On the final day of Senate Judiciary Committee hearings on Judge Brett Kavanaugh’s Supreme Court nomination, Democratic senators trotted out an unusual ally: former Nixon aide John Dean, who argued that Kavanaugh is too deferential toward presidential power to be trusted on the Court. Dean’s testimony was presumably meant to buttress the Left’s scaremongering assertion that a Justice Kavanaugh would singlehandedly shield President Trump from some future, hypothetical criminal prosecution. But like other Democratic attacks on Kavanaugh during the hearings, Dean’s argument was both superficial and wrong.
In his prepared remarks, Dean warned the committee that if Kavanaugh is confirmed to replace retiring Justice Anthony Kennedy, it will usher in “the most presidential-powers-friendly Court in the modern era.” One wonders when Dean’s “modern era” began. Is he suggesting that a Kavanaugh-enriched court would be more deferential to the executive than the New Deal justices who rubber-stamped President Franklin Roosevelt’s program of placing Japanese-Americans in internment camps during World War II?
Dean’s assertion that Kavanaugh is “presidential-powers friendly” is based almost exclusively on the judge’s 2009 Minnesota Law Review article concerning separation of powers. But as Dean himself concedes, Kavanaugh does not discuss how the courts should adjudicate questions of presidential power; rather, he presents a number of policy proposals for Congress to consider. And contrary to Dean’s assertion that Kavanaugh would have Congress “immunize” presidents from liability, Kavanaugh suggested that Congress should temporarily delay criminal or civil proceedings against a president until he or she leaves office. In cases where a “bad-behaving or law-breaking President” needs to be checked immediately, Kavanaugh points out that Congress can step in and exercise its constitutional impeachment power. And then, once removed from office, the law-breaking president would still be subject to criminal prosecution.
This is hardly the “unchecked president” that Dean warns about in his remarks. Moreover, Dean did not even attempt to explain why, having written that it is Congress’s job to decide whether to defer litigation involving the president, Kavanaugh would attempt to enact this proposal through judicial fiat. Of course, if Democrats want a special counsel who can’t be fired by the president, they should try to bring back the post-Watergate independent-counsel law that the Clinton administration let lapse in 1999.
The only other basis for Dean’s attack on Kavanaugh’s jurisprudence is his speculation that—contrary to his sworn testimony—Kavanaugh does not really support the precedent of United States v. Nixon, in which the Supreme Court rejected the Nixon administration’s attempt to use executive privilege to block a trial-court subpoena. In other words, Dean suggests that Kavanaugh lied to the Senate. Granted, Dean knows a thing or two about lying, having been convicted, imprisoned, and disbarred as a result of his involvement in the Watergate cover-up. Still, there is no evidence that Kavanaugh attempted to mislead the Senate regarding Nixon, or on any other matter.
Dean’s assertion that Kavanaugh’s appointment would tip the Court in favor of greater presidential power assumes that there is some material difference between Kavanaugh’s views on executive power and those of the retiring Kennedy—but there isn’t. Kavanaugh, for example, is well known as a proponent of the “unitary executive” doctrine—holding that all executive functions must ultimately be controlled by the president—which he expounded in a lengthy dissent in Free Enterprise Fund v. Public Accounting Oversight Board (2008). When that case reached the Supreme Court, a majority of the justices, including Kennedy, adopted Kavanaugh’s reasoning.
With respect to war powers, Kennedy may well be more supportive of executive power than Kavanaugh. In Hamdi v. Rumsfeld, for example, Kennedy joined a plurality of the Court in ruling that President George W. Bush had authority to detain enemy combatants, including American citizens, for the duration of hostilities in Afghanistan. By contrast, Justice Antonin Scalia—to whom Kavanaugh has pointed as a role model—forcefully dissented, arguing that the president cannot detain American citizens indefinitely unless Congress suspends habeas corpus.
Kavanaugh’s views on the presidency reflect his support for a robust separation of powers in which the elected branches control policy decisions. Yes, he has proposed that presidents should be temporarily shielded from litigation, but that proposal was directed at Congress, not at his fellow judges. The unitary-executive doctrine is meant to ensure that all executive-branch officials—even the leaders of so-called independent agencies—are ultimately accountable to an elected president. Likewise, Kavanaugh’s skepticism regarding the Chevron doctrine, which instructs judges to defer to administrative agencies’ own interpretations of their governing statutes, is meant to ensure that courts can rein in agencies that draft regulations that go beyond the mandate given to them by elected representatives.
Kavanaugh’s commitment to democratic rule is, no doubt, worrisome to a progressive Left that has grown accustomed to advancing its agenda via unelected judges and bureaucrats. But the notion that Kavanaugh supports “unchecked” presidential powers is pure fabrication.
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