As the hyper-partisan Senate confirmation hearings of Judge Brett Kavanaugh continue, Senator Tim Kaine (D-VA) recently said via a press release: “I have diligently studied his record of academic writings and judicial opinions. I have read the limited documents we’ve been provided from his time working for Independent Counsel Kenneth Starr and the Administration of President George W. Bush. I have interviewed him face-to-face in my office. And I have observed his testimony before the Senate Judiciary Committee.”
Profoundly, Kaine said, “I conclude that Judge Kavanaugh should not be confirmed to the Supreme Court.”
Following yesterday’s development that Virginia’s other senator, Democrat Mark Warner, will not support the confirmation of Judge Kavanaugh, the Commonwealth’s representation in Congress’ upper chamber seems to not mirror what those in the Commonwealth believe about Judge Kavanaugh. Many Virginians have become angry with the unprecedented way in which the hearings have been conducted.
The Senate Judiciary Committee has forwarded 1,287 questions to the Supreme Court nominee, just nine from Republicans.
In fact, the 1,278 questions are four times more than the number asked of Justice Neil Gorsuch last year, and more than the combined total for every justice in U.S. history, said Judiciary Committee Chairman Charles Grassley (R-IA), according to The Washington Times.
Kaine added that he will not vote to confirm the D.C. Circuit Court of Appeals judge “particularly at this pivotal time in our nation’s history, because he cannot be counted on to serve as an independent check on the President or to uphold critical precedents that affect the wellbeing of millions of Americans.”
The Virginia senator, who practiced as a civil rights lawyer for 17 years with cases in state and federal trial and appellate courts, including the United States Supreme Court, reveals to many that his animus towards President Donald Trump is mostly to blame for his reticence towards Judge Kavanaugh.
“First, Judge Kavanaugh has failed to show he’ll be an independent check against unlawful action by the President,” Kaine said.
“He has said that a 1988 Supreme Court opinion upholding, by a 7-1 vote, an independent counsel to investigate the President was wrongly decided. He has suggested that the unanimous Supreme Court opinion forcing President Nixon to comply with a subpoena and turn over secret tapes was wrongly decided. He refused to say in his confirmation hearing whether a President must comply with a lawfully issued subpoena. He would not say whether a President could pardon himself,” Kaine said.
The senator added, “He has written, with no significant legal authority for the proposition, that a President may refuse to enforce a law validly passed by Congress even if that law has been upheld as Constitutional by the Supreme Court. He refuses to criticize this President’s scorched-earth attacks on the Mueller investigation and our nation’s law enforcement officials, even though he bitterly complained about President Clinton’s criticism of Kenneth Starr. And in many opinions in cases of individuals challenging government action, even torture, he has found all manner of reasons to reject the claims of persons in favor of a broad view of executive power.”
In Morrison v. Olson (1988), the Supreme Court was sought to decide if the Ethics in Government Act of 1978, which created a special court and empowered the Attorney General to recommend to that court the appointment of an “independent counsel” to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws, violated the constitutional principal of the separation of powers clause.
The Court found that the Act did not violate the separation of powers doctrine since it did not “impermissibly interfere with the functions of the Executive Branch.”
Justice Antonin Scalia, the lone dissenter in the case, said at the time that the law should be struck down because “criminal prosecution is an exercise of ‘purely executive power,'” and because the law “deprived the president of ‘exclusive control’ of that power.”
In 1999, Congress and the Clinton Administration declined to pursue the reauthorization of the law. Scalia’s opinion, many believe, influenced that eventual result. That year, then-Attorney General Janet Reno said, “Having worked with the act…I have come to believe—after much reflection and with great reluctance—that [the Act] is structurally flawed and that those flaws cannot be corrected within our constitutional framework.”
The law was originally passed in reference to President Richard Nixon’s firing of the special prosecutor his own administration appointed to investigate Watergate. The law provided for a special panel of judges who would appoint outside lawyers to investigate allegations of criminal conduct on the part of high-ranking executive branch officials. Under the Act, the attorney general could remove an independent counsel only for “good cause.” Such a provision ensured that counsels were independent of the administration, able to conduct investigations without interference from a president or their aides.
