After high court nomination, attention turns back to Kavanaugh's U speech

When Supreme Court nominee Judge Brett Kavanaugh gave his "separation of powers" speech at the University of Minnesota a decade ago it hardly made a splash.

But when President Donald Trump announced his nomination on Monday to the country's highest court, a tenet of that address quickly became a national sensation: Kavanaugh proposed that sitting presidents be exempt from criminal or civil investigations to avoid distracting them from their work.

Kavanaugh delivered the keynote address at the Oct. 17, 2008, Minnesota Law Review's annual symposium, "Law & Politics in the 21st Century." His remarks were later published as an article in a 2009 edition of the Law Review.

"Ten years ago, there was discussion about it, but it wasn't seen as a massively controversial thought or paper," said Timothy Johnson, a U political science and law professor who attended the speech. "It didn't strike me as particularly partisan at the time, but now you put it in the context of these times … it puts it in a completely different light."

Minnesota Sens. Amy Klobuchar and Tina Smith have expressed concern about Kavanaugh's track record, and others worry about his presidential immunity philosophy, given the investigation into possible links between the Trump campaign and allegations of Russian interference in the 2016 presidential election.

Johnson, who spoke on a panel at the same symposium, said the issue is a relevant point to raise at Kavanaugh's confirmation hearing, but didn't think it necessarily outweighed other issues.

"That is, in some sense, his personal interpretation of the law," Johnson said of Kavanaugh's speech. "Whether it is something of great concern, I don't know, but I think it's absolutely something worth asking about."

Although Kavanaugh co-authored the 1998 Starr Report outlining the case for impeaching President Bill Clinton for lying under oath, he said in his U speech that Congress should ensure it never happens again.

"It really makes sense to make sure, as a country, that we give our president as much room as possible to operate free from the usual burdens of the citizenry," Kavanaugh said.

The University of Minnesota Law School and the Law Review released a 38-minute clip of the speech Thursday, showing that Kavanaugh unwittingly predicted the reemergence and impact of his own statements.

"American law and public policy can be shaped and improved and enhanced through new ideas that are proposed and discussed and tested at symposiums like this," Kavanaugh said. "I've seen it repeatedly — a law review article by a scholar gets picked up years later or by a court of appeals or by a Supreme Court opinion. …"

Timothy Schmidt, an attorney in the Chicago area who was a U law student and Head Managing Editor for the Law Review article, attended the speech but had no recollection of the event.

"I don't think people were thinking the same things they're thinking in 2018," said Schmidt, who worked with Kavanaugh via e-mail to fact check and edit Kavanaugh's article.

Schmidt said that Kavanaugh was "demanding but gracious, and also willing to be collegial with those who were definitely not his colleagues."

Heidi Kitrosser, a U law professor who also spoke at the 2008 symposium, said she's also worried about Kavanaugh's possible impact in overturning abortion rights and affirmative action.

She said she's also concerned about Kavanaugh using his seat as a platform for conservative activism under the veil of constitutional "originalism," which interprets law at the time it was enacted.

"I'm much more interested in his record," she said.

Chao Xiong • 612-270-4708 Twitter: @ChaoStrib