Kavanaugh’s views on executive power may stir further controversy
WASHINGTON – Supreme Court nominee Brett Kavanaugh argued in 1998 that President Bill Clinton could be impeached for lying about his affair with Monica Lewinsky.
For much of the next decade he worked inside the White House for President George W. Bush, where he came to the conclusion that “the job of president is far more difficult than any other civilian position in government.”
Thus it was that in 2009, after Barack Obama won the presidency, he suggested that presidents should be immune from criminal investigations and prosecutions, as well as personal civil suits, until after leaving office.
“I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote.
Kavanaugh’s evolving views on executive power through the last past three presidencies are supported by mainstream conservatives today. But they are viewed with suspicion by some who believe the presidency has grown more powerful than the framers of the Constitution intended.
And Democrats are concerned that President Donald Trump’s nomination of Kavanaugh for the Supreme Court is a reward for his espousal of presidential powers. If he wins confirmation, some of them say, he should recuse himself from cases involving Trump.
“The president of the United States should not be above the law. The president of the United States should not be beyond a criminal investigation,” said Sen. Cory Booker, D-N.J. “The president of the United States should not be able to pick the judge that will preside over questions involving his investigation.”
While Senate Democratic leader Charles Schumer has said the focus of his party’s effort to defeat Kavanaugh will be the judge’s views on abortion and health care, his position on executive power is quickly emerging as a third front in the confirmation war.
Like many conservatives, including most of those on the Supreme Court, Kavanaugh objects to one form of executive branch power: that exercised by federal regulators and, in particular, independent agencies. He is wary of allowing most agency rules to take effect automatically under a 1984 Supreme Court decision, a process that has come to be known as “Chevron deference.”
In hundreds of opinions and dissents at the powerful appeals court, Kavanaugh has backed the president’s national security powers.