Some people favor conservative judges while others prefer liberal judges. I like fair and unbiased judges. Consider Judge Kavanaugh, who once was in a position to investigate President Clinton:
Mr Kavanaugh, who at the time was an an associate counsel for Ken Starr, the man leading the probe, wrote he was “strongly opposed to giving the President any ‘break'” in questioning unless he “resigns” or “confesses perjury”.
Entitled “Slack for the President?”, the memo dated 15 August 1998, he wrote: “The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behaviour that has somehow gotten lost in the shuffle.”
He added: “He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behaviour clear — piece by painful piece.”
He went on to recommend 10 questions he wanted posed to Mr Clinton, suggesting the then president would be required to answer them “to make his pattern of revolting behaviour clear”.
After seeing how investigations impacted the Bush administration, he changed his mind:
In a 2009 Minnesota Law Review article, Kavanaugh detailed his concerns about indicting a sitting president, saying his views had changed over the issue since the 1980s and 1990s.
“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
This reminds me of some poll results I saw a few months back:
Notice that the title of the graph does not accurately characterize the question. The title implies a normative judgment “accepting”, whereas the poll is about a purely positive question; can those committing immoral acts do a good job on public policy questions? I could imagine someone thinking a sleazy politician could do a good job, and yet still not be accepting of their behavior.
Also notice the particularly large shift in the views of white evangelical Protestants. (I wish black evangelical views had been reported.) In 2011, many poll respondents might have visualized Bill Clinton when answering the question. In 2016, Donald Trump may have been on people’s minds.
Just to be clear, I have no problem with anyone changing their mind, whether it be Judge Kavanaugh or evangelical voters. However, I would hope that views on issues of principle do not reflect political calculation. Thus one’s view on the constitutionality of the so-called “Muslim travel ban” and/or Obamacare should not in any way depend on whether the judge views these as sensible public policies.
Special prosecutors seem like a good idea to me—a way of preventing presidents from becoming too authoritarian or corrupt. Having said that, I’m in no position to judge whether this particular institutional setup is constitutional. So I am not going to offer an opinion on that question. However, considerations such as:
Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible . . .
or
The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behaviour that has somehow gotten lost in the shuffle.
do not have any bearing on whether special prosecutors have a constitutional right to investigate US Presidents. Will Judge Kavanaugh be able to separate his personal views from his decisions on the constitutionality of various laws? Perhaps, but this case doesn’t exactly inspire confidence. After all, it’s not just that his views changed when the US switched from a Democratic to Republican president, even the tone of his remarks feels quite different. Let’s hope he will be equally willing to provide “slack for the President” of either party if he is confirmed to a position on the Supreme Court.
READER COMMENTS
Airman Spry Shark
Aug 23 2018 at 4:14pm
Since he wrote this during the Obama Administration, it seems much more like he incorporated new knowledge (from inside an Administration) and updated his beliefs accordingly.
Additionally, his suggestion that Congress should pass a law exempting the President from such investigations & suits implies that he believes Presidents are not currently so exempt.
Philo
Aug 23 2018 at 4:48pm
Good catch, Airman Spry Shark (at least, the law review article was published during the Obama administration). Not just judges but also commentators should be fair–not swayed by, for example, TDS.
Thomas
Aug 23 2018 at 6:46pm
This post is a good example of losing sight of the forest by peering at trees. There’s a lot more to Judge Kavanaugh than his stance on the issue of indicting a sitting president. Leftists aren’t going into orbit because of his now-lenient stance on that issue. They’re going into orbit because he will make the Court more “conservative” (i.e., libertarian) on economic issues and the centralization of power in D.C.
Bob
Aug 24 2018 at 10:05am
Thomas,
As a liberal I can tell you that I am more concerned the with Republicans using non-democratic means to preserve power in a changing country. Blocking the Garland nomination was extremely non-democratic. I’m concerned that a Republican Court will continue to support voter suppression efforts as they did in 2017. I don’t equate the current Republican party with “conservative” or “libertarian” values. I think Republican’s primary concern is maintaining majority status in a future in which they are not the majority.
Scott Sumner
Aug 23 2018 at 7:08pm
Airman, You said:
“it seems much more like he incorporated new knowledge (from inside an Administration) and updated his beliefs accordingly.”
That’s right, but it was the Bush administration, not the Obama Administration. Academic papers are usually written months or years before they are published.
