Senate Hypocrats Hit Kavanaugh For Proposal They Themselves Supported

Prominent Democrats have slammed Supreme Court nominee Brett Kavanaugh for supporting an end to the independent counsel statute, even though they themselves backed precisely the same proposal decades ago.

Kavanaugh has drawn criticism for a 2016 video in which he said he would "put the final nail" in a 1988 Supreme Court ruling that upheld the creation of an independent counsel, responsible for investigating wrongdoing by the executive branch and therefore independent of it (unlike, for example, the Attorney General). It was under the auspices of this office that Ken Starr investigated then-President Bill Clinton's wrongdoing in the Whitewater affair—a project on which Kavanaugh, then a young lawyer, worked.

The constitutionality of the independent counsel was upheld in 1988's Morrison v. Olson, but Kavanaugh and other critics have long-pointed to Justice Antonin Scalia's lone dissent as an argument against the office. Scalia argued in the dissent that the independent counsel violated the fundamental constitutional principle of separation of powers by appropriating the power to prosecute—an executive prerogative stretching back to English common law—from the president, in whom all executive power is vested.

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