Kavanaugh: Watergate tapes decision may have been wrong

Supreme Court nominee Brett Kavanaugh. (AP)
Updated 22 July 2018
0

Kavanaugh: Watergate tapes decision may have been wrong

  • Kavanaugh has written some 300 rulings as an appeals court judge and has a record in the George W. Bush White House as well as in Starr’s probe of Clinton
  • Kavanaugh was among six lawyers who took part in the discussion in the aftermath of independent counsel Kenneth Starr’s investigation that led to the impeachment of President Bill Clinton

WASHINGTON: Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.
Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in US v. Nixon, which marked limits on a president’s ability to withhold information needed for a criminal prosecution, may have come out the wrong way.
A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.
Kavanaugh’s belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the ongoing investigation into Russian interference in the 2016 election.
“But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.
At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. “Should US v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.
Kavanaugh was among six lawyers who took part in the discussion in the aftermath of independent counsel Kenneth Starr’s investigation that led to the impeachment of President Bill Clinton. Kavanaugh had been a member of Starr’s team.
The discussion was focused on the privacy of discussions between government lawyers and their clients.
Philip Lacovara, who argued the Watergate tapes case against Nixon and moderated the discussion, said Kavanaugh has long believed in a strong presidency. “That was Brett staking out what has been his basic jurisprudential approach since law school,” Lacovara said in a telephone interview Saturday.
Still, Lacovara said, “it was surprising even as of 1999 that the unanimous decision in the Nixon tapes case might have been wrongly decided.”
The article was among a pile of material released in response to the committee’s questionnaire. Kavanaugh was asked to provide information about his career as an attorney and jurist, his service in the executive branch, education, society memberships and more.
It’s an opening look at a long paper trail that lawmakers will consider as they decide whether to confirm him. The high court appointment could shift the court rightward for years to come.
A longtime figure in the Washington establishment, Kavanaugh acknowledged in the questionnaire that he had joined clubs that he said once had discriminatory membership policies.
“Years before I became a member of the Congressional Country Club and the Chevy Chase Club, it is my understanding that those clubs, like most similar clubs around the country, may have excluded members on discriminatory bases that should not have been acceptable to people then and would not be acceptable now,” he wrote.
Asked to list the 10 most significant cases for which he sat as a judge, Kavanaugh cited nine in which “the position expressed in my opinion (either for the court or in a separate writing) was later adopted by the Supreme Court.”
The 10th regarded a man fired by mortgage giant Fannie Mae after he filed a discrimination complaint that alleged a company executive had created a hostile work environment by calling the worker “the n-word.” Kavanaugh said he included it “because of what it says about anti-discrimination law and American history.”
Kavanaugh said an appeals court panel on which he sat reversed a lower court’s ruling in favor of Fannie Mae. He said he joined the majority opinion in 2013 and wrote a separate concurrence “to explain that calling someone the n-word, even once, creates a hostile work environment.”
In the questionnaire, Kavanaugh cited his opinion in that case: “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.’” But it was one of the relatively few discrimination cases in which Kavanaugh sided with a complaining employee.
Offering a timeline leading to his nomination, he said White House counsel Don McGahn called him the day Justice Anthony Kennedy announced his retirement, June 27, and they met the next day. Trump interviewed him July 2, with McGahn present, and Vice President Mike Pence interviewed him July 4. Kavanaugh spoke by phone with the president on July 8 and that evening met at the White House with Trump and his wife, Melania, where he said he was offered and accepted the nomination.
Asked whether anyone sought assurances from him about the stand he might take on a specific case or issue, he answered “No.” He also said he had not offered any indication how he might rule as a justice.
Kavanaugh has written some 300 rulings as an appeals court judge and has a record in the George W. Bush White House as well as in Starr’s probe of Clinton.
Republican Sen. Chuck Grassley of Iowa, the committee chairman, said the questionnaire was “the broadest and most comprehensive” ever sent by the committee and he welcomed “Judge Kavanaugh’s diligent and timely response.”
The nominee told lawmakers he registered for the Selective Service in his younger days but did not serve in the armed forces.
Years before he became a judge and compiled a solidly conservative record, Kavanaugh also reflected on how past nominees have sometimes disappointed partisans who wanted a more liberal or conservative justice. Speaking on CNN in 2000, he was responding to a question about whether the next president could “pack the court” with like-minded justices.
Presidents often prefer to avoid bloody confirmation fights, he said in a transcript that was released Saturday. “We’ve seen that time and again, to pick the consensus pick who turns out to be more moderate and thus less predictable, that’s what’s happened,” Kavanaugh said.


