The Antidote to Kavanaugh

The vetting of Brett Kavanaugh’s views on presidential power has been a joke. The best response will be at the ballot box.

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We have a lot of reasons to worry about Brett Kavanaugh’s likely confirmation to the Supreme Court. There is, of course, the raging controversy over the serious and alarming sexual assault allegations about him which, if true, should be disqualifying at a minimum. There are also his views on critical policy issues that cast a long and dark shadow over the country — views on social issues and issues affecting the environment, workers, consumers, students, campaign finance and more.

Then there are his beliefs on unbridled executive power. In any ordinary time these views should give the country pause; during the Trump presidency, we should be grabbing pitch forks. This is an issue that threatens to compound our looming constitutional crisis.

The common thread running through all of this is Republicans’ willingness to do anything at any cost to complete their transformation of the Court. It has generated a consistently bleak approach of hiding Kavanaugh’s record and shielding him from accountability, thwarting our constitutional vetting process. If he is confirmed, we would be left with a Supreme Court justice for whom there were serious but unexamined red flags about his character, his views and his conflicts of interest. Republicans will have again maimed our institutions, leaving us with only one option: take our outrage and channel it into the next election.

Ultimately, the red flags of last couple of weeks will come to nothing.

Kavanaugh may have the right pedigree, but at his core he is a partisan hack. You don’t spend your years toiling away in deeply partisan roles without becoming a political tool. This isn’t just about his views — which may be radical and loathsome, but to which he is entitled. It’s about what happens when a party loyalist and soldier becomes a judge: do their years of experience being a warrior in the White House trying to drive the political agenda just evaporate, or do they feel indebted in some way to party, to ideology, to a movement?

The Republicans owed it to Americans to make Kavanaugh’s confirmation hearings meaningful and demanding so he could prove his merit, so he could face down troubling statements and writings and withstand the crucible of scrutiny. Instead, the Administration and its congressional collaborators have gone to great lengths to conceal his record, to reveal only a fraction and at the last minute in order to avoid time for thoughtful examination. And when it comes to critical questions of Kavanaugh’s character as it relates to Dr. Ford’s allegations, Republicans have essentially acknowledged that they will hold a quick and perfunctory hearing and then sprint to a vote to confirm along a razor thin partisan line. The stakes are just too high for them to do anything different.

Apart from the shocking sexual assault allegations, there were a few other revelations during Kavanaugh’s confirmation hearings and since. Some of them, including statements on abortion, were almost enough to make you think his nomination would be derailed. Additional accusations surfaced that Kavanaugh lied under oath in his earlier confirmation hearings for U.S. district and appellate court nominations in 2004 and 2006. That’s an impeachable offense, but it’s a race against the clock to gain traction on these issues or any others.

The reality though is that the Republicans will ram him through no matter what (c.f. Senate majority leader Mitch McConnell prejudging that sexual assault allegations about a Supreme Court nominee will amount to nothing). The senators who are most likely to withhold support — Senators Murkowski and Collins— are hard pressed to put their foot down and demand another nominee; another nominee wouldn’t get to a hearing until after the midterms, risking Republicans’ chance of a lifetime to make over the Court. Moreover, it would be a betrayal of one of the party’s highest goals.

There is an advantage to one-party-rule in Congress and the presidency, and Republicans are making sure they max it out. At the end of the day, they will judge the first two years of Trump a stunning success: tax cuts, radical deregulation and a rock-solid five-justice conservative majority for years to come. The deck was always stacked against anything but confirmation.

Kavanaugh, potential conflicts, and the enabling of Trump’s claim to absolute power.

Kavanaugh’s views on social issues as well as his stance on regulation make him both an extremist but also a typical modern conservative. His views on presidential power, however, put him in a league of his own. Kavanaugh’s writings take on an added dimension of menace in the Trump Administration. Trump has every reason to think he couldn’t have picked a better winner to defend him — defend him, for example, the way Trump pines that Attorney General Sessions should.

Kavanaugh’s ideology on presidential power converged with the Mueller investigation during a line of questioning by Senator Kamala Harris in his confirmation hearing. Harris’s questions suggested that Kavanaugh may have discussed special counsel Robert Mueller with the Kasowitz firm, the firm that is led by a long-time Trump lawyer and the original attorney for the Russia investigation. The questions cut to the core of whether he can be an independent jurist. What evidence does she have that raised concern? Is she barred from sharing it, thus tying her hands and preventing the issue from getting the level of scrutiny it deserves?

We don’t know the significance, but there are two obvious scenarios: first, if Kavanaugh did have these discussions, the substance may reveal his thinking about presidential power in a way that is relevant to a pressing matter of public policy and justice. It’s something that should have been aired and vetted. But, where Kavanaugh dodged, Republicans certainly weren’t about to start turning up the heat or calling witnesses that would jeopardize their ultimate prize.