In an article from The Weekly Standard, the Rehnquist majority dealt with the law’s appointment and removal provisions before turning to the separation of powers. Scalia, on the other hand, said the majority’s approach to the case was “backwards” and instead began his opinion with a discussion of separation of powers. Scalia wrote that the principle “is the absolutely central guarantee of a just government,” and that “without a secure structure of separated powers, our Bill of Rights would be worthless.”
In his dissent, Scalia identified the powers the Constitution vests in the three departments of government and declared, “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that [quoting James Madison] ‘a gradual concentration of the several powers in the same department’ can effectively be resisted,” and, by implication, our rights preserved.”
“Frequently,” Scalia added, in what would be one of the most famous quotes attributed to the former justice, “an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
The simple reason of this is that the potential of the asserted principle to change the equilibrium of power is immediately evident.
On this notion, years later, Judge Kavanaugh wrote, “The indictment and trial of a sitting President…would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
There is a check against a president’s abuse of exclusive powers. “If the President does something dastardly, the impeachment process is available,” Judge Kavanaugh wrote in a 2009 Minnesota Law Review article.
Regardless, Kaine added in his opinion of Judge Kavanaugh that his “views about Supreme Court precedent do not inspire confidence.
The senator explained, “He has stated in his hearings that he views Roe v. Wade as ‘settled law.’ But in a 2003 email while working for the Bush Administration he resisted characterizing Roe as ‘settled law’ since the ‘Court can always overrule its precedent and three current Justices on the Court would do so.’ The number of justices on the Court who are hostile to reproductive rights has only grown since 2003. And given Judge Kavanaugh’s professed admiration for Justice Rehnquist’s dissenting opinion in Roe, there is a significant possibility that he would join that group to deny women their right to make reproductive health care decisions.”
The 2003 email from which this notion is surmised has been misrepresented by ThinkProgress, as well as many other liberal and abortion rights advocacy groups. In the email, Kavanaugh stated, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so. The point there is in the inferior court point.”
When questioned by Senator Dianne Feinstein (D-CA) on the correspondence, Judge Kavanaugh clarified, according to The Weekly Standard, that “in that draft letter, it was referring to the views of legal scholars, and I think my comment in the email was that might be overstating the position of legal scholars. And so it wasn’t a technically accurate description in the letter of what legal scholars thought.”
Furthermore, Judge Kavanaugh explained that Roe v. Wade “is an important precedent to the Supreme Court. It’s been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it….That makes Casey precedent on precedent.”
Even in 2006, when Kavanaugh was being questioned by Senator Chuck Schumer (D-NY) on his views of Roe v. Wade during his nomination to the D.C. Court, Kavanaugh responded that he would uphold the case, citing stare decisis.
Senator Kaine continues, “The candid admission that the ‘Court can always overrule its precedent’ raises a whole series of questions about what other ‘settled’ areas of law—in an era of 5-4 Supreme Court decisions—might suddenly be unsettled by this nominee. The constitutionality of the Affordable Care Act [ACA], the right of same-sex couples to marry, key immigration issues, the acceptability of reasonable rules to reduce gun violence, the ability to detain U.S. citizens as enemy combatants, and so many other issues currently under discussion could shift dramatically with this nominee.”
“With the expectation that the Court could soon take up another challenge to the ACA and its protections for people with pre-existing conditions, these matters are more than just hypothetical to families in Virginia who worry about losing their care. Judge Kavanaugh’s selective refusal to answer questions about issues deeply important to millions of Americans did nothing to allay these fears,” Kaine remarked.
Throughout the hearings, Judge Kavanaugh has repeatedly discussed the important role that jurisprudence plays for Supreme Court justices. Furthermore, he has indicated he would follow the confirmation hearing precedent of the current eight justices in declining to provide an answer about whether he would overturn any decision, including Roe, among others, that could potentially come before the Court.
Mentioning the body of the U.S. Supreme Court, Kaine said that “independence is needed now more than ever with a President who disrespects so many of our democratic norms and institutions. His actions have and will continue to create an avalanche of litigation, much of which will be decided by the United States Supreme Court. This nomination—in a manner unique in our history—is akin to a President picking a juror for his own trial. And thus the stakes are high—we must make sure that the nominee has the character of independence that the Framers sought when they designed our government.”
Lastly, “in these troubling times,” Kaine said, “I fear his confirmation to the Supreme Court would compromise judicial independence and threaten critical precedents.”