No-deal Brexit looms as race for new British PM wraps up

Updated 17 July 2019
0

No-deal Brexit looms as race for new British PM wraps up

  • Many lawmakers, business community fear dire economic outcome
  • A majority of lawmakers in the House of Commons are opposed to a no-deal Brexit

LONDON: The battle to become Britain's next prime minister enters the home straight on Wednesday with both candidates hardening their positions on Brexit, putting the future government on a collision course with Brussels.
Ex-London Mayor Boris Johnson, the favourite to replace Theresa May, and Foreign Secretary Jeremy Hunt, are now both referring to Britain's departure with no overall deal in place as a realistic prospect.
The business community and many lawmakers fear dire economic consequences from a no-deal Brexit, which would lead to immediate trade tariffs for some sectors including the automotive industry.
Johnson and Hunt are taking part in a final question-and-answer session later on Wednesday before the result of the vote by Conservative Party members is announced next Tuesday.
The new party leader will be confirmed as prime minister by Queen Elizabeth II on the following day.
Britain has twice delayed its scheduled departure from the European Union after 46 years of membership as May tried and failed to get her deal with Brussels through parliament.
The two candidates vying to replace her have vowed to scrap a "backstop" provision in the agreement that Brussels insisted upon to keep the Irish border open.
Their latest attacks on the measure during a debate on Monday prompted a plunge in the value of the British pound.
The currency fell again Wednesday to its lowest level against the US dollar in over two years.
"The tougher stance from both Boris Johnson and Jeremy Hunt in terms of their rhetoric on Brexit is clearly weighing on the pound," said market analyst Neil Wilson.
"Make no mistake, this decline in the pound is down to traders pricing in a higher chance of a no-deal exit."
The backstop has proved a key stumbling block in the Brexit process.
The measure would keep open the post-Brexit border between British-ruled Northern Ireland and EU member the Republic of Ireland whatever the outcome of negotiations over the future relationship between London and Brussels.
Johnson announced early in his campaign that he would not sign up to it and would pursue a no-deal Brexit if required, leading his opponent to follow suit.
However, European leaders have been adamant that the backstop must remain a part of any divorce deal, raising the prospect of a no-deal Brexit.
German Defence Minister Ursula von der Leyen, who will become European Commission president in November, said the draft withdrawal agreement provided "certainty".
She also broached a possible further delay to Britain's departure, saying: "I stand ready for a further extension of the withdrawal date, should more time be required for a good reason."
Johnson has pledged that under his leadership, Britain will leave "do or die" on the current deadline of October 31.
A majority of lawmakers in the House of Commons are opposed to a no-deal Brexit, but attempts to pass legislation blocking the scenario have failed.
Reports this week suggested Johnson is considering plans to end the current session of parliament in early October, leaving MPs powerless.
Finance Minister Philip Hammond said Wednesday it was "terrifying" that some Brexit supporters thought that no deal would leave Britain better off.
And in a speech in London, May said the "best route" for Britain was to leave with a deal.
Delivering her last major address, she railed against the trend towards "absolutism" in Britain and abroad, and urged her successor to compromise.
"Whatever path we take must be sustainable for the long term, so that delivering Brexit brings our country back together. That has to mean some kind of compromise," she said.