It’s been 24 hours since Brett Kavanaugh was nominated to replace Justice Kennedy on the Supreme Court. Since then I’ve seen him described as a religious ideologue, an ultra-conservative, and (my favorite) a sign that “The American Experiment Is Over”.
This isn’t a slight misstatement, a matter of nuance or a bending of the truth. It’s laughably, ludicrously wrong.
Look, I get it: Donald Trump nominated this guy, so he must be evil. Given some of this president’s other nominees (though hardly all), that’s understandable, the more so if we also consider Mr. Trump’s high scores on the Supervillain Index. (No cape, and his monologues don’t give away his evil plan because they don’t make any logical sense. Otherwise he’s closing on 100%.)
But let’s not lose sight of the facts. First, Kavanaugh as a jurist is apparently quite moderate — on the conservative side of the line, but his verdicts and opinions are verifiably centrist. (https://empiricalscotus.com/2017/12/07/the-next-nominee/) Some would call this remarkable given his association with the Bush (II) administration; I view it as evidence that he’s more scholar than activist.
Second, contrary to the noise about him being an enemy of the Roe v. Wade decision and plotting its overturn, Kavanaugh has repeatedly expressed his conviction that precedent cannot be reversed without substantial cause. And let’s not kid ourselves: He quite literally wrote the book on precedent (along with a dozen co-authors; it’s the first new standard text on the subject in a century. Here’s where you can buy it on Amazon.) If there’s anyone out there who can understand that Roe v. Wade is the law of the land, it’s Brett Kavanaugh.
Third, Kavanaugh has repeatedly demonstrated a narrow interpretation of judicial review. If you’re unfamiliar and don’t want to read the Wikipedia article, this is that doctrine which grants judges, and in particular the Supreme Court, a limited power to define or invalidate various laws. Put simply, if you’re looking for a nominee who won’t abuse his power to rewrite the law, you want someone like Kavanaugh.
Taking these into account, it’s difficult to imagine a less objectionable judge — so why is there so much objection? Are people still upset about the Merrick Garland stonewall? —Well, to be fair, they should be. Heck, I’m still upset about it; I think he’d have made a fine justice, and that his nomination was blocked by an abuse of parliamentary rules was more than a little disgusting.
But that’s the past, and blindly obstructing everything won’t fix it. Renominating Garland would, and it’d be a classy move, but — let’s face it; Donald Trump ain’t a classy guy. He puts ketchup on his burnt steak, fer the luvva Mike; we can’t really expect magnanimous gestures.
Let’s examine the wisdom of obstructing this nomination. By my count, there are three Democrats that might possibly vote in favor: Manchin (WV), Donnelly (IN), and Heitkamp (ND). Likewise, there’s two Republicans which may reasonably vote against: Collins (ME) and Murkowski (AK). I want to say this simply: There is no way that putting pressure on these five people over something this unexceptionable could be worth it for the Democratic Party. The three Democrats are their party’s best hope for gaining control in the Senate; the two Republicans are as near to Democrat as makes no never-mind (and neither has a seat in danger).
We’ve established that the nominee is no raving ideologue, that he’s seriously competent, and that he’s unlikely to overturn anything or abuse his power. I’ve also presented a fairly compelling argument that opposing him might be bad strategy from Trump’s opponents. However, there is one additional item that’s been raised to Mr. Kavanaugh’s nomination, and it bears examination.
“…Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
-Justice Kavanaugh, excerpted from an article in the Minnesota Law Review, 2009
It has of course been stated that this means Kavanaugh would side with Trump in fighting prosecution under the Mueller investigation. Now, I’m not going to go into the fine details of the law in this area; highly trained legal minds have already done this, at least one of whom published it for our perusal. As well, it’s worth observing that Kavanaugh’s suggestion here is not original to him; he but expands on the Supreme Court in their decision in Clinton v. Jones.
It’s not a single line. It’s a big document, and nowhere in it does Kavanaugh suggest that courts should or even could interfere in such a prosecution. Instead, he explicitly states that it’s the job of Congress to pass such laws or deferments, and he points at examples where they have done exactly that in the past.
And, for those who believe the author would exercise his power for political reasons, that he’d favor Republicans in general and Trump in specific, it’s worth observing that he wrote these words as a specific comment on the investigations of President Clinton, the Bush v. Gore decision, and at a time when (God help us!) there was a move toward investigating the newly elected President Obama on the grounds of his citizenship.
From a purely political standpoint, I have to say that I feel the appointment of Justice Kavanaugh to the Supreme Court is one of the luckiest things that could possibly have happened to benefit the Democratic Party. Rather than opposing it, they would be well-served to rush his confirmation through as quickly as possible and pray the Republican Senators who opposed Garland don’t read the rest of his Minnesota Law Review article. I’ll close with a relevant quote taken from his footnotes:
“…that a failure to vote on a judicial nominee is an abdication of the Senate’s constitutional responsibility.”
Heh. Just imagine Mitch McConnell having to vote in favor of this guy. Kinda makes my day.