Brett Kavanaugh Flip-Flops On Importance Of Judicial Independence From The President

The Supreme Court nominee praised U.S. v. Nixon as "one of the greatest moments in judicial history." But he hasn't always felt that way.

WASHINGTON ― Judge Brett Kavanaugh repeatedly stressed Wednesday that he views U.S. v. Nixon, the landmark Supreme Court opinion that ordered President Richard Nixon to turn over White House recordings toward the end of the Watergate investigation, as one of the best examples of judicial independence.

On his second day of Supreme Court confirmation hearings before the Senate, Kavanaugh called the opinion “one of the greatest moments in judicial history.”

During a roundtable discussion with other lawyers in 1999, however, Kavanaugh said, “maybe Nixon was wrongly decided ― heresy though it is to say so.”

At the time, Kavanaugh said the opinion “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.”

Sen. Dianne Feinstein (D-Calif.) pressed Kavanaugh to clarify his previous comments on the matter. He said it was all a big misunderstanding.

“That quote is not in context. It was a misunderstanding of my position,” he said. “I’ve repeatedly called U.S. versus Nixon one of the four greatest moments in Supreme Court history.”

But Kavanaugh repeatedly declined to answer Feinstein’s real question: Does he think a sitting president can be required to respond to a subpoena? Without naming names, she was getting at the potential for President Donald Trump to be subpoenaed as part of special counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 presidential election to help Trump win.

“That’s a hypothetical question,” Kavanaugh said.

Follow Kavanaugh’s confirmation hearings here.