The other possible scenario is that there is a potential conflict of interest for Kavanaugh in a case involving the Special Counsel. But this will be a dead-end because of what might seem like an oddity of the Constitution. All federal judges are required to the follow the federal Judicial Conference’s Code of Conduct — except for Supreme Court justices. In the lower courts, this means that a conflict involving a question of recusal would be settled by a more senior judge. But the Supreme Court has interpreted the Constitution to mean that justices get to be the arbiters of their own potential conflicts. The upshot is that if there was something untoward in Kavanaugh’s dealings with the Kasowitz firm or, for that matter, in any of his dealings regarding the Special Counsel or President Trump, he would not be required to recuse himself and that decision would be un-reviewable. It seems pretty safe to say Kavanaugh wouldn’t recuse.

Kavanaugh didn’t invent the constitutional interpretation about getting to decide his own conflicts of interest. But there is a stench of absolute power running through the three branches of government that calls into question his nomination and his views on substance. We have a president who believes he is above the law, a Supreme Court nominee who all but agrees and is apparently himself above the law too when it comes to conflicts of interest, and a Senate that will do whatever it can to shield the nominee (and the President) from accountability. The President nominates a loyal party man, the Senate protects their own, Kavanaugh protects the President, and voila, they corrupt our system of checks and balances into a circle of…well, collusion.

If there is a potential conflict of interest, we should find out about it now before we bestow on Kavanaugh a seat on the nation’s highest court. He shouldn’t get any benefit of the doubt wherever there is a scintilla of secrecy, controversy, conflict or scandal.

Appointing a party loyalist is especially dangerous in the Trump administration.

With a would-be dictator in the Oval Office, it’s reasonable to wonder whether Trump picked someone who will return the favor. Trump must have gone gaga when he learned of Kavanaugh’s paper trail: a law journal article from a decade ago that spelled out his support for exempting presidents from such pesky things as criminal investigations or questions from a prosecutor; and another article from 1998 suggesting that a president is free to fire a prosecutor investigating him. Completing the trifecta, when it came to whether the President can pardon himself, Kavanaugh wouldn’t answer in his hearing. Of course, he gave no answers in his hearings about these views because he was knee-deep in a public farce that has become grotesque: a nominee with a deep and rich history of opinions suddenly morphs into a Peter Sellers-like cypher— polite, deferential but seemingly devoid of any substance, especially where that substance is germane to his ability to be independent.

Most of us, I like to think lawyers maybe above all, want to imagine an ideal world where Supreme Court justices actually are apolitical and independent-minded. Maybe they are, and maybe it is most of the time. But reality mocks the pure ideal. Remember reports of Justice Sandra Day O’Connor’s husband lamenting on election night that the justice wouldn’t be able to retire when it looked like Gore was going to win — the message being that to retire would have been disloyal to the party that put her on the Court? Remember the five votes in Bush v. Gore? And most recently, there’s Kennedy himself who sought to “protect his legacy,” ensuring that his party could pick his replacement before a potential shift in power in the Senate due to the midterms.

Sure, there have been historic examples of acts of principle, appointees bucking their appointer or the party of their appointer — most notably by conservative justices who voted unanimously in United States v. Nixon to check the then embattled president’s claims to absolute power, and by liberal justices in Clinton v. Jones who joined a unanimous court that greenlighted a civil suit against the then embattled President Clinton. But the exceptions prove the rule — or, at least, none of us should be prohibited from acknowledging reality because some Republican Senator like Ben Sasse gives us a quaint lecture about our failed process while he himself perpetuates that failure every day he reports to work.

The simple answer is probably that Trump just picked someone who shares his view about absolute presidential power and there’s no seedy quid pro quo. Well, that’s even scarier.

Kavanaugh’s jurisprudence and scholarship should give us all every reason to worry about unchecked power: in the hands of a tyrant like Trump, he will seize that power and destroy everything in his path. As Nixon lawyer James St. Clair said about his client, “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.” This is the logic we’re dealing with already in the White House and soon to be on the Supreme Court. It’s part of the grave Trump is digging for our Republic.

This doesn’t all mean we can’t trust judges to be independent, and it doesn’t mean that we can’t specifically trust Republican appointees to the judiciary. But it does mean that given his past views, and the reality of the monstrosity in the White House, Kavanaugh owes the country real answers. This is especially important in light of the tens of thousands of Kavanaugh documents that are still under the cloak of executive privilege and prohibited from public scrutiny. At what point is all this hiding too much?

This fear — real, serious — falls on the deaf ears of the party in power.

But then there’s the rest of us. The core of our democracy is our system of free elections. There is no greater tool for registering your disgust than to kick the bums out. It’s slow, it’s reactive, it’s imperfect and it can’t remedy all of the past wrongs, but it sure is effective. The Republicans have a corrupt power, and we have a righteous one. It’s time we use it.

Written by

Hafetz is a lawyer living in New Jersey.

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