Brett Kavanaugh's appointment compromised the Supreme Court — and now he's poised to dismantle the regulatory state
Just after Neil Gorsuch, Donald Trump’s first Supreme Court nominee, was sworn in at the Rose Garden, Justice Anthony Kennedy spoke privately with the president. Hidden from the cameras, Kennedy suggested that Trump add Brett Kavanaugh to his public short list for the high court, according to a bombshell claim in the Washington Post from deputy editorial page editor Ruth Marcus’s new book, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.
So Kennedy asked Trump for a favor; that doesn’t mean Trump acted on it, you might say. But Kennedy’s request coincides with a remarkable surge in Kavanaugh’s support within the Trump administration. It also smacks of the swampy Washington self-dealing Trump claimed he would root out.
Prior to Kennedy’s highly irregular entry into the nomination process, Kavanaugh’s name generated hostility among Trump loyalists. Even Republican stalwarts like Sen. Chuck Grassley’s (R-IA) chief counsel Michael Davis derided Kavanaugh as “too Bushie” and “too swampy.” But immediately after Kennedy’s private meeting with Trump, then-White House Counsel Don McGahn made sure Kavanaugh’s name appeared on the coveted SCOTUS short list.
The Trump White House also built a back-channel relationship with Kennedy through his sons Justin and Gregory. Justin, a former Federalist Society president and friend of Donald Trump, Jr., and Gregory, a senior financial adviser during the Trump presidential transition, have been regular fixtures at White House social events. It was Gregory Kennedy, Marcus asserts, who first relayed Kennedy’s “happiness” about Trump’s election to White House adviser Kellyanne Conway.
On June 28, 2018, Kennedy told Trump he planned to retire, and again lobbied for Kavanaugh, to be his successor. The pressure campaign didn’t end there: in the weeks that followed, Kennedy loyalists mounted an all-out campaign to boost Kavanaugh among White House staffers who were concerned the one-time Bush administration lawyer wouldn’t be loyal enough to satisfy Trump.
Months later, when Kavanaugh’s confirmation seemed uncertain to go through after multiple women accused him of committing sexual assault as a young adult, the White House reluctantly allowed the FBI to investigate the women’s claims. Sens. Jeff Flake (R-AZ) and Susan Collins (R-ME) signaled that they would likely scuttle Kavanaugh’s appointment if the allegations bore out. The FBI investigation, which was controlled by the White House rather than the Senate, failed to corroborate their stories. But earlier this year, new reporting confirmed that the FBI “did not interview more than a dozen people who said they could provide information about the incidents,” according to The Los Angeles Times.
That show investigation and Kennedy’s lobbying campaign cast serious doubts on the legitimacy of the process that brought Kavanaugh to power. The latter presents at the least the appearance of impropriety on Kennedy’s part, if not actual wrongdoing in tipping the scales of justice — quite literally — toward his friend and former clerk.
The federal judiciary is bound by a set of federal guidelines called the Code of Conduct for Federal Judges. The Code sets out in laborious detail the ethical standards required of the men and women confirmed to serve on our nation’s most powerful courts. Its guidelines have been incorporated into state courts nationwide.
Violations are serious matters: in May, a Utah judge was suspended for six months without pay for making anti-Trump posts on his personal social media accounts. On November 6, a California state judge was removed from the bench after a finding of “undignified conduct.”
Canon 2 of the Code of Conduct for Federal Judges talks specifically about the appearance of impropriety, stating “A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others.” In an extended commentary, the Code says a judge should “be sensitive to possible abuse of the prestige of office.”
Surely a sitting Supreme Court Justice cajoling the President of the United States to nominate his friend to the bench constitutes a possible abuse of the prestige of the office.
Unfortunately, the Code of Conduct for Federal Judges comes with a mighty catch. Out of 870 federal judgeships spanning every corner of the United States, only nine individuals are exempted from its rules: the Justices of the Supreme Court.
All 83 ethics complaints Kavanaugh faced, many of them related to his conduct during his nomination, were dismissed the moment he joined SCOTUS.
The absence of any federal code of conduct or independent channel for assessing wrongdoing by justices makes the Supreme Court the only branch of government with no independent oversight. It is the great irony of our federal judiciary that members of our highest court, who enjoy lifetime appointments and are insulated from democratic accountability, are also above any legal scrutiny.
Chief Justice John Roberts has been unwavering in his view that Congress has no legal right to demand the Supreme Court behave ethically. In 2011, Roberts argued there was “no reason” for a formal code of ethics because he and his colleagues “consult a wide variety of other authorities to resolve specific ethical issues.” Justice Stephen Breyer said his ethical challenges are resolved by seeking guidance from university professors.
Average Americans have seen from painful experience that a voluntary code of ethics is, in practice, license for the powerful and the verbally adept to excuse away whatever bad behavior they please. Kavanaugh’s debt to Trump for his cushy lifetime appointment casts serious doubt on the legitimacy of Kavanaugh’s past and future rulings.
A recent, unnerving opinion suggests that Kavanaugh may give the Court the vote it needs to radically dismantle the administrative state. That may include eliminating such core functions as enforcing the Clean Air Act and the Clean Water Act. If Kavanaugh votes as he implied he would in a brief opinion he wrote last week, much of how the federal government currently functions would be considered instantly unconstitutional.
More immediately, Kavanaugh’s pen could determine whether Donald Trump’s fantastical claims of “absolute immunity” from investigation are valid. That would kill criminal probes into his businesses in New York as well as allow Don McGahn and other Trump officials to refuse to comply with House subpoenas. It was McGahn who put Kavanaugh’s name on the judicial shortlist at Kennedy’s urging – this would be an ideal way for Kavanaugh to pay back that powerful favor.
There are other, equally malevolent ways Kavanaugh could pay Trump back for his judicial largesse. Kavanaugh could rule Trump’s tax returns can’t be shared with Congress, killing off multiple investigations into Trump’s alleged financial crimes. In one slash of the pen, Kavanaugh could render the executive branch untouchable by its coequal government branches.
Kavanaugh’s tenure could reshape the federal government in ways that live on long past Trump, Kavanaugh, and the dirty deal that corrupted our federal judiciary.
Some in Congress have seen enough. Earlier this year, Sen. Chris Murphy (D-CT) and Rep. Hank Johnson (D-GA) introduced the Supreme Court Ethics Act to formally bring the high court under an ethics framework. SCEA offers a strong starting point for an overdue discussion on how we govern the conduct of immensely powerful, unelected judges. Anthony Kennedy’s flagrant mixing of the Judicial and the Executive to elevate Brett Kavanaugh shows there isn’t a moment to waste.