If you thought the appointment of another Supreme Court justice would be free of funny business, then you just don’t know President Trump. According to reports on Tuesday, the entire who-will-he-pick drama of the last week was basically a show, since Trump was all but sure that Brett M. Kavanaugh would be the successor to Justice Anthony M. Kennedy, and that the other “finalists” were interviewed only to give the impression that the president was engaging in a thorough search among multiple candidates.
That’s the kind of PR deception we’ve come to expect from this administration. But much more significant, it appears that Kennedy may have communicated to the White House that should the justice retire, one potential successor he’d like to see take over was his former law clerk, Kavanaugh, who has now been nominated.
Such an arrangement — literal or implied — wouldn’t be illegal. It is, however, utterly reprehensible. And it shows how degraded any and all ethical standards have become in the Trump era.
We need to proceed carefully, because we’re getting more reports by the hour, most of them based on anonymous administration sources describing what went on behind the scenes. Early this morning, NBC reporter Leigh Ann Caldwell posted on Twitter that “Kennedy and Trump/WH had been in negotiations for months over Kennedy’s replacement.” Then she walked the story back a bit:
Transactional or not, it would certainly be useful to know more about these “talks” between Kennedy and the White House. Who was he talking with, and for how long?
This morning on CNN, White House spokesperson Raj Shah was asked directly and repeatedly whether, prior to announcing his retirement, Kennedy spoke with the president or anyone else in the White House, and whether Kennedy made clear his preference for Kavanaugh. Multiple times, Shah dodged the question, saying things like “I’m not going to read out private conversations that Justice Kennedy had with either members of the White House or the president.”
In any case, the idea that a Supreme Court justice would provide the president with “a list of acceptable replacements” is itself not just unusual but a trashing of decades of norms about how the judicial and executive branch are supposed to deal with each other. That is true even if there was no quid pro quo (I’ll retire if you replace me with the person I want) and the communication started after Kennedy decided to retire.
On Tuesday, I spoke with Jeff Hauser, a former Justice Department official who runs the Revolving Door Project at the Center for Economic and Policy Research, who noted that, since the failure of Abe Fortas’ nomination to be chief justice in 1968 (Fortas, a friend of President Lyndon B. Johnson, had numerous ethical problems), a norm has been in place limiting communication between justices and the executive branch. It’s particularly important given how often the court has to rule not just on issues on which the administration takes a position, but on cases directly impacting the president’s powers and privileges.
Take, for instance, the travel-ban case, which the court was considering in the days leading up to the end of the Supreme Court term and Kennedy’s retirement. The case hinged on whether Trump’s own words, showing that he intended it as a ban on Muslims, should be believed, or whether they could be ignored. Kennedy and the other justices decided the latter. “That was so much about the character of Donald Trump as an individual,” says Hauser, “that having any sort of communications, indirect or direct, with the president while you’re considering the legitimacy of his Muslim ban, that just strikes me as completely unethical behavior by Kennedy, if that happened.”
But as we’ve learned in so many areas, there are rules and there are norms, and violating norms is possible if you decide you don’t care about them. “The judiciary is not supposed to be involved in choosing the judiciary,” says Hauser. “Sometimes we don’t have rules to prevent the most obvious misconduct because it’s just considered to be beyond the pale. But in 2018, we need to codify every single thing that is beyond the pale.”
So imagine you’re a federal judge, say on an appeals court. You always knew your seat is valuable, and the White House would be happy to have you retire so it could appoint a successor to its liking. But now you know you might have some room to negotiate. Why not send the White House a message that you’re considering moving on, and see what the administration can offer you?
You’d be careful to make sure you weren’t asking for anything like an outright bribe, but there might be some room to maneuver. Let’s say your nephew just graduated law school, and he’s a fine young man with lots of potential, plus the ability to stay on the courts for another 50 or 60 years. Would the White House consider making him your replacement? It well might.
To be clear, I’m not saying anything this questionable happened in Kennedy’s case. It may turn out that communications between Kennedy and the White House only happened after he decided to retire (which would be questionable, but not as bad as it might have been). Perhaps when Kavanaugh was added to Trump’s list of potential justices last November, it was a signal to Kennedy that he could move on, but that there was no direct understanding between them.
Still, if any communication did happen, previous norms of judicial independence are being undermined. But that’s what happens when Donald Trump is president. Everyone and everything, in one way or another, gets corrupted eventually.