National Constitution Center CEO Weighs In On Kavanaugh Senate Hearings

NPR's Ari Shapiro speaks with Jeffrey Rosen, president and CEO of the National Constitution Center, about Brett Kavanaugh's record on questions of executive power, and cases which might come before him.

ARI SHAPIRO, HOST:

So as we heard, one big line of questions in today's hearing was about presidential powers. Here's another moment - Vermont senator Patrick Leahy, a Democrat, questioning the nominee, Brett Kavanaugh.

(SOUNDBITE OF ARCHIVED RECORDING)

PATRICK LEAHY: President Trump claims he has an absolute right to pardon himself. Does he?

SHAPIRO: Judge Kavanaugh replied that it's something he's never analyzed.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: It's a hypothetical question that I can't begin to answer...

LEAHY: What about...

KAVANAUGH: ...In this context as a sitting judge.

SHAPIRO: Joining us now is Jeffrey Rosen, president and CEO of the National Constitution Center. He's here with us to discuss what, if anything, we're learning about Kavanaugh's views on executive authority. Jeff, welcome back to ALL THINGS CONSIDERED.

JEFFREY ROSEN: Great to be back.

SHAPIRO: Well, to start, did we learn anything new today about Judge Kavanaugh's view of presidential power?

ROSEN: We did. First of all, we learned that he believes that the Nixon case was correctly decided. That might seem uncontroversial because Nixon was a unanimous decision. Kavanaugh had praised it when he was working for Kenneth Starr. But in an academic setting a few years ago, he said, heresy as it might be, it's possible that Nixon was wrongly decided. Today, he unequivocally said that Nixon represented judicial independence and was crucial to the rule of law and was a great moment in the Supreme Court history. So it was...

SHAPIRO: And what's the significance of that? I mean, how important is the Nixon case?

ROSEN: Well, it's tremendously important. Nixon established that the - a special prosecutor or Congress can subpoena documents, in Nixon's case. The Supreme Court hasn't decided whether a prosecutor can subpoena the president's own testimony, and Kavanaugh refused to rule on that question because it hasn't yet been decided. But it stands for the idea that Kavanaugh insisted he would be willing to stand up to the president.

In that last clip you were running with the protesters, Kavanaugh said, Justice Jackson. And that was a reference to Justice Jackson's decision in the Steel Seizure case, where the Supreme Court stood up to President Truman and said he couldn't seize the steel mills. And Kavanaugh cited that as an example of how some of the court's greatest moments have been checking the president.

SHAPIRO: And so given what we've heard from Judge Kavanaugh today, and from what you've read of his work in government and as a judge up until now, how would you summarize his views of executive authority?

ROSEN: Well, he undoubtedly believes that it's broad, very broad. And there was a fascinating exchange with Senator Klobuchar about one of his opinions in a case involving the Consumer Protection Board, created by Dodd-Frank. And it sounds wonky, but it's hugely important. Klobuchar quoted from his dissenting opinion and said, do you think independent agencies are unconstitutional? Because Kavanaugh had dissented from the idea that the Consumer Protection Board was permissible because the president couldn't fire the director at will.

And he basically indicated that he might be willing to revisit a 1935 case which said that Congress had the power to set up an independent Federal Trade Commission. He said his remedy wouldn't have been to invalidate the Consumer Protection Agency but to make the person removable at will and allow Congress to make it multi-member. So there really is a very significant question about whether he would significantly rein in the scope of the administrative state. And his questioning today did not do anything to alleviate those who fear that he might.

SHAPIRO: Long-term, Kavanaugh could be on the Supreme Court for decades, long after the Mueller investigation is in the history books. But short-term, how much of this question about presidential power is really a question about the Mueller investigation?

ROSEN: Well, short-term, it very much is. And Democrats were saying explicitly, President Trump appointed you, Judge Kavanaugh, because he wanted to protect himself, which was a question about motives which Kavanaugh didn't engage at all. But there are a lot of questions that could arise from the Mueller investigation, including presidential self-pardons and the subpoena power.

But more broadly, it's very, very important - and as you note, he could be on the court for 40 years - to understand that it's not just President Trump but the whole scope of the president's ability to supervise the executive agency and to issue executive orders unchecked by Congress that are at stake. So that's why it's important to pay attention to the hearings very closely.

SHAPIRO: That's Jeffrey Rosen, president and CEO of the National Constitution Center. He's also a professor at the George Washington University Law School. Jeff, thanks again for joining us today.

ROSEN: Thank you so much.

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