What to worry about when you worry about Kavanaugh
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CNN and others are making a big deal of a newly discovered clip in which Brett Kavanaugh, Donald Trump’s second nominee to the Supreme Court, criticizes precedent upholding the independent counsel provision of the now-lapsed Ethics in Government Act, the lWhat to worry about when you worry about Kavanaugh
CNN and others are making a big deal of a newly discovered clip in which Brett Kavanaugh, Donald Trump’s second nominee to the Supreme Court, criticizes precedent upholding the independent counsel provision of the now-lapsed Ethics in Government Act, the law inspired by President Richard Nixon’s misdeeds in office. Thing is, that’s not a controversial position. An independent counsel, as distinguished from a special counsel like Robert Mueller, was, once appointed, a creature totally outside of the Department of Justice, but possessed of all of its powers and authority. That arrangement was, to put it mildly, problematic as a matter of the separation of powers. Justice Elena Kagan’s said much the same thing: [Kagan] called Supreme Court Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), in which he argued that the Independent Counsel Act should be struck down because it was a wolf in wolf’s clothing, “one of the greatest dissents ever written and every year it gets better.” Given that the legislation in question’s defunct and over ensuing decades federal officials essentially reached consensus opposing an independent counsel arrangement, Kavanaugh’s decision to name Morrison v. Olson was hardly sensational. He made the comment at an event for conservatives two years ago, and at the time, it seemed a dead issue. That said, I’ll concede that Kavanaugh singling out Morrison v. Olson is significant. Why name that decision instead of just dodging the question of “what precedent would you overturn” as prospective nominees usually do? It could well signal hostility to any perceived reallocation of executive power, not to mention additional proof—on top of his 2009 law review article—that Kavanaugh opposes any and all investigation of the president. The more telling part of the video clip is Kavanaugh’s slippery discussion of stare decisis, the principle that a court should almost always adhere to precedent. (It’s Latin for “to stand by things decided.”) If that principle were absolute, Kavanaugh said, “we’d still have some horrible decisions on the books.” The Roberts court’s conservatives have shown almost no respect for stare decisis when it would interfere with a desired outcome. Just this June they overturned critical precedent on labor, taxation, and, of course, the internment of Japanese-Americans; they sided with corporations against workers and upheld Trump’s Muslim Ban. By “horrible decision,” Kavanaugh could well have meant Roe v. Wade. Read more