Judge Brett Kavanaugh stated during his Supreme Court confirmation hearing on Wednesday that “no one is above the law” and United States v. Nixon is “one of the greatest moments in American judicial history.”
Kavanaugh’s comments came in response to Senate Judiciary Committee chairman Sen. Chuck Grassley, R-Iowa, questioning the nominee about what makes a good federal judge.
“I think the first quality of a good judge in our constitutional system is independence,” Kavanaugh replied. “Independence comes directly from Article III of the Constitution.”
“(In) the great moments in American judicial history, the judges had backbone and independence,” he explained.
He cited Youngstown Sheet & Tube Co. v. Sawyer (1952), when the Supreme Court ruled President Harry Truman could not order the government to take over steel facilities in the midst of a labor dispute in order to ensure production continued during the Korean War.
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Kavanaugh also pointed to Brown v. Board of Education (1954), which ruled local governments could not establish separate schools for black and white students.
He then said, “You think about United States versus Nixon, which I’ve identified as one of the greatest moments in American judicial history, where Chief Justice (Warren) Burger who had been appointed by President (Richard) Nixon brought the court together in a unanimous decision to order President Nixon in a response to a criminal trial subpoenaed to disclose information.”
The 1974 case arose from the Watergate scandal, when Republican operatives broke into the Democratic National Committee’s headquarters in Washington during the 1972 presidential campaign.
Special prosecutor Leon Jaworski obtained a subpoena ordering Nixon to turn over tapes of conversations held in the White House believed to be related to figures who had been indicted in the scandal. The president had not been brought up on charges.
Nixon’s attorneys countered that the tapes fell under executive privilege and not subject to court orders. The justices ruled otherwise. Nixon resigned 16 days later.
Kavanaugh told Grassley, “No one is above the law in our constitutional system.”
“Under our system of government, the executive branch is subject to the law, subject to the court system,” he said. “It is an important part of the constitutional structure.”
The Washington Post had described Kavanaugh’s views on U.S. v. Nixon as “murky” in a story last month.
The paper reported Kavanaugh saying during a 1999 panel discussion, “maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch . . . that was a huge step with implications to this day that most people do not fully appreciate.”
The Post acknowledged he has praised the decision since.
One of the critiques raised by Democrat lawmakers following Kavanaugh’s nomination is that President Donald Trump chose him is because of the judge’s views on whether a president can be criminally prosecuted, given the ongoing investigation by special counsel Robert Mueller.
Democrats seized a 2009 law review article in which Kavanaugh made the case that presidents should be shielded from criminal prosecution and civil lawsuits while in office. He argued their responsibilities as chief executive and commander in chief are so demanding, they cannot fairly defend themselves in court and carry out their duties.
The judge did not contend presidents should be above the law, but rather that legal action should be delayed until after they left or were removed from office.
Kavanaugh acknowledged such a provision could only happen through congressional legislation. He further noted such a law would in no way impact Congress’ power to impeach the chief executive.
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