Progressive Groups Call on Justice Kavanaugh to Recuse Himself from CFPB Case

In 2018, Kavanaugh Declared Consumer Watchdog was ‘Unconstitutionally Structured’; He Can’t Claim to be Impartial in Major Case Set to be Heard this Term

WASHINGTON, DC—On Tuesday, Demand Justice, Demand Progress Education Fund, Revolving Door Project, and Allied Progress called on Supreme Court Justice Brett Kavanaugh to recuse himself from Seila Law LLC v. Consumer Financial Protection Bureau, a case that threatens the existence of the independent consumer watchdog established as part of the Dodd-Frank Act.

The groups are demanding Kavanaugh’s recusal because he has already demonstrated a clear view on a central question the Court is deciding in the CFPB case – that is, whether the single-director structure of the CFPB is unconstitutional or not. 

In 2016 and again in 2018, Kavanaugh wrote opinions in PHH Corp. v. Consumer Financial Protection Bureau when he served as a judge on the D.C. Circuit Court of Appeals. Kavanaugh’s opinion in this case was clear: he said he believed the CFPB was “unconstitutionally structured.” He railed that “the single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person.”

Kavanaugh’s position in this case drew widespread attention at the time and in documents submitted to the Senate during his confirmation process in 2018, Kavanaugh listed his opinion in PHH Corp v. CFPB as one of his “significant constitutional opinions.”

PHH Corp implicates the exact same underlying legal question as Seila Law. Kavanaugh cannot possibly purport to be open-minded on this question, and the law clearly states that a judge or justice should recuse “in any proceeding in which his impartiality might reasonably be questioned.” It also states that “no judge shall hear or determine an appeal from the decision of a case or issue tried by him.” While not directly applicable to Supreme Court justices, courts have held that this statute must be “strictly construed” in order to prevent appellate judges from, in effect, judging their own previous judgments.

In a joint statement, the groups said:

“We call on Justice Kavanaugh to recuse himself from hearing a case on which he has already made up his mind. The law clearly states that judges should recuse themselves when their impartiality might reasonably be questioned. Brett Kavanaugh has already ruled on the underlying legal question in this case. He cannot plausibly claim to be open to arguments from both sides. If Kavanaugh refuses to recuse himself and goes on to side with the payday lender bringing this challenge, it will be further proof that this Court is utterly rigged against workers and consumers. In PHH, Kavanaugh offered a more than 70 page long dissent which he told the Senate constituted one of the most ‘significant constitutional opinions’ of his judicial career. Kavanaugh’s personal reputational interest in seeing that bitter dissent against a bipartisan majority be vindicated by the Supreme Court is considerable.”

Oral arguments in Seila Law are set for March 3, 2020.

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