And spikes one more argument against his nomination
S enate Democrats, perhaps you’ve noticed, aren’t too thrilled about the nomination of Judge Brett Kavanaugh to the Supreme Court. Over the grueling three days of Kavanaugh’s confirmation hearing before the Senate Judiciary Committee, they have accused him of a variety of evils: of being bought and paid for by a shadowy cabal of right-wing dark-money interests, of being a gun nut and a foot soldier in the War on Women and a Bush-era hack with a shadowy past, of having— horribile dictu— “Republican blood coursing through his veins.”
But out of the pack of attacks, one rises to the top as the most tiresome of them all: The accusation that Kavanaugh doesn’t believe Special Counsel Robert Mueller should be able to continue his investigation of Russian meddling in the 2016 presidential election, and was perhaps even nominated by Trump for this very reason.
Kamala Harris, freshman senator from California and early Democratic 2020 hopeful, first broached this line of argument on Tuesday, accusing Kavanaugh of “arguing that presidents should not be investigated or held accountable.” Others, like Sen. Chris Coons, seized on Kavanaugh’s 2016 comments that he wanted to “put the final nail” in the 1988 Supreme Court ruling Morrison v. Olson, which upheld the constitutionality of independent counsel investigations.
“In Morrison v. Olson, as you well know, the court upheld a restriction on the president’s power to fire the independent counsel,” Coons said. He later added: “I think the ability of a special counsel to conduct an independent investigation of the president is foundational to the rule of law.”
It all went over about as you’d expect. #Resistance tweeters rushed to battle stations to denounce a nominee whose refusal to hold the president accountable WAS—NOT—NORMAL. But this was a farce—Kavanaugh’s distaste for Morrison v. Olson is well within the judicial mainstream. The thing Kavanaugh and others have taken issue with in the past is not a special counsel like Robert Mueller’s: special counsels report to the attorney general and are thus subject to executive branch oversight. The independent counsel as upheld by Morrison v. Olson was not subject to executive oversight at all—the issue with which the late Justice Antonin Scalia took issue in his now-famous Morrison dissent, saying it robbed the president of the exercise of a “purely executive power.”
What’s more confusing about all this is that Scalia’s opinion that Morrison was bad law has long since become not only mainstream, but positively bipartisan.
“The best understanding,” Harvard Law professor Adrian Vermeule wrote in a Lawfare blog last year, “is that [ Morrison] has long since become anticanonical. When the Ethics in Government Act and its Independent Counsel mechanism were allowed to lapse without re-enactment in 1999, no mere policy judgment was at work. Instead a bipartisan judgment had formed that the Independent Counsel was a kind of constitutional Frankenstein’s monster, which ought to be shoved firmly back into the ice from which it was initially entombed.”
Senator Lindsey Graham got to the heart of this in his own questioning of Kavanaugh Thursday morning. “The situation we have before us, about Mr. Mueller, that’s not a separation of powers issue, is it?” Graham asked. “Aren’t these different facts? Mr. Mueller was appointed through Department of Justice regulations…. All I can say is that’s different, legally and factually, than the Morrison situation, where you had a statute.”
Later on Thursday, speaking with Coons again, Kavanaugh stated this clearly himself.
“I want to emphasize that the special counsel system that’s in place now is something that I’ve specifically, repeatedly and expressly said is consistent with our traditions,” Kavanaugh said. “That is the system in place. You’re talking about something that has not been in place for 20 years.”
