WASHINGTON — U.S. Senator Richard Blumenthal on Monday said he is deeply concerned by some of Supreme Court nominee Brett Kavanaugh’s past statements and writings about executive powers that suggest he favors an imperial presidency “essentially above the law with unbridled and unchecked powers.”
Blumenthal, a member of the Judiciary Committee, pointed to Kavanaugh’s belief that the 1974 U.S. v. Nixon case that forced President Nixon to turn over the Watergate tapes may have been wrongly decided.
The information was contained in a questionnaire Kavanaugh returned to the Judiciary Committee last week, which cited a 2009 statement Kavanaugh had made suggesting that the Supreme Court should not have taken up the case because it was essentially a dispute within the executive branch that fell outside judicial review. The 8-0 decision by the Court has been broadly cited for establishing that no one — including the president — is above the law.
“Where that reasoning leads to is essentially a blank check for the President of the United States to control any special counsel,” Blumenthal said. “It dooms enforcement and investigation of criminal laws against members of the executive branch no matter how high — including the President of the United States. And that is a very radical view of the Constitution as well as judicial procedure.”
Blumenthal joined Senate Democratic Leader Chuck Schumer of New York, Minnesota Senator Amy Klobuchar, and Norm Eisen, a former special counsel to President Obama, on a press call Monday to raise concerns about Kavanaugh’s views on executive power.
Blumenthal also wants additional documents released from Kavanaugh’s time in the Bush administration. The nominee spent five years in former President George W. Bush’s White House before serving 12 years on the U.S. Court of Appeals for the D.C. Circuit.
Judiciary Committee Chairman Chuck Grassley, R-Iowa, has suggested that he is not interested in such a “fishing expedition” but would instead seek relevant records from the White House in proportion to what had been requested of previous nominees.
“Many Democrats announced their opposition to this nominee before the vetting process ever began,” Grassley said in a statement. “They’ve made clear that their plan will be to obstruct and delay at every corner, and reviewing Judge Kavanaugh’s record will be no different. Rest assured, this process will be fair and thorough. At the same time, I will not allow taxpayers to be on the hook for a government-funded fishing expedition.”
Aside from routine biographical information, Kavanaugh’s questionnaire included more than 1,000 pages of previously delivered speeches, published writings, interviews and other documents.
The Associated Press first reported on a roundtable discussion that Kavanaugh participated in which was transcribed in a January-February 1999 issue of Washington Lawyer magazine on attorney-client privilege that suggested the Nixon case may have been wrongly decided. The Nixon case, he was quoted as saying, ” … 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. That was a huge step with implications to this day that most people do not appreciate sufficiently … Maybe the tension of the time led to an erroneous decision.”
Kavanaugh has offered differing views on executive power and other issues that Democrats say should be further explored before the Senate holds a confirmation vote.
In a 1998 Wall Street Journal article, Kavanaugh called on Congress to “codify the current law of executive privilege,” including the Nixon decision. And in a 2016 law review article, he cited the Nixon case among examples of the “greatest moments in American judicial history” when judges “stood up to the other branches, were not cowed, and enforced the law,” as reported by Vox News.
Blumenthal said that every White House email – whether written, received or cc’d by Kavanaugh – should be available for review. “We need every document with his name at the very least and possibly others,” he said.
Blumenthal made a similar appeal on Sunday during an appearance on MSNBC.
“So far, we have yet to see all the documents we need and Chairman Grassley has yet to provide, in my view, the kind of cooperation we need,” Blumenthal said.
Senate Democrats, including Blumenthal, have thus far refused to meet with Kavanaugh. Blumenthal said that if he were to agree to a meeting, he would first need all the documents released.
“For members of the opposing party to demand answers to questions and yet refuse to even meet with a qualified Supreme Court nominee is unprecedented. Senator Schumer should stop these political games and meet with Judge Kavanaugh,” White House Press Secretary Sarah Sanders said at Monday’s press briefing.