Nomination Must Be Paused

The Kavanaugh Nomination Must Be Paused. And He Must Recuse Himself.

The Supreme Court’s own precedent makes a strong case for why the Senate needs to know more as it assesses the current nominee.

By LAURENCE H. TRIBE, TIMOTHY K. LEWIS and NORMAN EISEN

Contemporary Supreme Court nomination hearings are always spectacles, but the one that began this week is exceptional. We face a confluence of events unique in our 229-year history: A president who is a named subject of a criminal investigation—and on whom the law may be closing in. And a nominee whose previous writings and commentary suggest he believes a sitting president is not subject to investigation or prosecution—views that in effect place the president above the law, although the nominee insists he doesn’t think anyone is beyond its reach.

The confirmation process itself has been rushed and thwarted by the majority, yielding a paltry fraction of the nominee’s White House records needed to evaluate him, with over 100,000 pages withheld based on sweeping and unsubstantiated “constitutional privilege” claims made late on the last business day before the hearing began. Then, over 40,000 of the nominee’s documents were released to the Senate with no real time for review on the evening before the hearing.

As important as the broken process is this stark fact: Never before has a president made a Supreme Court nomination with so many matters of deep personal importance to that president poised to come before the court. A president facing existential legal jeopardy cannot be permitted to pick his own justice to decide his case—especially a justice whose apparent views of presidential authority are expansive to say the least, who is deeply beholden to that president, and who seems likely to hold the decisive vote. As we explain in a new report out today, applying basic rule-of-law precepts and leading Supreme Court precedents to these unique circumstances identifies a specific range of matters from which the nominee must commit to recuse himself. The hearings must be paused to allow proper production and review of the documentary record followed by full consideration of the relevant facts and controlling law.

The constitutional principles mandating Kavanaugh’s recusal were given form in three recent Supreme Court decisions. The first, Caperton v. A.T. Massey Coal Company, Inc., concerned recusal obligations of a newly elected West Virginia state supreme court judge in an appeal of an award of damages against the company of a coal baron. The businessman had provided pivotal support to the judge’s campaign while the lawsuit was pending in a lower court. Emphasizing the “significant and disproportionate influence” of the coal baron in placing the judge on the court, the U.S. Supreme Court required recusal based on “serious risk of actual bias” that arises when “a man chooses the judge in his own cause.”

Sound familiar? It should. It’s eerily similar to the Trump-Kavanaugh nomination, where, to put it mildly, President Donald Trump played a singular role in selecting a judge for a court that likely will have the final word on numerous legal issues in which Trump’s personal stake could not be higher, such as whether a president can be criminally indicted, can be charged with obstructing justice, or can pardon himself.

A later case went even further. In Williams-Yulee v. Florida Bar, the Supreme Court recognized a separate and independent interest in protecting against the perception of bias in our courts. That case stands for the principle that, beyond the rights of the parties to any individual case, the government and the people it represents have a compelling interest in the impartiality of the court.

A third case, Williams v. Pennsylvania, found that a judge’s work before he took the bench could unconstitutionally compromise his later judgment and require recusal. While that case presented a very different factual posture, its concerns apply here.

How can we adequately protect the compelling interest in impartiality without the full record and sufficient time to evaluate it, when those proposing the judge’s confirmation persist in hiding vital information about how he might judge the president who named him? Kavanaugh served in high-level White House positions when the Bush administration was pressing to expand executive powers, and records from that period would provide critical information about his potentially decisive views on these matters. The Senate majority has abdicated its oversight responsibilities by rushing the confirmation hearing process before receiving adequate explanation of the president’s document privilege claims—and by refusing even to request White House records from the bulk of Kavanaugh’s time at the White House.

The right thing to do is to pause the hearings so the Senate can discharge those responsibilities. Perhaps a compromise can be reached on the withheld documents, including explaining why the privilege applies to particular documents, as is commonly done when privileges are asserted. Such a hiatus would allow the tens of thousands of documents that have suddenly been dumped on the Senate’s doorstep to be properly studied, the other unprivileged documents produced, and the recusal issues properly addressed.

If the Senate instead pushes forward with the nomination under these circumstances, it will exacerbate the dangers for our democracy already posed by Trump’s attacks on the rule of law and on those charged with neutrally implementing it—and by his efforts to politicize law enforcement, demonize the media, and attack our system of checks and balances. The hundred year battle for democracy on both sides of the Atlantic teaches that democracy rises and falls in just such accumulations of pivotal moments. Even a potent remedy like the impeachment power has its limits as a weapon in that battle. These lessons must be heeded today.

If, as the media is reporting, Kavanaugh will not commit to recuse from all matters relating to the president’s personal legal exposure, he will be offending the Constitution’s design—as one of us has recently explained—before he ever sets foot on the Supreme Court. Should Congress insist on proceeding nonetheless, the perception of bias will be extreme.

If the Senate and the president elect that course, they should not expect that the American people will forget who made that choice or lessen their resolve to fight for the rule of law they have long enjoyed. Quite the opposite: Forcing the judge through under these circumstances will only redouble the demand for accountability. As history reminds us, that outcome can be delayed but not denied.