Eric Davis: Does court nominee have conflict?

Several of Justice Anthony Kennedy’s Supreme Court opinions could figure in the confirmation of President Trump’s nominee, Brett Kavanaugh, to be his successor. One of these cases, decided in 2009, was Caperton v. A.T. Massey Coal Company. Although not well-known, Kennedy’s opinion in this case is relevant to today’s political situation.
A key individual in the Caperton case was Don Blankenship, at the time CEO of Massey, one of the largest coal companies in West Virginia. (Blankenship subsequently spent time in federal prison after being convicted of operating unsafe mines, and unsuccessfully sought the Republican U.S. Senate nomination in West Virginia earlier this year.) A trial court jury awarded Hugh Caperton, another West Virginia coal operator, a verdict of $50 million after finding that Massey engaged in fraudulent practices in an attempt to drive Caperton out of the coal business.
While Massey’s appeal of the verdict was pending before the West Virginia Supreme Court, Blankenship spent more than $3 million on campaign contributions to elect a judge to that court who would rule in his favor on the appeal. Blankenship’s candidate was elected, and was part of a 3-to-2 majority that overturned the jury’s damages award against Massey.
Caperton then appealed to the U.S. Supreme Court, arguing that Blankenship had, in effect, bought a judge in his company’s case. By a vote of 5-4, the Supreme Court ruled that the judge supported by Blankenship should have disqualified himself from sitting on the Massey case. Justice Kennedy wrote the opinion, which was joined by the other four liberal and moderate judges on the court at that time — Stevens, Souter, Breyer and Ginsburg. In his opinion, Kennedy wrote that “just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.”
So how is this case related to the confirmation of Kavanaugh? President Trump’s legal representatives, in particular Rudy Giuliani, have been increasingly critical of what they claim is bias in Robert Mueller’s investigation of Russian involvement in the 2016 election, and have indicated that they may well advise Trump to refuse to grant an interview to Mueller. Mueller’s investigators may be able to gather sufficient evidence from other sources, including interviews with Trump associates who have been indicted, but they might conclude that they need Trump’s testimony to answer important questions. In that case, they might subpoena Trump.
History and precedent are unclear about whether a sitting President can be lawfully subpoenaed. The case of a Trump subpoena could well end up before the Supreme Court. We know that Trump demands loyalty from his appointees — as shown by former FBI director James Comey’s testimony, as well as the fawningly obsequious letter of resignation submitted last week by Trump’s EPA administrator, Scott Pruitt. (“I count it a blessing to be serving you in any capacity … I believe you are serving as President today because of God’s providence.”)
Did Trump insist on loyalty from Judge Kavanaugh before nominating him for the Supreme Court? Does Kavanaugh believe that he could be an impartial judge in a case involving a Trump subpoena, or other issues involving the Mueller investigation? Does Kavanaugh believe that Kennedy’s point in the West Virginia case, that no person should be allowed to choose the judge in his or her own case, is applicable to his own nomination by Trump to the Supreme Court?
These questions, and others like them, should be pursued by Sen. Patrick Leahy and the members of the Senate Judiciary Committee when Judge Kavanaugh appears before the committee for his confirmation hearing.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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