Non-judgmental on prez powers
Brett punts on subpoena query
Supreme Court nominee Brett Kavanaugh tackled topics from the limits of presidential power to the landmark Roe v. Wade abortion case on Wednesday, the second day of his Senate confirmation hearing.
Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, asked Kavanaugh whether he thought a sitting president could “be required to respond to a subpoena.”
“That’s a hypothetical question. As a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question,” Kavanaugh replied.
Whether a sitting president can be subpoenaed is a key question considering special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election and possible collusion with the Trump campaign.
President Trump could face a subpoena in the case.
Feinstein later responded on Twitter: “If Brett Kavanaugh truly believes the president isn’t above the law, he should have said the president must comply with a subpoena. There’s no reason Brett Kavanaugh couldn’t have given a straight answer.”
The Supreme Court has never ruled on the question of a presidential subpoena.
President Bill Clinton was subpoenaed by independent counsel Kenneth Starr in 1998, and eventually agreed to testify voluntarily and the subpoena was withdrawn.
Kavanaugh worked for Starr, and urged Starr to take an aggressive approach when questioning Clinton about his affair with Monica Lewinsky.
But in 2009, Kavanaugh wrote a law-review article saying presidents should be free from the distractions of civil lawsuits, criminal prosecutions and investigations while in office.
Vermont Democrat Patrick Leahy grilled the nominee on whether Trump had the right to pardon himself.
“The question of self-pardons is something I’ve never analyzed. It’s a question I have not written about . . . It’s a hypothetical question that I can’t begin to answer in this context,” Kavanaugh replied.
When the subject turned to the importance of previously settled cases including the 1973 Roe v. Wade decision that ensured access to abortion, Kavanaugh said, “Respect for precedent is impor- tant . . . Precedent is rooted right in the Constitution itself.”
He noted that Roe was reaffirmed in a 1992 decision, Planned Parenthood v. Casey.
He likened it to another controversial landmark Supreme Court decision, the 1966 Miranda ruling about the rights of criminal suspects. Kavanaugh said the court specifically reaffirmed both decisions in later cases that made them “precedent on precedent.”
As protesters disrupted the hearing for a second day, Kavanaugh also stressed the importance of judicial independence.
“The first thing that makes a good judge is independence, not being swayed by political or public pressure,” the conservative federal-appeals-court judge said. “No one is above the law in our constitutional system.”
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1. Kavanaugh, who would replace Anthony Kennedy on the bench, needs a simple majority to be confirmed by the Senate.
Republicans have a 51-49 majority after Jon Kyl was sworn in Wednesday to fill the seat held by the late Sen. John McCain of Arizona.
One of several Democrats who could potentially vote for Kavanaugh, Sen. Joe Manchin of West Virginia, joined the hearing in the audience for a while.
He is up for re-election this fall in a state Trump won handily in 2016. Independent Sen. Angus King of Maine also stopped in for part of the session.