Kennedy’s Replacement: Presidential Self-Interest and the Functions of the Confirmation Process

Professor Paul Schiff Berman argues, in the New York Times, that Congress should not act on any nomination to replace Justice Anthony Kennedy until the conclusion of the special counsel’s investigation and clarification of Donald Trump’s legal position. He cites Trump’s “profound personal interest in appointing a judge he can count on to protect him” on a number of constitutional issues directly pertaining to the president’s legal interests or exposure that may come before the justices—such as self-pardons, compliance with compulsory process, or the appointment of the current special counsel. At least one member of Congress, Senator Cory Booker, has supported a “pause” in the nominations process to avert “a conflict of interest and a constitutional crisis.”

A delay in the confirmation process for these reasons at this time is not likely to generate widespread support, and not enough to carry the day in the Senate. It’s possible to imagine that, at some point, it might. Berman’s case would gain force if, to cite but two examples, the nomination were still pending at the time the president launched a formal challenge to a subpoena for his testimony or the special counsel proceeded with additional indictments that clearly implicated the president in wrongdoing. We have not arrived these points, and we cannot know whether we will.

But Professor Berman’s line of analysis does raise a question very relevant to the structure of the upcoming confirmation process. In what ways should these concerns shape congressional expectations about transparency of the nominee vetting process and the standards for recusal in cases involving President Trump’s legal affairs?

Consider first the not-unlikely prospect of Judge Brett Kavanaugh, who has developed a robust view of presidential immunity from legal process fully consistent with some of the more aggressive positions of the president and his legal team. He has written that

Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, 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.

Even the lesser burdens of a criminal investigation— including preparing for questioning by criminal investigators— are time-consuming and distracting.

Granted, Kavanaugh argues that it is Congress’ job to supply these protections for a president. But it is notable that he sidesteps the question of whether Clinton v. Jones, holding that the president is subject personal civil action while in office, was correctly decided. Given the strength of his convictions about the dangers of subjecting a sitting president to ordinary legal process, it is reasonably assumed that in any case in which presidential immunities were an issue and the question an open one, Kavanaugh would take the more protective position. It is not difficult to imagine that he would narrowly construe the Nixon tapes case to relieve the president from the obligation to comply with a subpoena for personal testimony.

So Kavanaugh would have less room to say, as many nominees do, that to avoid prejudgment, he must decline to engage substantively on these questions in Senate testimony. He has already said a great deal, and he has done so in forceful terms: his record is not a blank slate and he should be subject to a presumption that on these issues, he owes the Senate a higher measure of candor and responsiveness.

However Judge Kavanaugh approaches his testimony, it is still fair to ask if the positions he has clearly stated so far weigh in favor of recusal. The president is well aware of Kavanaugh’s views and would have every motivation to nominate him at least in part for these reasons. After all, these are issues on which the president has regularly and passionately opined, and the resolution of which his presidency may well hinge. As a matter of appearance, Kavanaugh’s participation in these rulings would raise serious questions. As a matter of substance, it will be challenging for an Associate Justice Kavanaugh to argue persuasively that, even with the best of intentions, he can achieve full impartiality in cases that subject him to pressure from two, converging directions: the issues of presidential immunities are ones on which he holds generally strong views, and he will be deciding them with potentially dire consequences for the president who nominated him.. The judgment he rendered years ago about the problems facing the independent and special counsel will come back to haunt him: no Justice appointed under these circumstances “will have the necessary credibility to avoid the inevitable charges that he is politically motivated.”

For these reasons, some might argue that, because Judge Kavanaugh faces the requirement or demand for recusal in these cases, his nomination would be unwise. It is not in the nation’s interest to have these questions trailing a justice confirmed to the bench in the middle of the Russia investigation. It is impossible to foresee a good outcome. A failure to recuse himself could seriously damage the Court. But recusal is not a desirable outcome either: the full complement of justices, and an odd number of them, should decide cases of this significance.

While Kavanaugh may be something of a special case, his situation also highlights the approach that Congress should take. The Senate should be prepared to question any nominee closely about the White House’s vetting of his or her position on these constitutional questions. Each of the prospective choices will, of course, interview with the White House Counsel and perhaps others on the senior staff, and then eventually with the president. The White House and the nominee should have to disclose in detail any discussion of issues directly related to the president’s legal affairs.

In normal circumstances neither the White House nor the nominee would divulge much detail about the vetting process. They would simply affirm that, on controversial constitutional questions, no “litmus test” was applied and that any questions especially important to the president arose in the ordinary course, as they would in any administration. In the current situation, there is a strong case for more systematic and thoroughgoing transparency. This is all the more important in an administration headed by a president with a history of expecting “loyalty” from senior law enforcement and indifferent if not hostile to the boundaries and norms that are meant to insulate his self-interest from his larger public responsibilities.

So the nominee should have to speak to precisely the questions asked and the answers given in the course of vetting. Congress is obligated to press hard on these points because once on the Court, justices make their own recusal decisions and only rarely explain them. Congress would have all the more reason to insist that a nominee commit now to more transparency about his or her views of both (1) the grounds for recusal and (2) a justice’s responsibility to provide a public accounting of the decision made. Whatever might be said of the Court’s recusal policies—and they have drawn stinging but astute criticism—it seems that they require special adaptation to cases involving issues in which the president has a direct and incontrovertible personal interest. The nominee should have to agree or disagree with the proposition that on these issues, he or she is required in these extraordinary circumstances to articulate and adhere to exacting recusal and transparency standards.

Given the volatility of this president, the White House’s struggle to maintain regular order and the pace of events, it is difficult to forecast each and every instance in which a recusal issue would arise. It certainly would confront the nominee if the president strays into ill-advised territory–e.g. the breadth of the pardon power, or the executive’s immunity from liability for obstruction–in the Oval Office interview. Any expectation the president expresses, including in his fevered tweeting practices, about how justices should address these questions would raise the question. The structure and substance of any questionnaire the White House uses to probe the nominee’s views, or prepare for the confirmation process, are relevant to the recusal question.

And each and every exchange or document reflecting these issues and concerns should be a matter of public record. Congress should expect a complete accounting from the nominee.

Chief Justice Roberts has defended the court’s refusal to formally adopt a code of ethics on recusal and other questions of judicial ethics. He has given various reasons, but one in particular stands out. He believes that the public can take some comfort in the exceptional integrity of jurists “whose character and fitness have been examined through a rigorous appointment and confirmation process.” It is up to Congress, on this sensitive set of issues, to display this rigor.

 

Photo: U.S. Supreme Court Associate Justice Anthony Kennedy (R) and President Donald Trump walk back inside the White House after Associate Justice Neil Gorsuch took the judicial oath during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC – Photo by Chip Somodevilla/Getty Images. 

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.