The Republican Assault on the Legitimacy of the Supreme Court

The Supreme Court depends for its legitimacy on the public’s acceptance that its nine robed, lifetime-tenured members decide cases on the basis of the law, rather than their own policy or partisan preferences. That fundamental distinction has been tested and diluted as presidents at least since Nixon have identified nominees based on the politically favored outcomes they are expected to produce. The confirmation process increasingly tests whether any distinction between legal and political outcomes survives as senators grill nominees about “judicial philosophy.” Republicans seem heedless of this concern as they barge ahead, intent on truncating the process for considering Brett Kavanaugh’s nomination, while a cloud hangs over the president and his nominee.

Recent events have strengthened the likelihood that Trump, his family and associates will square off against the United States and private litigants in court. Trump predictably rejected Mueller’s most recent request for an interview, continuing his stalling tactics. Mueller’s next move may be to issue a subpoena or it may be to indict Trump’s son, Donald Jr., and others for their role in meeting with Russian government representatives for the express purpose of obtaining dirt on Hillary Clinton and for covering up and lying about the purpose of the meeting. A Trump tweet acknowledged the purpose of the meeting and that Don Jr. may be in jeopardy. Michael Cohen announced that he would testify that Trump knew about the meeting in advance. Don Jr. previously told the Senate Intelligence Committee that he did not. Meanwhile, Paul Manafort’s trial forged ahead in Virginia, revealing that Trump may not have picked only the very best people to run his campaign. And the president’s other legal problems percolated along, including allegations of obstruction of justice, paying off mistresses, collecting unconstitutional emoluments, and whatever else Michael Cohen is ready to share.

Against this background, Republicans in the Senate seem intent on abbreviating the process for Kavanaugh’s confirmation. Chairman Grassley has signaled his intent to rush ahead with hearings in September. Yet, the archivist informed him that he cannot produce the documents from Kavanaugh’s time in the White House Counsel’s Office before the end of October. And Grassley has refused even to request documents from Kavanaugh’s crucial three years as Staff Secretary to President George W. Bush.

Republicans have three probable reasons for their rush. There is a real possibility they may lose their majorities in the House and Senate in November. They are afraid of what may emerge from the documents, particularly the large trove of Staff Secretary documents from years when Bush – with Kavanaugh at his side — was dealing with, among other things, torture, Guantanamo, other detainees, warrantless surveillance, the Iraq war, reproductive choice restrictions, civil rights controversies, and the politicized firing of U.S. Attorneys. Finally, Republicans, including Trump, may want Kavanaugh on the Court to protect the President.

Growing public perception holds that Trump selected Kavanaugh from among the list provided by the Federalist Society precisely because of Kavanaugh’s extreme views on presidential power. Kavanaugh has questioned whether U.S. v. Nixon, ordering Nixon to produce the Watergate tapes, was correctly decided. He has labeled Morrison v. Olson, upholding the constitutionality of the now lapsed independent counsel statute, as a case he would like to overrule. And he has asserted that presidents should be beyond the reach of criminal investigation and prosecution while in office.

The Senate should not process Kavanaugh’s nomination while Trump’s jeopardy increases. To do so would allow Trump to select the judge who might decide his own fate. Equally important, if Kavanaugh were confirmed now, he would take his seat with an appearance of irregularity that could weigh heavily on the legitimacy of the Court when Trump-related cases reach it. We know from Republicans’ shameless treatment of Merrick Garland and their willingness to leave a Court seat open for more than a year that they have a high tolerance for a Court with eight members.

If the Senate insists on proceeding, for its own sake and that of the public, it must conduct a thorough and fully transparent process. The Senate needs all of Kavanaugh’s documents from his entire time in government before any hearings are scheduled. Moreover, the Senate needs documents and testimony that will allow it to examine in depth the process by which Kavanaugh was selected. We know he was plucked by Trump from a list compiled under the leadership of the Federalist Society. We don’t know what all the criteria were for making the list, who established them, or who applied them to Kavanaugh. We don’t know what communications occurred between the list makers and the White House. Were Kavanaugh’s views on investigating and prosecuting a sitting president discussed? By whom?

For the sake of the Court’s legitimacy, Senators also must press Kavanaugh for a commitment to recuse himself from matters related to Trump’s legal troubles. The commitment must be explicit and not simply an agreement to apply existing rules. Supreme Court recusal practice is a black box. A federal statute – 28 U.S.C. 455 – governs the recusal of justices, though Chief Justice Roberts has questioned its constitutionality. Its central provision states that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The statute then provides a series of more specific prohibitions regarding financial and other conflicts. Each justice decides for himself or herself whether to recuse. There is no requirement that a justice consult anyone or state her reasons and there is no mechanism for review. The public is simply expected to trust the justice.

An embattled president, whose fate may well be decided by the Supreme Court, should not be permitted to appoint the justice who may cast the deciding vote. At minimum, the Senate must conduct an extraordinarily thorough and deliberate examination of the president’s nominee and must insist on an explicit promise of recusal from cases that affect the president directly. It must not rush to judgment to protect the president. The public’s perception of the Court’s legitimacy depends on it.

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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.