Washington
\nSupreme 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.<\/p>\n
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\u2019s ability to withhold information needed for a criminal prosecution, may have come out the wrong way.<\/p>\n
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 yesterday.<\/p>\n
Kavanaugh\u2019s belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy.<\/p>\n
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.<\/p>\n
At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. \u201cShould US v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,\u201d he said.<\/p>\n
Kavanaugh was among six lawyers who took part in the discussion in the aftermath of independent counsel Kenneth Starr\u2019s investigation that led to the impeachment of President Bill Clinton. Kavanaugh had been a member of Starr\u2019s team.<\/p>\n
The discussion was focused on the privacy of discussions between government lawyers and their clients.<\/p>\n
Philip Lacovara, who argued the Watergate tapes case against Nixon and moderated the discussion, said Kavanaugh has long believed in a strong presidency.<\/p>\n
\u201cThat was Brett staking out what has been his basic jurisprudential approach since law school,\u201d Lacovara said in a telephone interview yesterday.<\/p>\n
Still, Lacovara said, \u201cit was surprising even as of 1999 that the unanimous decision in the Nixon tapes case might have been wrongly decided.\u201d Kavanaugh allies pointed to a recent, more favourable assessment of the Nixon case.<\/p>\n
\u201cWhether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. That takes backbone, or what some call judicial engagement,\u201d Kavanaugh wrote in a 2016 law review article in which he referred to several landmark Supreme Court cases.<\/p>\n
The 1999 article was among a pile of material released in response to the committee\u2019s 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.<\/p>\n
Asked to list the 10 most significant cases for which he sat as a judge, Kavanaugh cited nine in which \u201cthe position expressed in my opinion (either for the court or in a separate writing) was later adopted by the Supreme Court.\u201d<\/p>\n
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 \u201cthe n-word\u201d.<\/p>\n
Kavanaugh said he included it \u201cbecause of what it says about anti-discrimination law and American history.\u201d Kavanaugh said an appeals court panel on which he sat reversed a lower court\u2019s ruling in favour of Fannie Mae.<\/p>\n
He said he joined the majority opinion in 2013 and wrote a separate concurrence \u201cto explain that calling someone the n-word, even once, creates a hostile work environment.\u201d<\/p>\n
In the questionnaire, Kavanaugh cited his opinion in that case: \u201cNo other word in the English language so powerfully or instantly calls to mind our country\u2019s long and brutal struggle to overcome racism and discrimination against African-Americans.\u2019\u201d But it was one of the relatively few discrimination cases in which Kavanaugh sided with a complaining employee.<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
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