Supreme Court nominee Brett Kavanaugh on Wednesday sharply disputed a popular caricature of himself — that his belief in virtually unlimited executive power is perfectly suited for a president who acts like he is above the law.
Sen. Cory Booker (D-N.J.) alluded to that view on Tuesday, and Sen. Dianne Feinstein (D-Calif.) picked up the theme in her questioning of the nominee on Wednesday morning.
She noted that Kavanaugh had been an aggressive member of independent counsel Ken Starr’s team during the investigation of then-President Bill Clinton in the 1990s — but later changed his view.
Feinstein (pictured above left) referenced a law journal article that Kavanaugh (above right) wrote in 1999 reflecting on his experience on Starr’s team and later the White House working for President George W. Bush.
He expanded on those views in a 2009 law review article, expressing his concerns about civil litigation and criminal investigations of a sitting president.
“What changed was September 11th. That’s what changed,” Kavanaugh said.
But Kavanaugh testified that his 2009 University of Minnesota law school review article has been misconstrued.
He noted that the Supreme Court, in its ruling that Clinton had to submit to questioning under oath by lawyers representing Paul Jones in her sexual harassment suit against the president, invited Congress to provide for deferral of lawsuits against presidents if it wished.
“I’ve never taken a position on the Constitution on that question,” he said. “I’ve only put out proposals for you all to study, to think about the balance of a president fighting a war, leading a war, and a president subject to, say, ordinary civil lawsuits, as in the Clinton v. Jones case.”
“What changed was September 11th. That’s what changed,” Kavanaugh said.
Likewise, Kavanaugh said, some people have inaccurately stated his position on the Supreme Court’s 1974 ruling that Richard Nixon had to turn over tapes of Oval Office conversations during the Watergate investigation.
Kavanaugh once suggested that the case may have been wrongly decided.
“That quote is not in context and is a misunderstanding of my position that’s up there,” he said, referring to a quote aides held up behind Feinstein. “I have repeatedly called U.S. v. Nixon one of the four greatest moments in Supreme Court history.”
Kavanaugh placed the case alongside the 1803 Marbury v. Madison decision establishing judicial review, the 1954 Brown v. Board of Education case desegregating schools, and a 1952 case ruling then-President Harry Truman had illegally seized steel mills during the Korean War.
Related: Booker Insinuates Trump Picked Kavanaugh to Rig Probe
On the Nixon case, Kavanaugh said, “It was one of the greatest moments because of the political pressures of the time. The court stood up for judicial independence in a moment of national crisis.”
Kavanaugh said he agrees with the precedent, based on the specific regulations of the special counsel law in place at the time.
But if Feinstein was hoping for a specific declaration about whether President Donald Trump could refuse to comply with a subpoena under the current law — Kavanaugh disappointed her.
He said that is an issue that might come before the court.
“I can’t give you an answer on that hypothetical question,” he said.
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