Those wondering how President Donald Trump‘s Supreme Court nominee Judge Brett Kavanaugh would handle major issues that he could face if confirmed might get some insight from a newly discovered 2016 interview he did with the American Enterprise Institute. His words left the impression that, if given the chance, he’d make major moves when it comes to not only abortion, but also investigations like Special Counsel Robert Mueller‘s probe.
At the 47:17 mark in the video above, an audience member asked Kavanaugh about his approach to stare decisis–the doctrine of following court precedent–and when it’s appropriate to stray from past decisions. This is a key factor in abortion cases, because Roe v. Wade set the precedent that abortion rights are protected by the Constitution; a precedent that has been upheld in subsequent cases. In order to overturn it, the Supreme Court would have to go against the tradition of stare decisis.
Kavanaugh danced around the question at first, saying that stare decisis should be the “starting point” when approaching an issue, but it certain cases it’s appropriate to set it aside.
“I think it’s really hard to have a set formula,” he said. He then went on about the types of situations where the Court seems to go against stare decisis:
When it’s really wrong and has really significant practical effects, and there hasn’t been reliance interests of the kind you would have with a property or contracts decision, that seems to be a descriptive of when the Court will overrule something, but is that a formula that binds? Is that a formula that tells you in advance what justices of different stripes, when to do it, and when to not? Not really.
The response was pretty boring, but things got very interesting very quickly.
“Can you think of a case that deserves to be overturned?” moderator Paul Gigot of the Wall Street Journal asked at the 50:43 mark of the video.
“Yes,” Kavanaugh said with a smile, then breaking out into laughter, along with the audience. While he didn’t use the words “Roe,” “Wade,” or “abortion,” those attending the event held by the conservative think tank seemed to infer that this is what he was talking about, as it’s pretty much the most controversial case that people talk about being overturned, should the Court have the votes for it.
“Would you volunteer one?” Gigot pressed, appearing to be in on the joke.
“No,” Kavanaugh said, still laughing.
What happened next was arguably just as notable.
Just as the moderator was about to move on to the next question, Kavanaugh said he’d identify one example of a case he’d overturn, but it was clearly not what everyone in the room had been thinking.
“Actually, I’m gonna say one. Morrison v. Olson,” he said. In that 1988 case, the Supreme Court ruled that the Appointments Clause of the Constitution does not bar the appointment of an independent counsel for investigating government officials under the independent counsel law that later expired in 1992, with a subsequent version expiring in 1999.
“It’s been effectively overruled,” Kavanaugh said, “but I would put the final nail in it.”
This is consistent with Kavanaugh’s writings about whether or not a sitting president should have to face investigations of allegations against him, let along indictments or lawsuits. Current belief is that president’s should not face criminal charges while still in office (only impeachment), and that courts have discretion regarding civil complaints. Kavanaugh would go beyond this, believing that even investigations–like Special Counsel Robert Mueller’s Russia probe–would have to wait before looking into a president’s alleged wrongdoing.
This could have severe repercussions, should Kavanaugh be confirmed to the Supreme Court and the issue of Mueller’s investigation goes before the Court. While Mueller’s appointment is not under the old independent counsel law, but newer special counsel provisions, Kavanaugh’s sentiment would appear to be the same.
While much of the probe deals with the Trump campaign’s possible ties to Russian interference with the 2016 election (not President Trump in particular), that investigation also touches on whether President Trump obstructed justice by trying to impede the investigation.
With Kavanaugh on the Supreme Court, Trump would appear to have at least one person in his corner–if the question of the constitutionality of Mueller’s probe goes before the Court.
[Image via American Enterprise Institute]
This is an opinion piece. The views expressed in this article are those of just the author.