Court faces a credibility crisis
Why did President Trump and the Senate barrel ahead with elevating Brett Kavanaugh to the Supreme Court instead of one of the many other conservative judges who could have served the same purpose with less resistance? Justice Neil Gorsuch, for instance, fairly sailed to confirmation with a few Democratic votes.
Kavanaugh’s extraordinary and particular appeal for Trump and company could come down to his readiness to endorse expansive presidential power. The president has constantly tested the boundaries of his authority, and with Special Counsel Robert Mueller rounding up his top associates, the future of his administration may well depend on where those limits lie — a question that often falls to the Supreme Court.
The new justice’s first chance to back broad executive authority could come this week as the court considers a request to block depositions of top administration officials in a lawsuit over the plan to add a citizenship question to the next census. The ruling could foreshadow the court’s position on high-stakes disputes between Mueller and Trump, who has rebuffed the special counsel’s attempts to interrogate him.
Before Kavanaugh’s nomination was roiled by sexual assault charges, his views on presidential power featured prominently among the reservations about him. Kavanaugh has written that sitting presidents should be protected from lawsuits and investigations and suggested that United States vs. Nixon, in which the high court ordered the president to cough up the Watergate tapes, was a mistake. These views were more striking given that Kavanaugh once worked for Kenneth Starr, the independent counsel who investigated Bill Clinton, and advocated aggressive questioning of the Democratic president.
Kavanaugh’s unmoored response to the assault accusation, during which he suggested it was a left-wing plot to avenge the Clintons, did nothing to diminish the impression that the judge’s opinions could be influenced by partisan considerations. And many of the cases expected to come before the court reflect partisan tensions between the Trump administration and Democratic-governed states such as California, which is at loggerheads with the federal government over immigration, air pollution, online regulation and more.
The justice will weigh such cases at a precarious moment for the court’s credibility. A new CNN poll found majorities of those surveyed believed the accusations against Kavanaugh, opposed his confirmation and expect his politics to affect his decisions. The controversy has inspired calls to impeach Kavanaugh and weaken the court by “packing” in more justices or limiting their terms.
Kavanaugh said during his ceremonial swearing-in Monday that “every American can be assured that I will be an independent and impartial justice.” It will take much more than his saying so to assure those Americans who regarded his ascent with dismay.