As Nixon learned, Congress will not abide a president who defies its subpoenas.
The subpoenas against Nixon demanded 147 unedited tape recordings of presidential conversations; a list of meetings and telephone conversations for five specific, suspicious periods between 1971 and 1973; and copies of any handwritten presidential notes pertaining to the Watergate charges.
In response, Nixon asserted that the Judiciary Committee already had the “full story of Watergate,” and did not need to have further materials. He produced none of the 147 unedited transcripts that had been requested. (That bundle of withheld tapes included the critical June 23 tape that, when it was finally released, ultimately drove the president from office, and that Nixon had listened to many weeks earlier.)
.. In response, the committee approved Article III. It charged that the president “has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee.” Instead, it read, Nixon had substituted his own views as to what materials were necessary for the committee to render its judgment, and had interposed the powers of the presidency against the lawful subpoenas of the House of Representatives. His refusal to comply interfered with the committee’s ability to fulfill its constitutional duties and was, therefore, subversive of constitutional government.
.. President Trump has taken a similar approach to Nixon’s, declaring that the Mueller report should mean the end of any related congressional investigations, and that he would defy any subpoena that came from them. In response, congressional leaders have said they would take the matter to court.
That’s a good thing to do — to have the courts reaffirm what is already clear in the law — and Congress will probably win. But a court case could take months to conclude, playing into the president’s apparent strategy of running out the clock.
Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.
.. His confirmation would represent the culmination of a decades-long project of the conservative legal movement
.. Democratic senators sought assurances, for instance, that Judge Kavanaugh was not “a human torpedo being launched at the Mueller investigation,” as Sheldon Whitehouse, Democrat of Rhode Island, put it.
They wanted a promise that Judge Kavanaugh would be independent of Mr. Trump, asking him, for instance, to promise to recuse himself from cases arising from Robert S. Mueller III’s investigation of the president.
Judge Kavanaugh refused. Making such a commitment, he said, would jeopardize his judicial independence.
.. Judge Kavanaugh’s general strategy was summarized in a 1981 memorandum prepared by a young White House lawyer who had been assigned the job of preparing Justice Sandra Day O’Connor for her confirmation hearings... The memo’s author was John Roberts, and he took his own advice at his 2005 confirmation hearings to become chief justice of the United States... he demonstrated a seemingly complete command of Supreme Court precedent.
He was knowledgeable but not glib, effortlessly summoning the names and summarizing the details of old decisions without indicating how they would apply to new controversies.
.. Judge Kavanaugh was less sure-footed when the questions turned from the law to his own actions.
.. “The point of having public hearings is so relevant issues can be vetted, not just for the senators but for all of us. I fear that this hearing may represent a move away from that, and back to the days of confirmations as back room deals.”
.. He used a rare colorful phrase in refusing to answer questions about Mr. Trump’s attacks on the judiciary. “I’m not going to get within three ZIP codes of a political controversy here,” he said.
“The Democrats made a fairly strong case that Judge Kavanaugh is very partisan and loyal to the president,” he said. “The nominee’s refusal to criticize the president in his attacks against the judicial branch didn’t help his case.”
.. “Justice Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan wrote.
- If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote.
- If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.
Professor Kagan explained what had counted as too specific: “Roughly, anything that might have some bearing on a case that might someday come before the court.” She also described what had been too general: “Roughly, anything else worthy of mention.”
.. his calculated praise for United States v. Nixon, the 1974 decision in which the Supreme Court unanimously ordered President Richard M. Nixon to comply with a trial subpoena to turn over Oval Office recordings. The decision would, of course, be the leading precedent if a dispute arising from the Mueller investigation reached the Supreme Court.
.. But Judge Kavanaugh ranked it among the Supreme Court’s greatest hits.
Those included, he said, just three others:
- Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional;
- Youngstown Sheet and Tube Company v. Sawyer, the 1952 decision rejecting President Harry S. Truman’s attempt to seize the nation’s steel mills to aid the war effort in Korea; and
- Marbury v. Madison, the 1803 decision that established the basis for the Supreme Court’s power of judicial review.
.. But where Judge Kavanaugh responded to questions about Roe with equivocation, he embraced the Nixon case.
“It was one of the greatest moments because of the political pressures of the time,” he said. “The courts stood up for judicial independence in a moment of national crisis.”
Still, he drew the line at saying whether, say, a grand jury subpoena calling for Mr. Trump’s testimony should be enforced. That would, he said, require him to answer a hypothetical question.