As confirmation hearings for Supreme Court nominee Brett Kavanaugh get underway in the Senate Judiciary Committee, Democrats will press him about his views on executive power. They will ask under what circumstances he would recuse himself from matters pertaining to President Trump’s possible criminal conduct and handling of the Russia investigation.
As to recusal, we can expect Kavanaugh to say something along the lines of “It’s my obligation, if confirmed, to hear all cases that come before the court. If an issue arises, I will abide by my ethical obligations.” This is hooey, because there are no ethics guidelines for Supreme Court judges. None. Zero.
When Attorney General Jeff Sessions told the Senate Judiciary Committee that he’d have to follow Justice Department guidelines, that meant something. (And to his credit, he then recused.) But if he didn’t have such guidelines or they were concealed from the public, the Senate couldn’t have accepted such a promise.
The reason for the lack of ethical guidelines is attributable to Chief Justice John Roberts’s overly generous and self-serving position on the matter. He has asserted that Congress cannot implement ethics rules because the Supreme Court is the only court specifically authorized in the Constitution, and judges are guaranteed lifetime tenure. He also resists the notion that the court should formally adopt all the ethics rules applicable to lower court judges.
There is no higher court to review a Justice’s decision not to recuse in a particular case. This is a consequence of the Constitution’s command that there be only “one supreme Court.” The Justices serve on the Nation’s court of last resort. As in the case of the lower courts, the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case. Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.
But this seems to be the lesser of two evils. The greater damage is that conflicted judges would rule on cases and thereby undermine the integrity of the court. There is a reason for the adage that one cannot be a judge in his own case.
Moreover, Roberts’s reasoning is flawed. When a lower court judge recuses himself, he is not obviating the lifetime appointment. Recusal (i.e. adherence to published, specific ethical guidelines) should not be confused with the term of service. As Roberts notes, justices already voluntarily comply with rules regarding conflicts based on financial interest (e.g., ownership of stock in a company that comes before the court). The constitutional guarantee of a lifetime appointment isn’t damaged by that practice. Formally adopting the rest of the ethical guidelines applicable to lower courts should be a no-brainer.
But Roberts’s view is that Supreme Court justices should not necessarily recuse themselves in situations when a lower court should do so:
Although a Justice’s process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case. …
I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.
The chief justice’s admiration for the judgment of his colleagues is lovely but irrelevant. It’s the American people and the rule of law that need protection. Because there is no review of the Supreme Court’s decisions, there is more reason to avoid even the appearance of a conflict. (Consider the following situation in which Kavanaugh might choose to stay on the court, thereby undermining the appearance of impartiality: Federalist Society attorneys who reportedly were instrumental in adding Kavanaugh to the Supreme Court list might be known to Kavanaugh but not the rest of us. Would he recuse in a case in which those attorneys represented a party that came before the court? How would we even know which parties are at issue?)
In a new paper analyzing these issues, Laurence H. Tribe, Timothy Lewis (a former judge appointed by a Republican president) and Norman L. Eisen conclude that “when the justice was nominated with an apparent eye on how he would resolve a matter that appears to be bound up with the president’s personal fate and that is already looming on the legal horizon at the time of the nomination, and when the nominee’s speeches and writings distinguish him as particularly solicitous of presidential prerogative on the very issues likely to come before him in the foreseeable future, the scales surely tip in favor of recusal.”
They point to clear precedent that recusal is advisable when the judge is appointed at a time when issues are pending against the person who nominated him to avoid the appearance of a conflict. This is what then-Chief Justice William H. Rehnquist did in the seminal Watergate case, U.S. v. Nixon. At issue are the due-process rights of litigants who come before Kavanaugh and the legitimacy of the Supreme Court.
If Kavanaugh sits on a case arising from the ongoing Russia investigation and rules in the president’s favor, there would be a permanent cloud over him, the decision and the Supreme Court on a matter of extreme constitutional urgency. The American people would have every reason to believe that Kavanaugh’s views on various matters pertaining to the president’s current legal peril were the reason or one of the reasons he was selected for the court. He cannot even unwittingly be party to a scheme whereby Trump gets to pick the justice whose vote could exonerate him or insulate him from the rule of law.
Three options exist. Kavanaugh can make crystal clear that his views on executive power (e.g. whether a president can commit obstruction of justice or must respond to a subpoena). Alternatively, he can definitively state that he will not sit on such cases stemming from the ongoing Russia investigation — a promise that will extend to a handful of cases at most, involving one president, during a tenure on the court that could run for decades. His third option is to play the “trust me” game and refuse to tip his hand either on executive power or recusal.
Kavanaugh might think that it’s improper to signal his recusal intentions, but if he refuses to give a definitive answer, the Senate should not confirm him unless and until the possible issues arising directly from Trump’s participation in possible federal crimes are resolved. Senators should not accept as a satisfactory answer to a looming constitutional crisis a reply that amounts to “I’ll let you know.” The Senate in that event would have no choice but to head off a potential constitutional crisis and decline to confirm, at least until the Mueller investigation and its attendant matters regarding the president are no longer at issue.
Candidly, Kavanaugh’s refusal to recognize the severity of the problem by giving an unequivocal response would tell senators that he lacks the moral rectitude for the job. If he cares more about getting on the court than the court’s enduring legitimacy, he should not be confirmed.