Brett Kavanaugh’s nomination to replace U.S. Supreme Court Justice Anthony Kennedy has set off a firestorm of criticism. Some of this has to do with the prospect that Kavanaugh would provide a deciding vote to overrule Roe v. Wade or, at the least, to further restrict access to abortion. Some of the criticism has to do with concerns that Kavanaugh would move an already right-wing Court even further to the right.
What makes Kavanaugh’s nomination different is that he wasn’t chosen by an ordinary U.S. president. Donald Trump seeks to undermine a principle that elected U.S. officials, including the president, are subject to limits on their power and cannot violate the law with impunity.
Scholars who study authoritarianism warn that Trump threatens the foundations of constitutional democracy. Relatedly, a crisis of legitimacy has hovered over Trump’s presidency from the start. The investigation led by Special Counsel Robert Mueller calls into question whether Trump conspired with and/or helped cover up Russia’s attack on American democracy in 2016.
Given this set of circumstances and additional factors I’ll address below, Kavanaugh should recuse himself from cases that could personally implicate Trump, most centrally in the context of Mueller’s investigation. These could include cases involving Trump’s pardon power (including self-pardon) or a possible subpoena seeking Trump’s testimony before a grand jury.
Some argue there is no need for Kavanaugh to recuse. For example, commentator Asha Rangappa says Kavanaugh has no conflict of interest that would compromise him, writing that there is “no evidence” to support the claim that Kavanaugh could not be objective and neutral, “other than an apparent assumption that Kavanaugh would feel beholden to Trump and pressured to rule in his favor.” Rangappa concludes that the lifetime tenure afforded to Supreme Court justices would allow Kavanaugh to decide cases involving Trump and the Mueller investigation without feeling political pressure. In addition, she (rightly, in my view) observes that alarms raised about a 2009 law review article Kavanaugh wrote are overstated. (Though some have raised concerns about this article and other writing by Kavanaugh concerning presidential accountability.)
In normal times, with a president committed to constitutional democracy, I’d agree with Rangappa that recusal is not necessary. But Kavanaugh’s nomination takes place in extraordinary times. There is even a useful precedent that comes from another time when a U.S. president threatened the rule of law.
In July 1974, the Supreme Court decided the case of United States v. Nixon, involving President Richard Nixon’s claim that the courts could not compel him to turn over tape recordings of conversations he had with White House advisors. These tape recordings had been subpoenaed by the Special Prosecutor investigating the Watergate break-in.
The Court ruled 8-0 that Nixon’s claim of executive privilege was not absolute and had to yield in this context, where the tapes could contain information relevant to an ongoing criminal investigation. Nixon turned over the tapes, which showed among other things that he was involved in the Watergate cover-up and had attempted to shut down an FBI investigation into the burglary. Two weeks later, Nixon resigned from office.
Why was United States v. Nixon an 8-0 vote? Because Associate Justice William Rehnquist recused himself from the case. Although there was no specific indication that he was personally indebted to Nixon in any way, Rehnquist had served in the Nixon administration’s Justice Department before Nixon nominated him to the Supreme Court in 1971.
Americans since have viewed Nixon’s presidency as either an aberration or a cautionary tale. It was hard to believe constitutional democracy in the United States would face a similar challenge again. But in Trump we now see a president who challenges the rule of law in ways even Nixon did not dare to do.
Kavanaugh’s nomination to the Supreme Court should be understood in this context. If Kavanaugh does join the Court, he should follow Rehnquist’s lead and recuse himself from cases related to the Mueller investigation.
The applicable statutory standard requires Supreme Court justices to recuse themselves from cases where their “impartiality may reasonably be questioned”. In other words, Supreme Court justices must avoid “the appearance of bias”.
Reason to be concerned about the appearance of bias if Kavanaugh were to decide a case involving Trump and the Mueller investigation.Both Trump and Kavanaugh give reason to be concerned about the appearance of bias if Kavanaugh were to decide a case involving Trump and the Mueller investigation.
It appears that Trump expects and demands loyalty from those he sees as his subordinates — which seems to include everyone in government. James Comey lost his job as FBI director when he failed to do Trump’s bidding, after Trump had expressly asked for his loyalty. It is true that Comey was not an Article III judge subject to removal from office only after impeachment proceedings. But the fact that Trump could not summarily fire Kavanaugh as he did with Comey does not resolve the issue. Even people whose jobs are not at risk can be subject to political pressure — especially from elected officials who, like Trump, do not respect norms designed to insulate judges from such pressure.
Moreover, Trump has shown he has no qualms about personally attacking sitting federal judges. He did so during the 2016 presidential campaign when he spuriously claimed that U.S.-born Judge Gonzalo Curiel’s Mexican ancestry should disqualify him from presiding over a case involving Trump University. Trump continued these attacks after the election when he derided a “so-called” federal judge who Trump ominously suggested should be held responsible in the event of a future terrorist attack. And when then-Supreme Court nominee Neil Gorsuch appeared to stand up for judicial independence, Trump reportedly considered withdrawing the nomination because he worried Gorsuch would not be loyal to him.
It is clear Trump does not believe in the idea of judicial independence — as he just reminded us by issuing an executive order claiming authority to remove civil service protections for administrative law judges. A serving ALJ (who refused to be named, fearing retaliation from the Trump administration) described this as an attempt “to take control over the judiciary.”
Given this, Kavanaugh’s fulsome praise for Trump is troubling. After he was nominated, Kavanaugh gushed that “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”. It was hard not to be reminded of Sean Spicer, the former White House press secretary, brazenly lying about the size of Trump’s inauguration crowd.
Perhaps Kavanaugh simply sees what we all do: flattery is the way to win Trump over. Perhaps his calculation would change after confirmation to the Court. Perhaps he won’t care about Trump bullying him on Twitter if he decides a case against Trump’s interest.
But there is even more reason for Kavanaugh to recuse than there was for Rehnquist in United States v. Nixon. Nixon named Rehnquist to the Court the year before the Watergate break-in took place; Kavanaugh’s nomination comes in the midst of an investigation into possible wrongdoing by Trump. Kavanaugh sycophantically praised Trump just after receiving his nomination. And Trump’s own record of demanding loyalty from those he sees as his subordinates while lashing out at those he perceives as disloyal must be considered as well — even when it comes to a nominee who Trump could not personally fire.
These are not ordinary times and this is not an ordinary Supreme Court nomination. Trump understands that the Court may rule on issues that determine the fate of his presidency, as does Kavanaugh. Accordingly, reasonable people could question Kavanaugh’s ability to be impartial in cases related to the Mueller investigation.
Chris Edelson is an assistant professor of government at American University’s School of Public Affairs. He is the author of “ Power Without Constraint: The Post 9/11 Presidency and National Security ” (University of Wisconsin Press, 2016).