I would also encourage you to read the article I linked to, which contains this:
“Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail” in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.”
Thomas, You said:
“There’s a lot more to Judge Kavanaugh than his stance on the issue of indicting a sitting president.”
I never even implied that there wasn’t.
Airman Spry Shark
Aug 23 2018 at 8:26pm
Yes, he learned from being inside the Bush Administration, but publicly took the position during the Obama Administration; if it was a partisan change of position, he would’ve held his tongue until the next Republican President.
Scott Sumner
Aug 23 2018 at 7:10pm
Airman, This was mentioned in the article, right before the comment on the Minnesota Law Review article:
“Kavanaugh later worked in the Bush White House, including as an associate counsel from 2001-2003 and as a staff secretary from 2003-2006 before being confirmed for a seat on the US Court of Appeals for the District of Columbia Circuit.”
Ryan Murphy
Aug 23 2018 at 7:38pm
I say this half tongue-in-cheek: what if Kavanaugh is under the influence of Posnerian pragmatism?
Alan Goldhammer
Aug 23 2018 at 8:02pm
Hypocrisy anyone??? Ever since the Bork debacle, Supreme Court appointments are political. Of course the ultimate political calculation was made by Senator McConnell who denied Merrick Garland any consideration at all. Money has flowed into the Federalist Society and no Republican President would appoint a candidate without their imprimatur.
TMC
Aug 23 2018 at 10:56pm
“ultimate political calculation was made by Senator McConnell using the Biden rule to denied Merrick Garland any consideration at all.
Hypocrisy ? yes, I’d say so.
TMC
Aug 23 2018 at 11:01pm
Well in complaining about it.
Alan Goldhammer
Aug 24 2018 at 8:15am
There was no Biden rule, only a speech on the issue of holding a confirmation hearing for a Supreme Court seat during a Presidential election year. One needs to look at it in the context of the time as the speech was made following the confirmation of Clarence Thomas. The appropriate quote from the speech,
“Given the unusual rancor that prevailed in the (Clarence) Thomas nomination, the need for some serious reevaluation of the nomination and confirmation process, and the overall level of bitterness that sadly infects our political system and this presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best.”
Calling something a “rule” when it isn’t is also hypocrisy.
Aside from the innuendos that Kavanaugh played some ‘evil’ role in the Starr investigation, I think he is qualified to be confirmed.
BC
Aug 23 2018 at 11:08pm
The role of a prosecutor, which I believe is what the Special Counsel is, is different from the role of an author of a law review article. It’s not even clear from the article quote whether Kavanaugh is expressing his views on what the law *ought* to be or what current law *is*.
One question is what it means for a judge to be “unbiased”. One definition would be that a judge looks at what the text of a law was understood by the public to have meant at the time the law was passed, regardless of what the judge personally thinks the law should say now or how the judge would prefer the meaning of the text to have changed over time. That’s quite different, for example, than saying judges should be biased towards decisions that their “empathy for what ordinary people are going through” tells them would have better “practical day-to-day implications”. It’s also different from saying that judges should have a bias towards decisions that “defend women’s rights, back LGBT rights, support Roe v. Wade and reverse Citizens United” or that judges should be biased to “stand on the side of the people” rather than wealthy donors and corporations.
I’m not even sure it’s possible for a judge to be both fair and unbiased (unless, of course, one redundantly defines fair to have the same meaning as unbiased). The judge’s notion of fairness may be different from that of the legislature that passed a law. In fact, a law need not be fair to be constitutional. Scott has explained multiple times, for example, that taxing capital gains is unfair to savers. An unbiased judge would not let his own conception of fairness interfere with his unbiased analysis of what the text of a law or the constitution says.
Lorenzo from Oz
Aug 24 2018 at 9:25pm
Roe v Wade turned SCOTUS into the ultimate moral arbiters wielding the coercive power of the law. Decisions since have reinforced that role. Of course the process of filling positions on SCOTUS has become intensely political. While they have that role, not much is going to change.
Robert EV
Aug 27 2018 at 11:33am
No, Roe v. Wade was SCOTUS telling Congress and the States that they are not allowed to legislate morality.
But yes, I agree that such a limitation on the States’ and Congress’s power did politicize SCOTUS appointments even more than before. Congress and the States do not like to be limited.
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