In 2016, the Republican Senate refused to consider Merrick Garland (Chief Judge of the United States Court of Appeals for the District of Columbia Circuit – the second highest court in the land) as President Obama’s nominee to fill the vacancy on the Supreme Court of the United States after the death of Antonin Scalia. After 293 days of obstruction, the GOP ran out the clock giving President Trump the opportunity to seat Neil Gorsuch on the Supreme Court.
Now, swing-justice Anthony Kennedy has announced his intention to retire from the Supreme Court giving Trump the chance to fill yet another seat on the Supreme Court. He has nominated Brett Kavanaugh – a former clerk of Anthony Kennedy who currently serves under Merrick Garland as a judge on the DC Circuit court.
How did Trump happen to chose Kavanaugh among the twenty-five candidates which the White House says were under consideration. Trump and his family and their businesses, his Presidential campiagn and his administration are under investigation by the special council and the states for a variety of matters which may come before the Supreme Court. Can a sitting President be subpoenaed? Can he be indicted? Can he pardon people who might otherwise turn state witness and testify against him? Can he pardon members of his own family or even himself? These are all questions which have not yet come before the courts and can only be resolved by the Supreme Court.
Kavanaugh is unique among the 25 judges under consideration in his interpretation of executive privilidge.
In an article for the Minnesota Law Review in 2009, Kavanaugh wrote that Congress should pass a law exempting the president from criminal prosecution and investigation while in office, including from questioning by criminal prosecutors or defense lawyers.
In the Minnesota Law Review, Kavanaugh argues:
I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office…. We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.
In fact, Kavanaugh has claimed that even without action by Congress, the President may already be above the law and enjoy immunity was any indictments or discovery while he is in office. At a 1999 roundtable organized by the Washington Lawyer suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.
But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon 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. That was a huge step with implications to this day that most people do not appreciate sufficiently…Maybe the tension of the time led to an erroneous decision.
The U.S. v. Nixon marked limits on the president’s ability to withhold information needed for a criminal prosecution and led directly to Richard Nixon’s resignation on August 9, 1974. Associate Justice William Rehnquist recused himself as he had previously served in the Nixon administration as an Assistant Attorney General, but the other eight justices ruled against Nixon’s claims of executive privilege. This unanimously decision included the support of three justices nominated by President Nixon himself: Associate Justice Lewis Powell, Associate Justice Harry Blackmun and the author of the decision Chief Justice Warren Berger.
In our Declaration of Independence, our country’s founders bemoaned King George’s “obstruction of the administration of justice”. Accordingly, in the United States Constitution the three branches of government serve as checks and balances which guarantee that no one – not even the President is above the law. Allowing unlimited executive privileges eliminates the thin line which separates our democracy from a simple monarchy.
In a few weeks we will be reading the Torah portion Shoftim in which the future kings of Israel are enjoined to make an extra copy of the Torah and keep this scroll of the law with him so that he should refer to it at all times and come to understand that while he was head of state, even he was not completely sovereign, he was still subject to the law.
And he shall write in his own name a Sefer Torah. When he goes forth to war he must take it with him; on returning, he brings it back with him; when he sits in judgment it shall be with him, and when he sits down to eat, before him, as it is written: and it shall be with him and he shall read therein all the days of his life. (M Sanhedrin 2:4)
In the same portion (Deut. 16:20), the Torah declares tzedek, tzedek tirdof: “Justice, justice shall you pursue.”
If we believe in justice, then everyone must be accountable under the law, and if a judge fails to understand this, then that judge does not deserve a life-time appointment to the Supreme Court.