Democrats opposing Supreme Court nominee Brett Kavanaugh’s nomination are seizing on remarks he made in 2016 saying he would like to put the “final nail” in a Supreme Court precedent upholding an independent counsel law as constitutional. Republicans are pushing back, saying Kavanaugh’s comment is being distorted.
The independent counsel law, which took the hiring and firing of prosecutors away from the executive branch, expired in 1999 and does not apply to special counsel Robert Mueller’s Russia investigation. The ongoing probe falls under the Justice Department.
But Democrats have put Kavanaugh’s views on executive power and presidential investigations front and center as they battle his nomination. They have tried to tie his statements and writings to Mueller’s investigation, warning that Kavanaugh may be unwilling to protect that investigation or force President Donald Trump to comply with a subpoena.
Senate Democratic leader Chuck Schumer of New York, speaking from the Senate floor, said Kavanaugh in general seems to have an “almost monarchical view” of executive power and believes the president “gets to play by a different set of rules.”
He called it “deeply troubling” that Kavanaugh had identified the ruling in the 1988 case, Morrison v. Olson, as one he would like to overturn. Citing the “final nail” comment, Schumer said Kavanaugh should recuse himself from any matters involving the Mueller probe that may reach the Supreme Court.
Sen. Dick Durbin of Illinois, the No. 2 Democrat, echoed Schumer and told CNN that senators ought to make the executive powers issue “a key part of the questioning of Brett Kavanaugh.”
White House spokesman Raj Shah called the Democratic claims “laughable” and said there is a “clear legal difference” between the special counsel regulations and the expired independent counsel law.
“Conflating the two is a desperate scare tactic,” Sen. Orrin Hatch, a member of the Senate Judiciary Committee, tweeted.
Kavanaugh’s comment about overturning the 1988 ruling came in a forum at the American Enterprise Institute shortly after Justice Antonin Scalia’s death in 2016. In response to questions, Kavanaugh acknowledged there were high court rulings he would like to see overturned, but initially declined to identify any. Then, he continued: “Actually I'm going to say one, Morrison v. Olson. It's been effectively overruled, but I would put the final nail in.”
But in a dissenting opinion from January, Kavanaugh distinguished the old independent counsel law from the appointment of special counsels like Mueller.
“The independent counsel is, of course, distinct from the traditional special counsels who are appointed by the Attorney General for particular matters. Those special counsels ordinarily report to and are removable by the Attorney General or the Deputy Attorney General,” Kavanaugh wrote in a footnote to a 73-page dissenting opinion in a challenge to the Consumer Financial Protection Bureau.
Kavanaugh wrote that, under the Constitution, the president should be able to fire the CFPB director for any reason, despite federal law insulating the director from political interference.
He likened the CFPB structure to the independent counsel statute under which Kenneth Starr was named to lead the investigation that led to President Bill Clinton’s impeachment. Kavanaugh was a member of Starr’s team.
“Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty. The independent counsel experience strongly counsels against single-Director independent agencies,” Kavanaugh wrote.
Sen. John Cornyn, the No. 2 Republican, in a floor speech said Democrats have been performing “rhetorical calisthenics” to try and tank Kavanaugh’s nomination. He called Kavanaugh an “accomplished jurist who will fairly and faithfully apply the law as written and adhere to the text of the Constitution.”
Some legal scholars said Kavanaugh’s views about the 1988 Supreme Court ruling may have more to say about his view of independent regulatory agencies than the Mueller probe.
“It’s hard to reconcile his hostility to Morrison with core features of the post-New Deal administrative state, in which quasi-independent regulatory agencies like the SEC, FTC, and FCC — entities not subject to the daily whims of the White House — play an indispensable role,” University of Texas law professor Stephen Vladeck wrote in an email.
The video of Kavanaugh’s 2016 remarks is available on C-SPAN. CNN first reported on the comments Wednesday.