By Ethan Carlsson
What does it mean to be free? What does it mean to be governed by the rule of law? If nothing else, the current Administration of the United States is forcing us to ask big questions like these, whether we’re in America or not.
The Kavanaugh hearings raise these issues in a dramatic, and maybe distressing, way. Brett Kavanaugh is the newest Supreme Court Justice of the United States, and his nomination to the court has been one of the most controversial nominations in history. There has been controversy about sexual assault allegations, and about the unwillingness to make his work in the Bush administration public. A whole host of other issues have come up as well. But what I’m concerned with here is the reason he was probably selected by the president; his opinion on the Clinton v Jones case and the power of the president to defer investigations and trials. What I want to argue is that the opinion Kavanaugh expressed in his law review article, titled “Separation of Powers During the Forty-Fourth Presidency and Beyond”, about deferring prosecution, is inimical to the very notions of freedom upon which the United States was built.
The basic opinion presented in the article is that if a sitting president is charged with a crime or is being sued, then they should be able to defer the judicial hearing and investigation until after their presidency ends. The argument is basically that the president’s duty is to serve the people, and this duty is complex and highly demanding. In the article, Kavanaugh argues that the president makes decisions which affect the whole world, and that he does so alone; holding sole responsibility for some of the most difficult issues anyone can possibly face. In such a scenario, Kavanaugh argues, the people would be best served by a president who is not distracted by investigations or trials.
If there were need for a check against a bad-behaving president then it would still be possible for them to be indicted. The proposal would simply set the date of the trial back, so that lawsuits and investigations don’t get in the way of service to the people.
This may be true; an undistracted president would probably be a more effective one. But I didn’t begin this article talking about how presidents can most effectively serve the people. I wanted to talk about freedom. So what does freedom have to do with this?
During the confirmation hearing the Republicans made a lot of noise about the role of the judge, quoting Hamilton they talk about the courts being the weakest of all departments of power. That the courts must have neither will nor force; they must only interpret the law of others.
“there is no liberty, if the power of the judging be not separated from the legislative and executive power” (check out the 78th of the Federalist paper).
They reference this because they don’t want anyone to question Kavanaugh’s judicial opinion; they claim it would be wrong for him to be rejected as a candidate simply because his opinion doesn’t align with that of politicians. He should be chosen on the basis of his legal qualification, not his political correctness.
Let’s ignore for a moment that President Trump’s interest in Kavanaugh probably has something to do with the fact that he is being investigated, and deferral would be very convenient for him. Let’s ignore that he was almost certainly chosen for a political reason.
The kind of liberty that is being invoked here, has a rich history; a history that I think would be incredibly hostile to the opinion of Judge Kavanaugh. What I am talking about here is the freedom of the Republic against the Monarchy; it is not a freedom of contract or of action, it is the freedom of not being subject to the whims of any other person.
Political theorist Phillip Pettit defines this freedom in terms of “non-domination”, where domination means a person has the capacity to interfere on an arbitrary basis in the choices of another. If a person has a relationship with another in which they can arbitrarily interfere with that other, the freedom is already lost. Arbitrariness means that the person with the capacity is under no obligation to concern themselves with the interests of the other, or track those interests in any way. In such a relationship people could not look each other in the eyes, and one would always have to bow to the other, whether the capacity is used or not.
It’s clear from this perspective why Hamilton believed that the courts should be completely independent. If they were not, then it would not be possible to challenge the inconsistent exercise of the law. One person could get away with things that another could not, simply because the first person was more willing to bow down to the power of the executive government or legislature. Your life would be at the whim of someone else who need not care about treating you the same as anyone else, because the court will rubber stamp any decision he or she makes.
Now we can go back and talk about Kavanaugh’s opinions and the deferral of investigations and trials. He frames the issue like this: if, for example, President Clinton had not been under criminal investigation, or defending himself in a civil sexual harassment case, then he would have had more time to serve the people. The trials could have been done at a later date when nobody needed him to serve the people. But such a framing obscures the kind of arbitrary power that a deferral would create.
What deferral would do is create a person who, if only for a short amount of time, would be capable of interfering with any right or commit any crime. Yes, the president may still be indictable by the senate, but any individual subject to the actions of the president would be unable to defend themselves without the help of the senate. For a time, the president would not need to care about those affected by his actions; his subjects would need to stay on his good side or risk their rights being interfered with.
Justice Kavanaugh is careful not to challenge the legal reasoning in Clinton v Jones which currently prevents the president from using any power of deferral. But he is also careful not to support it. It’s uncertain how he would rule if the issue came before him.
What is sure, is that we should be reminded of this old kind of freedom. We should be sensitive to the challenges it faces. As we watch what happens in America we should remember to never accept the kind of power that would make us bow down before any person, president or not.
The Americans fought a revolution for that freedom, it is a treasure that should be defended wherever it has taken root.
Ethan Carlsson is an exchange student from Australia, where he studies both a Law and an International Relations Degree. He runs a website devoted to policy development and analysis and is a contributor to the Syria Community of Practice at the Australian Council for International Development. He loves reading about political philosophy, playing guitar and cooking unhealthy food.
The Uppsala Association of Foreign Affairs is politically independent. Views expressed in articles published by us reflect the opinions of their writers and should not be interpreted as the views of the Association of Foreign Affairs or Uttryck’s editorial board.