The Mandate for Transparency


Bill Yeomans

The nomination of Brett Kavanaugh to replace Justice Anthony Kennedy has revived recurring arguments about the extent of the nominee’s obligations to answer questions and produce documents. The potential for Kavanaugh’s vote to prove decisive in undermining voting and anti-discrimination laws, and protections for the environment, labor, and consumers, requires the Senate to examine his views intensively. But because Donald Trump is under serious investigation and because he nominated Kavanaugh through an irregular process, the Senate must demand even more extraordinary transparency from the nominee. If Kavanaugh fails to deliver, the Senate must reject him.

Trump chose Kavanaugh from a list of nominees approved by the conservative legal establishment led by the Federalist Society and the Heritage Foundation. The list was composed after Trump announced as a candidate that he would appoint only Supreme Court Justices who opposed Roe v. Wade. After Justice Kennedy announced his resignation, Trump quickly picked Kavanaugh from an already reduced, fully scrubbed pool of conservative ideologues. The conservative groups who compiled the list were fully confident that each would satisfy Trump’s litmus test. Even if he were capable of doing so, it was unnecessary for Trump to follow the example of Barack Obama, who spent weeks speaking with scholars and reading briefs, opinions and articles written by potential nominees. Trump had outsourced the selection process except for the final selection.

Kavanaugh, therefore, comes to the confirmation process carrying the full burden of Trump’s campaign rhetoric. All senators must take Trump at his word that he would select only justices who would overrule Roe v. Wade. Unless Kavanaugh establishes beyond doubt that he supports the survival of Roe, no senator who supports the right of women to control their reproductive choices can support Kavanaugh. Vague assurances about the value of adhering to precedent are meaningless in this context. Kavanaugh comes to the Senate stamped with the blessing of Trump and the conservative legal establishment (who did Trump’s bidding) as an opponent of Roe. The burden rests with him to prove otherwise in clear and unequivocal terms.

While we don’t know for certain why Trump plucked Kavanaugh from his outsourced list, Kavanaugh’s publicly stated views opposing the investigation and prosecution of presidents doubtless appealed to the beleaguered Trump. Despite his service on the staff of independent counsel Ken Starr during the investigation that led to Bill Clinton’s impeachment, Kavanaugh’s six years in the George W. Bush White House convinced him that presidents should be immune from investigation and prosecution while in office. In his now much-read Minnesota Law Review article, he called on Congress to pass legislation to protect the president. While he did not state definitively his view that the old independent counsel law (Congress allowed the law to lapse in 1999) was unconstitutional, he laid that issue to rest in a recorded interview in which he named Morrison v. Olson as a Supreme Court case that he would like to see overruled. Morrison, with only Justice Scalia dissenting, upheld the constitutionality of the independent counsel statute. Having already opined on this topic at length, Kavanaugh must answer detailed questions about his view of the constitutionality of the regulations pursuant to which Robert Mueller was appointed and the extent to which a president can be subjected to criminal process, including a grand jury subpoena for his testimony.

Justice Kennedy’s retirement poses an enormous challenge to the rule of law. It not only threatens to allow Trump to embed the substance of Trumpism in our law for a generation, but it may allow Trump and his family and associates to escape justice. The Supreme Court may decide issues that will determine the outcome of the Mueller investigation. Trump’s new justice could cast the deciding votes.

Trump has indicated his intention to fight the investigation in court. His protracted discussions with Mueller about submitting to an interview have been a ruse to delay the issuance of a subpoena for his testimony. If Mueller seeks a subpoena, Trump will challenge it. He will contest its constitutionality on a variety of grounds, challenge the appointment of the special counsel, and assert executive privilege. While precedent weighs against him, the issues would inevitably reach the Supreme Court. Other Trump-related matters involving the pardon power, the meaning of obstruction of justice, interpretation of campaign finance laws, and a raft of other issues may also reach the Supreme Court.

Trump’s selection of his own judge in the middle of a massive and substantial investigation into his own conduct poses an obvious conflict. The magnitude of the conflict is increased by Trump’s disdain for the role of an independent judiciary and his affinity for loyalty oaths. The seriousness of the potential charges against Trump and his campaign are of such magnitude that the confirmation of a Supreme Court justice ideally should await their resolution. Barring that, any candidate, including Kavanaugh, must be thoroughly forthcoming.

The need for transparency extends to documents. Kavanaugh’s lengthy service in the White House has left behind a paper trail that the Senate must examine, just as it did Elena Kagan’s during her confirmation. Kavanaugh was at the center of the action while the Bush White House conducted a torture program and launched a massive warrantless surveillance program, among other things. Sen. Durbin has asserted that Kavanaugh misled the Judiciary Committee about his involvement in the torture program during his D.C. Circuit confirmation hearing. This and other matters that can only be identified by obtaining Kavanaugh’s full record must be explored.

The importance of obtaining all of a nominee’s documents was demonstrated powerfully by the recent, last minute, forced withdrawal from consideration of Ninth Circuit nominee Ryan Bounds. His college writings that he had not voluntarily produced revealed racist, sexist, and anti-LGBT views.

The special circumstances of Kavanaugh’s selection require that he answer detailed questions about Roe v. Wade and his views on the power to investigate and prosecute presidents. He must also produce every scrap of documentary material that senators request.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.