Supreme Conflict?

If he’s confirmed by the Senate, President Trump’s nominee to the Supreme Court could cement a potentially decades-long conservative grip on the court, affecting decisions on contentious topics such as abortion and gun control. But the most immediately important issue could be his views on whether a sitting president should be shielded from investigation, says Joel Richard Paul, F82, a professor of constitutional and international law at the University of California Hastings Law School in San Francisco and author of Without Precedent: Chief Justice John Marshall and His Times.

Brett Kavanaugh, whom Trump nominated in July to replace retiring Justice Anthony Kennedy, has argued that presidents should not be subject to civil or criminal investigations while in office. That opinion has drawn intense scrutiny because special counsel Robert Mueller is seeking to interview Trump as part of his probe into Russian interference in the 2016 election and potential collusion by the Trump campaign. If the president refuses to cooperate and faces a subpoena, the issue will go to the Supreme Court—where Kavanaugh might tip the decision in favor of the president who put him on the bench.

Some Democrats have argued that Kavanaugh should pledge to recuse himself from issues related to the president who nominated him. Paul proposes another solution—don’t fill the vacancy until the investigation is done.

“Prudence counsels against confirming any nominee until the criminal investigation is settled,” he said. “Justice will not falter if there is one vacancy on the court.”

Confirmation hearings are expected to be held before the mid-term elections this fall. A battle between conservative and liberal groups trying to influence the decision is expected to cost tens of millions of dollars. While that price tag is modern, such divisive debate over the nation’s highest court has been common throughout U.S. history, Paul says—perhaps because there’s so much at stake.

Paul had some personal experience with the battle over the Supreme Court nomination of Justice Clarence Thomas. In 1991, Paul testified before the Senate Judiciary Committee to corroborate Anita Hill’s testimony that she was sexually harassed by Thomas while he was the legal counsel to the Equal Employment Opportunity Commission.

Tufts Now recently spoke with Paul to learn more about the politics of Supreme Court nominations and Kavanaugh’s opinions on executive power.

Tufts Now: Brett Kavanaugh has said that a U.S. president should not face civil or criminal investigation while in office and should be able to fire special prosecutors. How might those opinions be influential, as President Trump tangles with the Justice Department and faces ongoing investigations?

Joel Richard Paul:  There are a number of constitutional issues arising from the Mueller investigation: What are the limits on the president’s pardon power? Must a president answer a subpoena? Can a

president be indicted before he is impeached? Can the president remove the special counsel? These questions must ultimately be answered by the Supreme Court. Judge Kavanaugh has written that a president should be immune from a civil or criminal proceeding while he is in office. One concern I have is whether this president should select the justice who may well cast the deciding vote on any of these issues while the criminal investigation is ongoing. I think prudence counsels against confirming any nominee until the criminal investigation is settled. Justice will not falter if there is one vacancy on the court.

Kavanaugh served as primary author of the Starr Report that led to the impeachment of Bill Clinton, a Democratic president. After working on that investigation, though, he concluded that presidents should not be distracted by subpoenas or a criminal investigation or prosecution while in office. Do you share his view?

Judge Kavanaugh’s view is troubling. There are precedents for subjecting a president to a court’s civil and criminal jurisdiction. The first time a subpoena was served on a president was when Chief Justice Marshall issued a subpoena on Thomas Jefferson for his papers connected to the Aaron Burr treason trial. Jefferson did not deny that the court could issue the subpoena, though he argued that the papers were protected by executive privilege. Ultimately, Jefferson turned over all the documents. Both Nixon and Clinton were served with subpoenas. Nixon complied after the Supreme Court ordered him to turn over the tapes that brought down his presidency days later. Clinton complied with a deposition. In sum, no president has ever refused to comply with a subpoena.

However, President Trump has defied other expectations, so we shall see what happens. The Supreme Court in both the Clinton and Nixon cases said the “fair administration of justice” requires presidents to submit to the jurisdiction of the courts. There is nothing in the text of the Constitution, in the ratification debates, or in the subsequent practice of the judiciary to suggest that any high official of the United States is immune from criminal justice while in office. Indeed, even sitting federal judges have been indicted and convicted by courts.

Speaking of the ruling that Nixon had to turn over his tapes, Kavanaugh suggested that opinion might have been “wrongly decided,” in comments published in 1999 that recently came to light as part of the confirmation process. He said the ruling “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.” What do you make of that?

Judge Kavanaugh’s view is way outside the mainstream with regard to the Nixon tapes case. The Supreme Court unanimously held that Nixon must comply with the subpoena, and scholars have not questioned the wisdom of that decision. Questions about the scope of the president’s executive privilege must ultimately be decided by the courts. Since the time of Chief Justice John Marshall, it has been generally accepted that the Supreme Court—not the president—is the final arbiter of what the Constitution means. It is a bit strange for a judge who claims to follow the literal text of the Constitution to insist that the president has a privilege that does not appear anywhere in the Constitution.

As part of the U.S. system of checks and balances, the Supreme Court is often seen as independent from and having authority over the president and Congress. Has it always been that way? And is that independent authority endangered now?

Ever since Chief Justice John Marshall, it has been clear that the Supreme Court is a co-equal branch of government. It is neither superior nor inferior to the political branches. The power of the judiciary is checked and balanced by the powers of the president and Congress to nominate and impeach judges, define the jurisdiction of the courts, write statutes, propose constitutional amendments, and use the public forum to sway public opinion. The persistent attacks by President Trump on the courts are a worrisome development. The independence of the judiciary is the lynchpin of our liberty.

The Republican-controlled Congress refused to vote on President Obama’s last nomination to the court, and interest groups on both sides are planning to spend millions of dollars on advertising and advocacy for or against Kavanaugh’s nomination this summer and fall. Are there historical precedents for this sort of fight?

Yes. These fights have been going on throughout our history. When George Washington nominated John Rutledge as the second chief justice, the Senate rejected him largely for political reasons. The Senate later tried to impeach Justice Samuel Chase because the Jeffersonians did not like his politics. When President Jackson nominated Roger Taney as an associate justice, the Senate rejected his nomination because of Taney’s role as secretary of the Treasury in the fight over the Bank of the United States. (Taney was later confirmed as chief justice.) The nomination by President Wilson of the first Jewish justice, Louis Brandeis, was one of the nastiest fights in our history, inflamed by anti-Semitism.

But that was nothing compared to the attacks on Justice Abe Fortas when President Johnson nominated him as Chief Justice. Fortas’ nomination was derailed in part by the accusation that he supported pornographic movies. The Republicans made that accusation stick by exhibiting blue movies to the senators in the basement of the Senate as examples of the kind of films that Fortas would allow. Those may have been the most popular judiciary hearings ever.

Divisive debates over Supreme Court nominees did not start with the nominations of Judge Bork or Justice Thomas. They are an unfortunate aspect of our political system. Perhaps if judges were chosen by other judges, rather than by politicians, or if they were appointed for limited terms, or if there were less at stake, the confirmation process would be less controversial.

Heather Stephenson can be reached at heather.stephenson@tufts.edu.