OPINION
09/05/2018 10:34 am ET Updated Sep 05, 2018

Withheld Kavanaugh Documents Are A Constitutional Crisis In The Making

If Brett Kavanaugh (center) is confirmed to the Supreme Court and if President Donald Trump (right) responds to a potential b
GETTY/AFP/REUTERS
If Brett Kavanaugh (center) is confirmed to the Supreme Court and if President Donald Trump (right) responds to a potential barrage of congressional subpoenas in the next Congress by making good on his threat to fire special counsel Robert Mueller (left), the new justice could be put in a very tough situation.

The Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court began Tuesday with Democrats’ strong protest against the committee’s “unprecedented” rush to confirm the judge. This protest has a compelling constitutional foundation ― based on the very sort of “originalism” Kavanaugh says he supports.

The decisive issue arose only this weekend when President Donald Trump claimed executive privilege to deny the Senate all access to records involving Kavanaugh’s service as staff secretary in George W. Bush’s White House. This unilateral assertion of presidential power is flatly inconsistent with the constitutional text and the original understanding of the framers. Further, it could easily trigger a series of events that would threaten the very foundations of our democracy.

First, some facts: From 2003 to 2006, Kavanaugh controlled the flow of papers to the Oval Office, playing the key role of intermediary between the president and the countless bureaucracies competing for his attention. This was also a time when the CIA and military had transformed Guantanamo, Abu Ghraib and covert sites throughout the world into torture chambers. Senators want to know how Kavanaugh dealt with the war crime issue in his role as staff secretary.

The question is of central importance if the Senate is to discharge its constitutional duty to “advise” the president as well as “consent” to his nominee. It is no small matter to put a war criminal onto the Supreme Court ― if the papers show that Kavanaugh did, in fact, endorse John Yoo’s notorious “torture memos” in his dealings with the president. It is no less important to reassure the country that the then-38-year-old Kavanaugh was merely a paper-pusher at the time, and that it would be wrong to condemn him retroactively now that he has returned to center stage with a 12-year track record as a seasoned jurist.

Trump’s assertion of executive privilege, however, is so sweeping that it strips the Senate of any capacity to deliberate on the issue. Rather than insist that senators read the essential documents behind closed doors, he is asserting the unilateral power to deny them all access.

Kavanaugh is sworn in during his Senate Judiciary Committee confirmation hearing for the Supreme Court on Tuesday.
Chris Wattie/Reuters
Kavanaugh is sworn in during his Senate Judiciary Committee confirmation hearing for the Supreme Court on Tuesday.

This will require senators to accept on blind faith Kavanaugh’s predictable reassurances that he was entirely uninvolved in White House discussions of the merits of the worldwide torture campaign. This is especially perilous, given the nominee’s past dealings on the matter. When his nomination as circuit judge came before the Senate Judiciary Committee in 2006, the main focus was on the nature of his engagement in White House decisions to endorse the torture of detainees in the war on terror. His unequivocal assertion that he was “not involved” in these discussions played a crucial role in winning his confirmation.

A year later, however, a Washington Post story, based on anonymous sources within the administration, reported that Kavanaugh had in fact engaged in at least one White House discussion ― leading Sen. Dick Durbin (D-Ill.) to formally request an explanation from  Kavanaugh for this apparent inconsistency. Kavanaugh, however, refused to answer.

Worse yet, there is absolutely no reason to suppose that Trump has told his staff to investigate the matter seriously. To the contrary, he has already won Senate confirmation of Gina Haspel as CIA director despite her deep involvement in a CIA torture site in Thailand during the same period Kavanaugh was serving in the White House. But at least the Senate knew what it was doing in endorsing Haspel. It is quite another thing for it to rubber-stamp the ascent of a Supreme Court justice without the least pretense to independent deliberation.

This not only represents a total repudiation of the constitutional demand that it “advise” before it “consents” to Kavanaugh’s nomination. The founders put this requirement into the text for compelling institutional reasons.

Suppose, for example, that Kavanaugh wins confirmation in the next few weeks, but that the Democrats win the House in November, and that Trump responds to a barrage of congressional subpoenas by making good on his threat to fire special counsel Robert Mueller. As legal challengers to this move race to the Supreme Court for an expedited decision, another enterprising journalist breaks the news that Kavanaugh lied again, producing unambiguous documents leaked to him by dissidents in the Justice Department or elsewhere within the administration.           

This would place Kavanaugh in an impossible situation. On the one hand, he could recuse himself from the case of Mueller v. Trump ― thereby acknowledging that there is substance to the claim he had lied to the Judiciary Committee. On the other hand, he could continue his 12-year refusal to confront the charges against him. Given his long-standing commitments to unilateral executive power, this means he would supply the fifth vote in favor of Trump’s peremptory efforts to stop Mueller’s inquiry.

From left: Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Sen. Dianne Feinstein (D-Calif.) and Sen. Patrick Lea
The Washington Post via Getty Images
From left: Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Sen. Dianne Feinstein (D-Calif.) and Sen. Patrick Leahy (D-Vt.) deliver opening statements during Kavanaugh's confirmation hearing Tuesday.

These scenarios would have different consequences for the next round of struggles between the newly elected House and the deeply embittered president. But they both would do terrible damage to the court. However Kavanaugh resolves his dilemma, the House would be right to inaugurate impeachment proceedings against the new justice ― demanding the documentary evidence, and personal testimony, that would conclusively establish whether he had lied under oath during his confirmation hearing.

Throughout the months that followed, the court would be called on to resolve a host of other controversial matters while the integrity of a swing justice was under constant challenge. This would generate a dramatic decline in public confidence in the one remaining institution that continues to sustain bipartisan support beyond the Beltway.

It would also do terrible damage to the Senate, especially if the Republicans continue to maintain a narrow majority and another Supreme Court vacancy opens up. If the majority leader rams a third super-conservative justice through on a party-line vote, this will strip the court of any pretense of impartiality and set the stage for a wrenching constitutional crisis if Democrats win the 2020 elections. If the super-Republican court strikes down the ascendant administration’s initiatives on health care or voting rights, Washington will be the scene of a confrontation that will make the court-packing crisis of 1937 seem tame by comparison.

Whatever the ultimate result, it will further convince ordinary Americans ― of all persuasions ― that dishonest politicians on the court, as well as in the presidency and Congress, are betraying them.

The time to stop this clear and present danger is now. If the president’s unprecedented assault doesn’t provoke a bipartisan Senate effort to defend its central role in the system of checks and balances, America’s constitutional democracy will be under grave threat. Both Republicans and Democrats should refuse to consider Kavanaugh’s nomination until Trump grants them access to all the relevant evidence. It is far better to leave the court’s seat vacant than to abdicate core constitutional responsibilities.

Bruce Ackerman is Sterling Professor of Law at Yale, and the author of The Decline and Fall of the American Republic.

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