Kavanaugh must recuse from all Trump cases, legal scholars say

September 4, 2018

President Trump has so badly poisoned the confirmation process for his Supreme Court nominee that the entire proceedings must be shelved, superstar Harvard University law professor Laurence H. Tribe said Tuesday, tossing a new objection onto the pile.

Mr. Tribe joined former Judge Timothy K. Lewis and Obama White House ethics adviser Norman L. Eisen in arguing Judge Brett Kavanaugh needs to recuse himself from “the full swath of cases” dealing with Mr. Trump and his legal entanglements.

And the three said until that happens, the confirmation hearings, which began Tuesday and are to stretch all week, must be halted.

“In this extraordinary set of circumstances, it is imperative that the senate take the time to address the myriad of questions swirling around Judge Kavanaugh’s recusal. Nothing less is required by the exercise of its constitutional advice and consent oversight of presidential nominations,” the three wrote in a new paper for the Brookings Institution.

The authors acknowledged that the Constitution does not impose any recusal obligations on justices, who are left to make their own decisions about cases where they have conflicts of interest.

But they said they see the law trending in that direction.

Judge Kavanaugh, who currently serves on the U.S. Circuit Court of Appeals for the District of Columbia, has not announced a recusal policy he would follow if he is elevated to the Supreme Court. There is no obligation to do so, though some future justices have laid out principles during their confirmation hearings.

Democrats said they will press the judge on that during his hearing.

Mr. Tribe and his fellow lawyers, in the Brookings paper, ticked off a list of legal cases involving Mr. Trump that they said could end up before the Supreme Court, including the ongoing special counsel’s investigation into Russian meddling in the 2016 election, the president’s ongoing personal business affairs and a lawsuit accusing him as a candidate of inciting violence at a campaign rally.

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