Imagine this: In July 1974, the Supreme Court ruled unanimously that the president of the United States had to turn over evidence in a criminal proceeding, a decision that led, less than a month later, to that president’s resignation.
And imagine this: Three of the justices at the time, including the chief justice, had been nominated to the court by the same Republican president whose fate their votes sealed.
In a moment fraught with political consequences, the Supreme Court’s conservatives, liberals and moderates all agreed that the president had to comply with a subpoena, that he was not above the law.
I refer, of course, to the time of Richard Nixon, the Watergate break-in, investigations and prosecutions, and the revelation of the existence of dozens of secretly taped Oval Office conversations among the president and his henchmen.
In a decision that rocked a scandal-weary nation, the Supreme Court rejected Nixon’s claim of executive privilege and ruled that he had to turn over the White House tapes to the Watergate special prosecutor. The vote was 8-0. (Justice William Rehnquist recused himself because he had been an assistant attorney general under Nixon before taking a seat on the court.)
It was a huge moment. Many of us believed that Nixon’s presidency could not survive the court’s ruling. The House Judiciary Committee took up articles of impeachment that very afternoon and charged Nixon with obstruction of justice three days later. On Aug. 8, 1974, he resigned.
I bring this up for two reasons:
1. The ruling on the Nixon tapes sits in memory as a stunning fulfillment of the Supreme Court’s avowed aspirations to political neutrality. That sounds grandiose, but it’s how a lot of us saw the decision — a shining moment of judicial integrity and independence amid the sleaze and corruption of Watergate. Chief Justice Warren Burger, who delivered the opinion, had been appointed by Nixon in 1969 and was considered a conservative. Four other justices had been named to the court by Republican presidents, the remaining three by Democrats. Relative to the present, public opinion of the Supreme Court ran high in Gallup surveys.
2. The Watergate ruling provides historical perspective to what the current president, Donald Trump, is trying to do by nominating Federalist Society-approved Judge Brett Kavanaugh to the Supreme Court: Secure a reliable conservative majority for a generation and, perhaps more important to the president, get a friend if, or when, Trump finds himself in a legal predicament because of special counsel Robert Mueller’s investigation of the 2016 election.
Is there a quid pro quo at play here?
It’s hard to imagine Trump, the cynical dealmaker, not striking one with a Supreme Court nominee while the Mueller investigation is still hanging over his head.
In fact, Ben Cardin, one of Maryland’s two Democratic senators, suspects Kavanaugh’s major selling point to Trump was not his glittering conservative bona fides but the judge’s record of support for executive authority and privilege, and for deference to the president. Based on his opinions and published articles, Cardin says, it’s clear that Kavanaugh thinks presidents should not be burdened with legal problems while in office.
“He’s Trump’s Get-Out-of-Jail-Free card,” Cardin says. “He has very strong views about a sitting president not being interfered with, with criminal charges or civil lawsuits. ... Trump saw Kavanaugh as his Get-Out-of-Jail Free card, and he saw that it was too good to pass up.”
In a law review article a decade ago, Kavanaugh suggested that Congress “provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations.”
His reasoning? The presidency is a stressful job. “I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote. “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
“The indictment and trial of a sitting president,” Kavanaugh wrote, “would cripple the federal government.”
That should make all Americans suspicious of Kavanaugh’s ability to be objective in any question involving Trump and the Mueller investigation.
Furthermore, Cardin says, there are a host of other issues that Americans need to worry about should Trump get his way. A firm conservative majority would jeopardize a woman’s right to an abortion, erode consumer protections and environmental laws, cut access to health care for people with pre-existing conditions, and “shift power to the powerful.”
Maryland’s junior senator, Chris Van Hollen, says Democrats need to persuade a few Republican senators that a conservative majority, with no moderating swing vote, would be bad for the country for a generation or more.
Kavanaugh on the court, says Van Hollen, represents a threat to abortion rights, a threat to affordable health care, and a vote for “king-like powers for the president of the United States.” Imagine that.