At his Senate confirmation hearings next week, Supreme Court nominee Judge Brett Kavanaugh is not expected to offer any commitment to recuse himself from cases involving investigations of President Trump, including a possible constitutional fight over a subpoena of the president, sources familiar with Kavanaugh’s preparations tell ABC News.
Senate Democrats say they plan to press Kavanaugh over recusal during questioning. “He doesn’t believe a sitting president should be investigated or prosecuted — in other words, is above the law,” Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said Friday.
“Pledging a decision on a particular matter or case – including the decision whether to hear the case – for political reasons, like obtaining confirmation votes, would violate the bedrock constitutional principle of judicial independence,” said deputy White House press secretary Raj Shah, who is overseeing the administration’s Kavanaugh confirmation strategy.
Democrats have said they plan to use the confirmation hearings to spotlight Kavanaugh’s potential legal and ethical conflicts should Mueller bring any case involving the president before the high court. As part of that strategy, Democrats announced former White House Counsel John Dean, who helped bring down former President Richard Nixon, will testify as an outside witness.
Kavanaugh will “pledge to be independent-minded in the event he has to make such a consideration, as all justices do,” a White House official involved with the process told ABC News. It’s unlikely such an assurance will placate Democrats’ concerns, though their ability to block the nomination remains limited.
Supreme Court nominees don’t typically engage in hypothetical scenarios, and it is not entirely surprising that Kavanaugh would decline to offer a firm pledge to recuse himself in any case, although other nominees have done so on specific matters. But Democrats will no doubt seize on such a moment in the hearings to try to validate their claims that Trump picked Kavanaugh with an expectation he would protect him from legal jeopardy.
Kavanaugh’s public stance on executive authority will be a key topic during the hearings. He has favored fewer restraints on presidential power and advocated the idea that presidents should be free from the “distractions” of lawsuits or investigations while in office.