I tried watching the Brett Kavanaugh confirmation hearing for a while this morning. In particular, I watched some of the questions California Democrat Diane Feinstein, the ranking member of the Senate Judiciary Committee, wanted answered. I came away from the experience highly annoyed. Kavanaugh was frustratingly weasel-like in his responses–overly rehearsed, intent on wasting Feinstein’s limited time, and dripping with insincerity.
In the following exchange, Kavanaugh simply refused to commit to the idea that a sitting president is legally and constitutionally obligated to respond to a court-issued subpoena.
Sen. Feinstein: “Can a sitting president be required to respond to a subpoena?”
Supreme Court nominee Kavanaugh: “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.” pic.twitter.com/tQp1VHu4GT
— NBC News (@NBCNews) September 5, 2018
Before that specific response, Kavanaugh was at pains to explain away his prior speculation that the United States v. Nixon decision was wrongly decided. He noted that he often listed that case, along with Madison v. Marbury, Brown v. Board of Education of Topeka, and the Youngstown Sheet & Tube Co v. Sawyer rulings, as one of the four greatest decisions in the history of the Supreme Court. I suppose that was meant to be encouraging.
In the same vein, he deflected questions about his respect for stare decisis on abortion rights by going on and on about how Planned Parenthood v. Casey had bolstered Roe v. Wade as precedent. That’s intended to hold the critical votes of “pro-choice” Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska, but the Republicans aren’t ramming home Kavanaugh’s nomination to get another David Souter or Anthony Kennedy on abortion rights.
All of that was packed into the fifteen minutes I watched, and it was enough to sicken me. We’ll all look back on those fifteen minutes and say that he deliberately misled the committee and the nation in order to get confirmed. But he’ll have a lifetime appointment and won’t give the slightest damn.
Here’s what he told Sen. Feinstein had been taken out of context:
Supreme Court nominee Brett Kavanaugh once suggested that the Supreme Court decision that forced President Nixon to turn over the Watergate tapes may have been “wrongly decided.”
Kavanaugh was taking part in a 1999 roundtable with other lawyers, according to The Associated Press. The conversation was documented in a decades-old Washington Lawyer magazine article—one of thousands of documents Kavanaugh handed over to the Senate Judiciary Committee on Saturday as part of the confirmation process …
… U.S. v. Nixon restricted the president’s ability to claim executive privilege in order to avoid handing over information as part of a criminal investigation. “But maybe Nixon was wrongly decided—heresy though it is to say so,” Kavanaugh reportedly said at the roundtable, which took place in the wake of Kenneth Starr’s investigation into President Bill Clinton.
“Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official … Maybe the tension of the time led to an erroneous decision.”
Later on in the discussion, he suggested that the court should have stayed out of the decision altogether: “Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.”
Does that sound like a man who thinks U.S. v. Nixon was one of the greatest decisions in the history of the Supreme Court?
But that was his defense. He didn’t walk back his prior assessment at all.