A group of “progressive” organizations and consumer advocacy groups are calling on Justice Brett Kavanaugh to recuse himself from participating in the Seila Law v. CFPB case which will seek to determine the constitutionality of the regulator’s leadership structure because his position on the issue is already well-known, making it impossible for him to be impartial.
The groups — Demand Justice, Demand Progress Education Fund, the Revolving Door Project and Allied Progress — issued a statement yesterday outlining their argument why it should be the remaining eight justices to hear arguments and rule on the case.
“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.”
Justice Kavanaugh was a member of the D.C. Court of Appeals when it heard arguments in the case of PHH v. CFPB. On two occasions — through the original opinion in 2016 and a dissenting opinion in 2018 — Justice Kavanaugh made his opinion that the leadership structure of the CFPB — a single director who can only be fired for cause — is unconstitutional very well-known.
“Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check – than any single commissioner or board member in any other independent agency in the U.S. Government,” Judge Kavanaugh wrote in 2018. “Indeed, other than the President, the Director enjoys more unilateral authority than any other official in any of the three branches of the U.S. Government.”
The Supreme Court is set to hear arguments on the Seila Law case in early March. The CFPB issued Seila Law a Civil Investigative Demand seeking answers to seven interrogatories and four requests for documents. The defendant refused to provide the information, leading the CFPB to file a petition with a District Court, which sided with the regulator. Seila Law appealed that ruling to the Ninth Circuit, which also sided with the CFPB. Seila then appealed the ruling to the Supreme Court.
The groups are using that 2018 ruling as ammunition why Justice Kavanaugh should recuse himself.
“Kavanaugh’s personal reputational interest in seeing that bitter dissent against a bipartisan majority be vindicated by the Supreme Court is considerable,” they said in their statement.
