Posted by Curt on 21 July, 2018 at 11:44 am. 2 comments already!


How can you tell that Democrats are flailing in their efforts to stop Judge Brett Kavanaugh’s Supreme Court nomination, and don’t currently have the votes or a good plan to do so? Let’s look at the arguments they are trotting out right now. First up, Cory Booker:

Democratic Sen. Cory Booker (N.J.) is calling on Supreme Court nominee Brett Kavanaugh to recuse himself from any cases that might involve special counsel Robert Mueller‘s investigation.

“To avoid the prospect that President Trump could effectively choose a judge in his own case, I request that you pledge to recuse yourself from any cases related to the Special Counsel’s investigation and any that otherwise may immediately impact the President and his associates as it relates to the ongoing criminal investigation should you be confirmed,” Booker said in a letter to Kavanaugh on Friday.

“The American public must have full confidence that the integrity of any decisions handed down by the Supreme Court on these matters will not be tainted by any impropriety or the appearance of impropriety from the President’s selection of you.”

This is ignorant of history. Justices have never recused themselves just because of who appointed them.

Neither of Bill Clinton’s Supreme Court appointees, Ruth Bader Ginsburg and Stephen Breyer, recused themselves in the 1997 Clinton v. Jones case, which personally involved the president and whether he could be forced to participate in a civil lawsuit while in office. Breyer had been nominated just eleven days after the Paula Jones lawsuit was filed, and after Clinton was already facing an Independent Counsel investigation. In 1998, when the Court decided an appeal involving Independent Counsel Kenneth Starr’s “Travelgate” investigation – and ruled in favor of Clinton by upholding the attorney-client privilege for notes of a conversation with former White House Counsel Vince Foster before his 1993 death – Breyer and Ginsburg did not recuse; instead, they sided with Clinton. Also in 1998, the Court declined to hear appeals by both Clinton and Starr from D.C. Circuit decisions involving the attorney-client and executive privileges applying to, among others, grand jury testimony by White House Counsel Bruce Lindsey and Clinton’s Secret Service detail. Not only didn’t Breyer and Ginsburg recuse, but they dissented together from the rest of the Court’s refusal to take Clinton’s appeal from the Lindsey ruling. Judge Kavanaugh will remember these precedents well; he was involved in litigating most of them, and personally argued the Vince Foster privilege case before the Court.

Nor was this an unusual decision by Breyer and Ginsburg. None of Richard Nixon’s appointees (Chief Justice Warren Burger and Justices Harry Blackmun and William Rehnquist) recused themselves from the landmark United States v. Nixon decision in which Nixon tried to resist an order to turn over the famous Oval Office tapes. Burger wrote the opinion ruling against Nixon.

Justices do sometimes recuse themselves from cases where they were the judge in a lower court decision (Kavanaugh is expected to recuse from multiple cases now on appeal from the D.C. Circuit in a variety of areas of law), and in some cases when they were involved in a decision by the president or other officials under challenge. But even those rules have not always been consistently enforced: many Justices have ruled on controversies involving presidents they had served as Attorney General, Solicitor General, or in other Executive Branch capacities. For example, the notorious Korematsu decision upholding Franklin D. Roosevelt’s detention of Japanese-Americans was decided by a Court consisting almost entirely of FDR appointees, including Stanley Reed (FDR’s Solicitor General until 1938), Felix Frankfurter (an FDR advisor until 1939), William O. Douglas (FDR’s head of the Securities and Exchange Commission until 1939), Frank Murphy (FDR’s Attorney General until 1940), Robert Jackson (Reed’s successor as Solicitor General and then FDR’s Attorney General until mid-1941), and Wiley Rutledge (an FDR appointee to the D.C. Circuit who was elevated to the Court in 1943, after the 1942 internment order).

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