Supreme Court nominee Brett Kavanaugh began the second day of his confirmation hearing — and the first day where he did more than read from a prepared statement — by suggesting that Brett Kavanaugh was wrong to criticize a famous Supreme Court decision limiting presidential power.
In United States v. Nixon, a unanimous Supreme Court led by Nixon-appointed Chief Justice Warren Burger, held that President Richard Nixon must turn over taped recordings and other documented sought by Watergate special prosecutor Leon Jaworski. Nixon resigned the presidency less than three weeks after this decision.
“To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes,” Burger warned, could “upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts.”
Nevertheless, speaking at a legal round table in 1999, Kavanaugh criticized this unanimous decision. “Maybe Nixon was wrongly decided — heresy though it is to say so,” the future judge said at the time. “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.”
“That was a huge step with implications to this day that most people do not appreciate sufficiently,” according to Kavanaugh in 1999. “Maybe the tension of the time led to an erroneous decision.”
In the 1990s, Kavanaugh was a top lieutenant to Kenneth Starr, the independent prosecutor who hounded President Bill Clinton for much of Clinton’s time in office. Sometime after leaving Starr’s investigation into Clinton, however, Kavanaugh took a starkly different view of the presidency. The future judge served as President George W. Bush’s White House staff secretary from June of 2003 to May of 2006, and he cited the 9/11 attack in his confirmation hearing as a moment that caused him to rethink his view of presidential power.
Kavanaugh emerged from that experience with a fresh take on the matter, which he laid out in a 2009 law review article in which he suggested that the president should be given immunity from investigation.
“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote in that article. He proposed “a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office,” as well as a new law immunizing sitting presidents from “criminal investigations and prosecutions of the President.”
Now that Kavanaugh is up for a promotion, however — and now that he is facing criticism for his apparent affinity for presidential immunity — the nominee appears inclined to take a different tact.
In response to Grassley's first question, Kavanaugh cites United States vs. Nixon as "one of the greatest moments in American judicial history." 👀 pic.twitter.com/EZD0dYMyH9
— Aaron Rupar (@atrupar) September 5, 2018
In response to the very first question in his Supreme Court confirmation hearing, Kavanaugh told Sen. Chuck Grassley (R-IA) that Nixon was “one of the greatest moments in American judicial history,” and cited it as an example of the judiciary showing independence from the other two branches of government.
In response to follow-up questions by Sen. Dianne Feinstein (D-CA), Kavanaugh claimed that his 1999 comments were “not in context.”
Kavanaugh’s views on Nixon, for what it is worth, appear to be in constant flux. In 1998, for example, Kavanaugh suggested that “as a policy matter,” Nixon “reflects the proper balance of the President’s need for confidentiality and the government’s interest in obtaining all relevant evidence for criminal proceedings.”