A Way Forward on the Eager Brett Kavanaugh

Supreme Court nominee Brett Kavanaugh listens to US President Donald Trump announcing his nomination in the East Room of the White House on July 9, 2018 in Washington, DC. (Photo by MANDEL NGAN / AFP) (Photo c... Supreme Court nominee Brett Kavanaugh listens to US President Donald Trump announcing his nomination in the East Room of the White House on July 9, 2018 in Washington, DC. (Photo by MANDEL NGAN / AFP) (Photo credit should read MANDEL NGAN/AFP/Getty Images) MORE LESS
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I’m skeptical that Democrats can defeat Brett Kavanaugh’s nomination to serve as a Justice of the Supreme Court. But I’m not skeptical about trying. Kavanaugh has been a reliable ideologue and partisan for most of his Washington career. Since 2006 he’s served on the DC Court of Appeals as a Supreme Court nominee in waiting. Elite universities, Federalist Society, prestige clerkships, the 90s-era anti-Clinton DC cabal, top Bush aide, cue-up circuit court judge — if you were cooking up youngish Republican judicial ideologues for Supreme Court service it’s hard to see how they’d look any different than Brett Kavanaugh. This is why I had little doubt he’d eventually get the nod. President Trump outsources Supreme Court picks and the whole inertial force of the institutional Republican party exists to put guys like Brett Kavanaugh on the Court.

Here are a few things that we should start scrutinizing now.

We’re hearing a lot about how Kavanaugh thinks presidents should be largely immune from lawsuits, subpoenas and prosecutorial scrutiny while they serve as president. This appears to have been attractive to President Trump, unsurprisingly. These arguments stem mainly from a Minnesota Law Review article. The publication date was 2009. But it appears to have been first presented at a symposium in late 2008, while President Bush was still President.

But this wasn’t Kavanaugh’s first take on presidential power.

Kavanaugh was a young legal gun (early 30s) on one of the most thoroughly corrupt and brazenly partisan investigations in American history, the do-over Independent Counsel investigation which Ken Starr ran for most of the 1990s, investigating almost every aspect of Bill Clinton’s time in office and the decades which preceded his presidency. Kavanaugh, in addition to being part of the investigation, was also a or the principal author of the notorious Starr Report, a voluminous and gratuitous play-by-play narration of the Clinton-Lewinsky Affair and a brief for impeachment.

In that document, Kavanaugh argued for a comically broad theory of what constituted obstruction of justice and impeachable offenses. He suggested that Clinton’s efforts to delay being interviewed by the Independent Counsel amounted to obstruction of justice and that lying to his staff and the American people were impeachable offenses. Needless to say, by this standard, President Trump commits numerous impeachable offenses every single day.

Many commentators are now arguing that the youthful Kavanaugh had one view while the more seasoned District Court Judge saw the matter differently a decade later. Please. Kavanaugh showed a judicious flexibility to allow his views to evolve as they were applied to either Democrats or Republicans, to political foes or friends. There is nothing more pressing and relevant in this political moment than the President’s subservience to the rule of law. Kavanaugh has been all over the map on that question, depending on whether the President was a Republican or Democrat. That all needs to be sorted out before he becomes the deciding vote on whether President needs to answer to the law.

There’s quite a lot in the Starr Report. Kavanaugh was largely responsible for writing it. It’s time to dust off that weighty tome, scrutinize the arguments Kavanaugh made and, to the extent he denies authorship, look behind the veil to understand more about his role in the investigation itself and how much of the contents he controlled.

There’s a lot there.

A related point. As Obama aide Tommy Vietor noted this evening, Kavanaugh was a top aide to George W. Bush for 5 or 6 years. He was involved in countless political and legal decisions – not least choosing other Supreme Court nominees and the thinking that went into choosing them. All those emails, memos and notes are public records. When Justice Kagan was nominated to the Court, her White House era records were all rushed online to be scrutinized as part of her confirmation process. Democrats should demand no less for Judge Kavanaugh. There’s even apparently a group which has already FOIA’d all those documents and they’re overdue for release.

It should go without saying that Kavanaugh is entirely on board with Citizens United jurisprudence, weaponizing the Court against organized labor and finally overturning Roe v Wade in its entirety. But we should not overlook his focused opposition to the Affordable Care Act and the way he is likely to use his power on the Court to further gut the law and send us back to the era of no coverage for pre-existing conditions.

There is a lot to go over. But let’s start with the Starr Report, look at his belief that merely delaying an interview with an Independent Counsel or Special Counsel constitutes obstruction of justice and is an impeachable offense. Senators should also closely probe his claim that a President lying to the public or even to his staff can be and should be an impeachable offense. That is highly interesting. And then let’s get a look at those emails and memos and notes from his six years working for President Bush. It seems unwise to hold a vote before those are thoroughly reviewed.

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