Ka­vanaugh’s con­fir­ma­tion must wait

The Charlotte Observer (Sunday) - - Opinion - BY TOM NICHOLS The Wash­ing­ton Post

There is no way Repub­li­cans will halt their march to­ward Brett Ka­vanaugh’s con­fir­ma­tion as an as­so­ciate jus­tice of the Supreme Court. But if the party still cared about lim­ited govern­ment and the rule of law, it would wait un­til af­ter Novem­ber to pro­ceed.

I say this with deep re­luc­tance. I was one of few Repub­li­cans who ob­jected to the way Se­nate Ma­jor­ity Leader Mitch McCon­nell, R-Ky., de­nied a hear­ing to Mer­rick Gar­land when he was nom­i­nated to the court by Pres­i­dent Barack Obama. I con­sider my­self a con­ser­va­tive – or what used to be called a con­ser­va­tive, be­fore the age of Trump.

But if Repub­li­cans cared about any prin­ci­ple they have ever de­fended be­fore to­day, they would put Ka­vanaugh’s con­fir­ma­tion hear­ings on hold. The rea­son: We are now in the open­ing phase of a po­lit­i­cal cri­sis brought about by the guilty plea en­tered in fed­eral court on Tues­day by the pres­i­dent’s for­mer lawyer, Michael Co­hen.

I am not a lawyer, but I be­lieve the le­gal ex­perts who have ar­gued that when Co­hen stood in court and said he did some­thing il­le­gal “in co­or­di­na­tion with and at the direc­tion of” a can­di­date who could not be any­one other than Pres­i­dent Don­ald Trump, he was clearly im­pli­cat­ing the pres­i­dent in se­ri­ous and know­ing crim­i­nal be­hav­ior. Of course, I also have no idea whether a sit­ting pres­i­dent can be in­dicted or pros­e­cuted.

But we are now in po­lit­i­cal, not le­gal, ter­ri­tory. The question is whether the mem­bers of the U.S. Se­nate should con­firm a nom­i­nee who could, sooner rather than later, be sit­ting in judg­ment of the same pres­i­dent who nom­i­nated him – even as a scan­dal with huge con­sti­tu­tional ram­i­fi­ca­tions is un­fold­ing in real time.

Trump is now in a po­si­tion to place a jus­tice on the court who could well end up de­cid­ing es­sen­tial mat­ters as they per­tain to the rule of law and to the pres­i­dent per­son­ally. This re­quires a de­lib­er­ate pause.

And yet, the same Repub­li­cans who felt Obama had no busi­ness nom­i­nat­ing a jus­tice so close to an elec­tion – as though pres­i­den­tial terms end some­where short of eight years, as long as the legis- la­tive ma­jor­ity says so – are now rush­ing to con­firm a judge whose en­tire nom­i­na­tion now could rep­re­sent a gi­gan­tic con­flict of in­ter­est for their own pres­i­dent and party.

So who, then, should de­cide when Ka­vanaugh gets a hear­ing? The an­swer, as al­ways, should rest with the Amer­i­can peo­ple. We are re­mark­ably close to an elec­tion, but even if Co­hen’s plea deal had bro­ken months ago, there would still be a strong ar­gu­ment for slow­ing the process. This is not an out­come Repub­li­cans should fear: they are likely to hold the Se­nate any­way, and per­haps putting the Ka­vanaugh nom­i­na­tion in abeyance for the mo­ment might even help them with GOP voter turnout.

We also might have at least some res­o­lu­tion to the Mueller in­ves­ti­ga­tion by Novem­ber. Hav­ing the in­ves­ti­ga­tion com­plete be­fore mov­ing for­ward on al­most any ma­jor ini­tia­tive, let alone a Supreme Court nom­i­na­tion, would be ideal, but special coun­sel Robert Mueller’s team should be al­lowed as much time as it needs and the govern­ment must con­tinue and func­tion in the mean­time. Still, if there are more in­dict­ments – as seems likely – they will give the vot­ers and the Congress that much more in­for­ma­tion be­fore the elec­tion and be­fore the life­time ap­point­ment of a new jus­tice.

There is no way around the re­al­ity that there is now a cred­i­ble ac­cu­sa­tion, on the record in a fed­eral court, that the cur­rent pres­i­dent of the United States may have di­rected his lawyer to com­mit two felonies.

The pres­i­dent is the pres­i­dent and com­man­derin-chief un­til Congress or the Amer­i­can peo­ple say he’s not. He main­tains ev­ery power and perquisite of his of­fice un­til that mo­ment. He has ev­ery right to nom­i­nate a jus­tice to the Supreme Court. If the Se­nate can­not wait roughly 70 days to be­gin their de­lib­er­a­tions, we ought to ask why Repub­li­cans feel it is im­per­a­tive to rush Ka­vanaugh onto the court, and why, most of all, they will not trust in the judg­ment of the vot­ers just two years af­ter claim­ing that only the vot­ers could speak on some­thing as im­por­tant as a Supreme Court nom­i­na­tion.

Nichols is a pro­fes­sor at the Naval War Col­lege and a for­mer Repub­li­can aide in the U.S. Se­nate.

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