of presidential power.
Photo: Matt McClain/The Washington Post/Getty Images
In a little investigation that went unnoticed amid Wednesday’s chaos, internet sleuth Ashley Feinberg discovered that Brett Kavanaugh may have been actively campaigning for Donald Trump’s attention since at least the summer of 2016. Bucking the advice of the U.S. Marshals Service, which is charged with protecting the federal judiciary, he became the only federal appeals judge in the nation to put a picture of himself on his government-provided webpage. And with time his biography became longer and more elaborate than those of all his well-learned colleagues, who played by the rules and stuck to modesty.
Kavanaugh, it’s fair to say, has been playing for the cameras all his life, popping up in all the right controversies since the Bill Clinton years. And now that his carefully manicured image and career in public service are in the limelight of a Senate confirmation hearing — this time for a seat on the Supreme Court — the onus is on him, and only him, to deliver the goods. Kavanaugh must distance himself as much as possible from the president who offered him the job, his scandals, and an investigation he despises so much that he has claimed he has the power to shut it down.
That’s not a walk in the park for Kavanaugh, and that’s partly his fault: Since his days as assistant prosecutor for Kenneth Starr through his years working as a lawyer and staff secretary in the George W. Bush White House, his experience in government has been in service of power. Or rather, either in service of, or working against, the partisan interests of the president who happens to be in power.
“After September 11, I thought very deeply about the presidency,” Kavanaugh said on Wednesday, as he reflected on the president’s place in our constitutional order, now in disarray thanks to a chief executive who never much cared for it. He suggested his writings on why the president should not be subjected to distracting investigations while in office were merely “ideas for Congress to consider,” not “my constitutional views.”
But fealty to Republican causes at all costs explains much of Kavanaugh’s hefty record, both judicial and political, part of which still remains a big mystery. It also explains why on the second day of his confirmation hearings — and first full day of questioning by senators — Kavanaugh wasn’t exactly convincing when asked to expound on his shifting views about the acceptable limits on presidential power.
There’s no better case with which to examine the contours of those views than the seminal United States v. Nixon, the case that effectively ended Richard Nixon’s presidency, and which came up early in the hearing. The precedent matters in the event Robert Mueller needs to compel Trump to talk to him — a “hypothetical” that Kavanaugh simply refused to engage. But the decision also matters because of what it reveals about the nominee, who in the 1990s suggested that it may have been wrongly decided, only to declare post-Bush — and at Wednesday’s session — that the ruling marked one of the “greatest moments in Supreme Court history.”
Which one is it? No one knows. All Kavanaugh would allow in committee is that that was his view in 1998. But if one had to guess, based on the available evidence, what his view is today, Kavanaugh would likely pick the position that prizes the presidency and its prerogatives over anything that may distract its occupant from needless subpoenas, investigations, and civil lawsuits while in office. Anything less, he once wrote, “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.” If an anonymous op-ed can so obsess a president, maybe we’re already there.
Such is Kavanaugh’s commitment to the presidents who have lent him a hand. He had nothing to offer Democrats who asked him to hit the pause button on his own nomination, just so the Senate Judiciary Committee could get a better sense of the hundreds of thousands of documents still outstanding from his prior White House service, which the Trump administration is working overtime to keep secret. Kavanaugh wouldn’t budge; it’s not his job to take a position on records that rightfully belong to the president, he told Illinois’s Dick Durbin, let alone work out any interparty document-fight inside a co-equal branch of government.
Pressing him hard on an 80-year-old precedent that has protected the autonomy and authority of independent agencies, yet another area where Kavanaugh is a presidential extremist, Delaware’s Chris Coons led an effective round but couldn’t get the nominee to say whether the case was correctly decided. Not that it matters. Earlier this year, in a dissenting opinion that all but called for the firing of the director of the Consumer Financial Protection Bureau, Kavanaugh left no doubt about who’s boss: The president, in his constitutional vision, can’t be constrained from firing anybody he wants.
The theory of a “unitary executive,” the widely held conservative belief that the president is sovereign over and in charge of all corners of the executive branch, is at the core of much of Kavanaugh’s judicial output. During his time with Nebraska’s Ben Sasse, a friendly senator and longtime critic of the CFPB, Kavanaugh let himself go and conceded that an agency with its mandate is “a branch unto itself” — too powerful and accountable to no one. When his own court considered the bureau’s constitutionality, Kavanaugh was a lone voice crying out in the wilderness: The full D.C. Circuit didn’t quite agree with him that the Senate-confirmed agency director, who serves for five years, can be dismissed for whatever reason the president deems appropriate, other legal constraints be damned.
Wednesday’s surprises didn’t end there. It took outgoing Arizona senator Jeff Flake, who has made a name for himself resisting Trump with thoughts and prayers, to actually hold Kavanaugh’s feet to the fire in a way very few expected. Reflecting explicitly on Trump’s most outlandish tweet to date — his Labor Day weekend suggestion that his attorney general should prosecute Trump enemies rather than allies — Flake caught the judge flat-footed. Can the president do that? Kavanaugh said he couldn’t comment on “current events.” But then Flake reformulated the question in more general terms. Nothing. Flake went for a third time, with even more generality than before. Still nothing of substance.
None of this prepared Kavanaugh for the most enthralling, Mueller-related moment of the day’s events. Nearly 12 hours into the marathon proceedings, California’s Kamala Harris, donning her former-prosecutor hat, cross-examined the nominee for nearly eight minutes about his contacts with the law firm of Marc Kasowitz, one of Trump’s longtime personal lawyers. Did he talk to anyone at the firm about the Russia investigation or its implications? Kavanaugh wouldn’t give a direct answer, saying he wasn’t sure exactly who works at that firm. “I think you’re thinking of someone and you don’t want to tell us,” Harris charged at one point during the lengthy exchange, which was as good a primetime highlight as you’ll ever catch on C-Span.
It’s not clear what Harris was getting at, or what it might mean for the Mueller probe. But gleaning insights from Kavanaugh’s earlier back-and-forth with Flake, there’s little doubt that he would much rather leave it up to Congress to do something about a president who insists on undermining the rule of law and those who enforce it. “That hypothetical was tested, I suppose, during September 1973, if I have my month right,” the judge said tentatively, alluding to Nixon’s Saturday Night Massacre, which actually happened in October. “And the system held.”
In other words: Don’t count on me or any future ruling from me to protect Mueller. If the president wants to fire him, let him. And let the chips fall where they may.