The Senate should confirm President Trump’s nominee for the Supreme Court, Brett Kavanaugh.
He is an accomplished jurist and would be right at home on the nation’s highest court. Kavanaugh, “Enjoys a solid reputation for integrity, intellectual capacity and writing and analytical ability,” according to the American Bar Association.
However, there have been several cases made against Kavanaugh that I think are worth being looked at.
First is the fact that Kavanaugh served on the Ken Starr investigation. Ken Starr was investigating several charges against Bill Clinton, namely the Whitewater controversy, which ended up resulting in a report that charged Clinton with perjury.
For this, Congress impeached him, though the Senate did not convict him and Clinton remained in office for his full term. To suggest that this would disqualify Kavanaugh would be to say that nobody from the Mueller investigation, which is investigating possible collusion between the Trump campaign and the Russian government, should ever be considered for the high court either, even though Trump has not been accused by Mueller of anything at this point.
The second argument is one that was made by Senate Minority Leader Chuck Schumer (D-NY). Kavanaugh does not believe a sitting president can be indicted by the Department of Justice for crimes, according to this argument.
Therefore, President Trump must have nominated Kavanaugh to protect himself from the investigations against him. The first problem is that the Department of Justice cannot charge a sitting president, because the Department of Justice under the executive branch, the head of which is the president.
Because of this, the president has the legal authority to fire anyone investigating him. This is why we have impeachment; to prevent presidents from abusing their authority in this way.
But even ignoring all of that, does Kavanaugh really think any of that?
It appears not.
The claim comes from a 2009 article in the Minnesota Law Review by Kavanaugh titled, “Separation of Powers in the Forty Fourth Presidency and Beyond.” Kavanaugh talks about how the Ken Starr investigation mentioned above distracted Bill Clinton (who, after all, was a Democrat) from pressing matters of his presidency, such as a then little known militant named Osama Bin Laden.
Because of that, Kavanaugh suggests that Congress should pass a law protecting the president from indictments. Even if Kavanaugh is mistaken, this is not paramount to saying the president constitutionally cannot be indicted, but that in his personal opinion, it is a bad idea to do so.
The third argument is one that has been made in the last few days by other Democrats in the wake of possible campaign finance violations by the president; that because Trump is an illegitimate president or could reasonably be seen as being one, so must be the people he nominates.
Without going into detail with the president, if he really is that guilty or appears to be so, either Mueller should file charges or Congress should move to impeach him.
Illegitimate presidents shouldn’t simply not have their judicial nominees considered, they should be removed from office.
That neither have been done suggests this is a cynical ploy designed to delay the confirmation hearings until after the midterm elections in November, during which Democrats hope to retake the Senate.
The fourth argument has to do with how Kavanaugh will rule in certain cases.
The two most topical cases brought up are Roe v. Wade, which forbade abortion restrictions during early parts of pregnancy, and National Federation of Independent Business v. Sebelius, which upheld Congress’ power to implement Obamacare.
I am skeptical that Kavanaugh poses any great threat to either. During his confirmation hearing as a circuit judge in 2006, Kavanaugh said he believed Roe was “settled law,” and his jurisprudence supports this, having not signed on to the most strong denunciations of Roe when able. As for the Obamacare ruling, one of the main criticisms of the judge among conservatives was that he provided a roadmap to the Supreme Court’s finding in the case before it rose that high.
But even ignoring all of that, what is wrong with both criticisms is that they target decisions, and not the philosophy behind them.
What matters most in a Justice is what framework they use to decide cases. Kavanaugh believes that the law should be interpreted as written and intended to be read. If this seems self explanatory, it should come as a shock that there are many Justices for which this is not the case.
There are those that think context should change the meaning of laws over time, even if the words stay exactly as they are. The problem is that when you use anything other than the written law, you are simply using your opinions of the way things ought to be in place of the laws enacted by the representatives of the American people.
It is the role of Congress to make laws, it is the role of the judiciary to interpret laws made by Congress. This is why we can vote out members of Congress if they make laws we do not like.
This is why I don’t understand the calls for “moderate” justices.
As Supreme Court Justice Antonin Scalia once asked, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”
Because of all of that, I think Kavanaugh would be a fine choice for the Supreme Court.
His record suggests that he is someone who will interpret the laws passed by the people you elect as they are written, and not how he personally feels about them. That is the primary function of the Judiciary.
