Kavanaugh and the death of rational discourse

 Stephen Carter

By Stephen Carter Bloomberg View

Published July 30,2018

Kavanaugh and the death of rational discourse
United States v. Nixon is rearing its hoary head once more. That's the 1974 decision by the U.S. Supreme Court ordering President Richard Nixon to turn over tapes and other materials to special prosecutor Leon Jaworski - the decision that led, in just over a month, to Nixon's resignation over the Watergate scandal.

Right now, some are trying to hang the case around the neck of Judge Brett Kavanaugh, President Donald Trump's nominee to the court. Kavanaugh, his opponents say, thinks the decision was wrongly decided.

The claim, based on years-old off-the-cuff remarks, seems awfully thin. Although it's been reported as fact that Kavanaugh questioned the result in United States v. Nixon, a cleaner reading of what Kavanaugh said seems the other way. Even Kavanaugh's more sophisticated critics concede that he seems to think the case is rightly decided.

But the scholar in me wonders nevertheless what all the shouting was about in the first place. Why on earth should United States v. Nixon be beyond criticism? When I used to teach introductory constitutional law, I would challenge my students to find a firm basis for Chief Justice Warren Burger's unanimous majority opinion. They struggled.

There were lots of reasons they had trouble. Here's one. In those days - like these - the special prosecutor had no formal independence from the executive branch. He was simply another officer, subject ultimately to the control of the president. That's why Nixon was able to force the firing of the original Watergate special prosecutor, Archibald Cox, in what became known as the Saturday Night Massacre. So, in effect, the judiciary was acting as referee in an internal executive-branch dispute.

Maybe that's an appropriate role for the courts to play. But the argument the other way isn't absurd.

Today it seems obvious that the courts can command the president in such a case, but that's only because United States v. Nixon came out the way that it did and helped get rid of a president who had to go. Certainly I myself was glad. If you look hard enough at videos of the protesters in Lafayette Park the night Nixon resigned - what the New Yorker memorably labeled the "witch-is-dead celebration" - you might be able to pick me out of the crowd.

The politics of the moment made it unthinkable that United States v. Nixon would come out any other way. Nevertheless, given the way the actual constitutional question was framed, reasonable people of goodwill could have different views on the answer. And at the time it was decided, United States v. Nixon faced serious criticism from big guns in the legal academy.

Consider Yale's Alexander Bickel, one of the mightiest constitutional voices of the 1970s, and certainly no Nixon fan. Just three years earlier, Bickel had argued and won the Pentagon Papers case in the Supreme Court. In the run-up to United States v. Nixon, the president's lawyer, James St. Clair, argued that because the special prosecutor was an executive-branch employee, he had no standing to sue the president. Writing in the New York Times, Bickel concluded with evident reluctance that "as a matter of law," St. Clair's position "is correct," and that the trial judge's "rejection of it as a 'nullity' - whatever that may mean - is wrong."

In other words, Bickel thought the effort to enforce the subpoena should have been dismissed.

And here's the redoubtable Philip Kurland of the University of Chicago - again, anything but a Nixon fan - writing after the decision was handed down:

"The decision of the Supreme Court in this case was a political decision not a judicial one. Relying primarily on slogans, non-sequiturs, and a recognition of the fact that public opinion was in its corner and not in that of the executive, the Court proudly proclaimed the supremacy of the judiciary."

Kurland added: "There must be some doubt that the constitutional structure is enforced by an opinion that says no more than: 'The President cannot assert that he is the law, because we are the law.'"

Then there's Stanford's Gerald Gunther, author of what was for years the dominant casebook for teaching constitutional law. Gunther warned that Burger's opinion "seems to me to convey a misleadingly broad view of judicial competence, exclusivity and supremacy."

To be sure, United States v. Nixon had academic defenders galore, and they likely outnumbered the critics. But the issue was debated - openly and respectfully. Nobody imagined that anybody else was evil or foolish because of a differing opinion on the merits of the case, but that was an era when keen and serious debate on difficult issues was seen as central to their resolution. Put otherwise, the era was somewhat less childish than our own.

I'm not arguing that United States v. Nixon is wrongly decided. As a matter of fact, I think the court got the answer right. (Well, mostly.) But it's alarming to think that serious people nowadays seem to think the result incontestable. The history teaches us otherwise.

All of which brings us back to Judge Kavanaugh. As I said at the outset, I've seen no real evidence in support of the proposition that Kavanaugh believes United States v. Nixon was wrongly decided. But even if Kavanaugh had plainly stated exactly that, his position would be consistent with that of many a big constitutional scholar. Certainly he would not be beyond the universe of rational discourse.

I suspect that our present-day reverence for United States v. Nixon flows from our recognition that Nixon was a wretch. But the fact that we were lucky to be rid of him shouldn't place the decision beyond criticism. Once our evaluation of the moral character of one of the parties becomes the index to whether a case is rightly decided, we can say goodbye to the rule of law.

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America's Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.