Hypocrites move the judicial goalpost
Be prepared for a festival of hypocrisy, evasion and misdirection from supporters of the confirmation of Judge Brett Kavanaugh to the Supreme Court. Begin with the idea that because Kavanaugh is qualified, well-educated, intelligent and likable, senators should fall in line behind him.
Sorry, but Senate Republicans have already demonstrated that these characteristics don’t matter. If they did, Judge Merrick Garland would be a Supreme Court justice. In blocking Garland, conservatives made clear that personal qualities have nothing to do with confirmation battles. They are struggles for power.
Everything we know about Kavanaugh demonstrates that he would cement a rightwing majority on the court on social issues as well as regulatory and economic questions. (That’s why he was picked.) The environment, gun safety and health care are all at stake. So are civil, voting and labor rights. Kavanaugh may be as lovely a human being as Garland is, but he would behave very differently as a justice. That’s the point.
Progressives are told they should get over the shameful treatment of Garland. What an astonishing exercise in hypocrisy from conservatives who have been reliving the defeat of Robert Bork’s nomination to the Supreme Court for 31 years. And unlike Garland, Bork got a hearing and a vote.
Kavanaugh will try to duck questions on Roe v. Wade, new challenges to the Affordable Care Act and President Donald Trump’s efforts to escape the investigation of Russian influence on our election. His defenders will pretend that his ideology is not a legitimate matter for senatorial examination.
But these same people made conservative ideology central to their case to Trump on Kavanaugh’s behalf. As Ashley Parker and Robert Costa reported in The Washington Post, “Former clerks fended off criticism that his record on abortion was squishy and that his rulings were too deferential to government agencies.”
Kavanaugh’s champions can’t have it both ways — and neither can Sens. Susan Collins, R-maine, or Lisa Murkowski, R-alaska, who are supporters of abortion rights. Kavanaugh can’t simultaneously be un-squishy on abortion for Trump and squishy enough for Collins and Murkowski.
Don’t count on the good judge to help us unravel these mysteries. Kavanaugh kicked off his confirmation campaign with a statement that lacked all credibility. “No president,” he said, “has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”
Good grief! Trump’s list of potential appointees was formulated in consultation with rightwing groups. Period. Civil rights groups, women’s organizations, labor unions and countless other sectors of our society had no part in this. Remember Kavanaugh’s wholly unnecessary whopper when he addresses other subjects.
And given that the president who named him is facing legal scrutiny, the would-be justice’s sweeping views about presidential immunity are highly relevant to whether he should be put in a position to adjudicate Trump’s future.
Kavanaugh can’t be let off the hook just because his now widely read 2009 Minnesota Law Review article suggested that presidents should be protected by congressional action, not the courts. Nowhere does he say explicitly that the courts couldn’t act. His only statement on the matter is that the Supreme Court’s decision in Clinton v. Jones requiring former President Bill Clinton to testify in a civil lawsuit “may well have been entirely correct.” Hmm. That may well have been is one heck of a verbal loophole.
His passion is plainly on the side of presidential power. Imagine Trump’s grin in response to these words from Kavanaugh:
“The indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis. Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting.”
Rudy Giuliani couldn’t have said it better, meaning that senators have every reason to demand that Kavanaugh promise (under oath) to recuse himself on any case involving the Trump inquiry.
As for Republican efforts to rush Kavanaugh through, the judge wrote in that law review article that the Senate “should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the president.”
It’s interesting that going the full 180 days would take us well past November’s election. And according to the Kavanaugh Doctrine, Garland ought to have been given a vote. Senators should ask him about that, too.