The Wolves in Kavanaugh’s Footnotes

[Update: I have written this post for Slate, with less on Kavanaugh’s invitation to presidents to choose to suspend and not to enforce the ACA, and more on his hints at overturning Humphrey’s the protections of independent agencies in Aiken (Yucca Mountain) ]

If you’re concerned that Judge Kavanaugh has an extreme view of presidential power, you’re not going to find proof in his overhyped 2009 Minnesota Law Review article. But you might find it in his injudicious judicial footnotes.

Last week, I explained how that article had been misinterpreted and should actually be solace that he does not think the Constitution shields a president from investigation.  Unlike some stealthy candidates, he has a real record with courageous decisions, and we shouldn’t punish a nominee with a deep and complicated record. I wrote about how much I admired his handling of a constitutional challenge to the ACA, and I was encouraged by his view that courts should have a stronger role in checking agencies’ powers over statutory interpretation. Jonathan Adler has flagged Kavanaugh’s persuasive opinion in U.S. v. Burwell in favor of criminal defendants’ rights, dissenting from a majority opinion joined by Judge Garland. I like this Kavanaugh a lot.

But there is a very different Kavanaugh in some troubling footnotes and his use of precedent in two cases that I have looked at more closely: one from 2016 and 2018 that hints an end independent agencies, and the other, the ACA dissent in 2011, that invites executive “suspension” of the laws (i.e., non-enforcement). He appears to have a blindspot: a preference for executive power even if the history does not support such a conclusion. That’s a problem for an ostensible originalist. He appears to have an excessive preference for Scalia dissents and concurrences. And his lack of deference to precedent and history in these cases signals that he is far more likely to overturn Roe v. Wade than I had naively imagined. Much like Kennedy, Kavanaugh may be an idiosyncratic or heterodox conservative; but unlike Kennedy, the surprise may be that he turns out to be more like Scalia.

Continue reading “The Wolves in Kavanaugh’s Footnotes”

Four thoughts on Judge Kavanaugh

[Update: I wrote this post below after reading a selection of Kavanaugh’s work: his Minnesota Law Review article, Seven-Sky on the ACA, and his net neutrality opinion. But then I read more of his work, which indicates a lack of deference to precedent and a relatively extreme set of views favoring the increase of presidential power. See my Slate pieces on Roe with Dahlia Lithwich here and on presidential power here.]

I am about to write some cautiously positive things about a judge on the short-list for a Supreme Court seat. This is not an endorsement of the process of making that short-list, of how we got to this moment, or of this judge for the appointment. I’m simply trying to read and reflect on a limited set of his work in areas I study.

Caveat: I don’t think the Senate should confirm any single nomination for the Supreme Court at this moment. No President facing concrete evidence of high crimes has ever nominated a Justice, mainly because Justices did not retire in the middle of such a crisis. That will be part of Kennedy’s legacy, and it doesn’t reflect well on Kennedy. I think it would be more appropriate to wait, to nominate a Justice with broad bipartisan support, or to forge a bipartisan deal to expand the Court to 12 with a mix of four appointments from a consensus group of moderates.

But I am not holding my breath. And I am also concerned about unfair attacks on good judges, even if I don’t agree with those judges on many important legal issues. And I am concerned that our politicized confirmation process of scouring a judge’s record for attack fodder has had a deeply regrettable effect of encouraging judges to write less, say less in confirmation hearings, and limiting judicial independence with too much fear and favor.

So here are four thoughts on Judge Kavanaugh. I’ve never met him, but I’ve thought of him as a respectable, independent-minded, highly qualified mainstream conservative judge for a while. I deeply admired his opinion in the ObamaCare case. After looking back at some of his decisions and his writing, I still think so. I have not reviewed his enormous body of work, so this is merely a partial review. It is not an endorsement of a Supreme Court nomination or confirmation, merely an appreciation for some of his central work.  Continue reading “Four thoughts on Judge Kavanaugh”

My interview on TrumpCast

Slate’s Jacob Weisberg and I talked about the Trump lawyers’ letter, why it’s wrong on absolute executive power and executive privilege, how the lawyers conceded that Trump obstructed justice by witness tampering — and why they made this strategic concession (they’re more afraid of a live interview with Mueller than they are afraid of a GOP Congress on obstruction). Bonus: I explain why Rosenstein should recuse himself from the obstruction part of the case.

You can read my full explanation in Slate for the witness tampering felony charge here. And you can see my conversation with Chris Hayes and Natasha Bertrand about it on MSNBC here (look for June 4, 15 minutes into the show).

Did Trump Just Admit to Felony Witness Tampering?

My new Slate piece:

“On Saturday, the New York Times published a confidential letter that President Trump’s lawyers Jay Sekulow and John Dowd sent in January to special counsel Robert Mueller arguing that Mueller cannot subpoena the president. Most of the commentary so far has been about the letter’s assertion of extreme and unprecedented executive power. But buried in the letter is a bigger bombshell: an apparent admission that Trump obstructed justice…” Continue reading “Did Trump Just Admit to Felony Witness Tampering?”

How Trump’s Dinesh D’Souza Pardon Should Backfire

My Slate piece on Friday:

If it pushes New York to change its double jeopardy laws, it could be a big defeat for the president.

President Donald Trump’s pardon of Dinesh D’Souza on Thursday sparked speculation that it was a signal to his associates not to cooperate with Robert Mueller’s Russia probe. Roger Stone, Trump’s own informal adviser and a potential defendant in the Mueller investigation, seemed to think as much: “The special counsel has awesome powers, as you know, but the president has even more awesome powers,” Stone told the Washington Post.

If that is the strategy, it may be backfiring legally and politically.

Continue reading “How Trump’s Dinesh D’Souza Pardon Should Backfire”

Declaration of Prosecutorial Independence: Get ready for DOJ v. Trump

My latest in Slate, based on my research with Ethan Leib.

“On Thursday, Department of Justice officials have scheduled a pair of meetings about an FBI informant’s role in the bureau’s investigations of Donald Trump. In brokering the deal, Trump and the Department of Justice have averted one showdown, but they are still heading toward a confrontation over highly sensitive and confidential material. The bad news is that the next confrontation might provide a pretext for Trump to fire DOJ officials, while further endangering our nation’s intelligence gathering and the rule of law. The good news is that this pretext is so clearly in bad faith that it might allow those DOJ officials to offer an overdue constitutional argument to clarify the limits of executive power: that the president’s constitutional duty to “faithfully execute” the office means he cannot sabotage criminal investigations or national security for self-protection. The next move might be to prepare for declaratory relief in federal court…”

See article for more.