Wealthy, Beltway-bred Brett Kavanaugh overcame many crushing disadvantages to be nominated to the Supreme Court by Donald Trump. He has a long affiliation with the Bush family, whose dying patriarch Trump slurred just last week. And he comes with an expansive paper trail of 300 prior court decisions, endless presidential office e-mail chains, and numerous legal-journal articles—all of which will make for a long hot summer of reading for Democratic aides and progressive legal watchdogs. On everything from voting rights to abortion to his work for Clinton-hounding independent counsel Kenneth Starr in the 1990s, Kavanaugh will provide Democratic senators (as well as Republicans, if any deign to do their jobs) with plenty to question him about when hearings begin, possibly as early as next month.
Senate majority leader Mitch McConnell, an expert at greasing the skids for right-wing Court nominees, urged Trump to pick either Thomas Hardiman or Raymond Kethledge, two stalwart conservatives also on US appeals courts who come with shorter paper trails and no troublesome Washington political past. Trump promised to drain the swamp; Kavanaugh is Swamp Thing, a product of the conservative DC establishment and an accomplice to some of its worst mistakes. Meanwhile, top presidential adviser (secondarily, a Fox host) Sean Hannity was pushing Amy Coney Barrett, a devout conservative Catholic and abortion opponent who would have fired up Trump’s white-evangelical base.
But Kavanaugh possessed one big advantage over the rest of the field: his passionate support for almost unbridled executive power, along with an eccentric conviction that a sitting president shouldn’t be indicted and or maybe even criminally investigated, for anything. The president should be excused from “time-consuming and distracting” lawsuits and investigations, Kavanaugh wrote in a 2009 Minnesota Law Review article, as that “would ill serve the public interest, especially in times of financial or national security crisis.” Impeachment is the only remedy for a law-breaking chief executive, Kavanaugh said, urging Congress to “consider a law exempting a President—while in office—from criminal prosecution and investigation.”
For a 1998 symposium on the role of independent counsels, Kavanaugh wrote that the decision to appoint one “should be at the president’s discretion,” that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is “out to get him” and that such a counsel should not produce a public report. (The independent-counsel statute expired in 1999; Mueller’s special-counsel role is comparable but less powerful.) At a February 1998 panel on “The Future of the Independent Counsel Statute,” Kavanaugh argued that “the prosecutor should be removable at will by the President.” Asked if anyone believed a president couldn’t be indicted while in office—a very unsettled legal question—Kavanaugh raised his hand (about one minute into this video.)
These are chilling words and gestures from a potential Supreme Court nominee, considering the vulnerability of special counsel Robert Mueller, now subject to near-daily Trump tantrums and the ongoing threat of termination. Kavanaugh’s appointment, if confirmed, would be “a ‘Get Out of Jail Free’ card” for Trump, says Oregon Democrat Jeff Merkley.
That was the prize for Trump, and he grabbed it with gusto. In doing so, he gave Democrats something of a prize as well. Kavanaugh is vulnerable to principled opposition on so many fronts, from his well-documented hostility to abortion rights—he tried to deny an abortion to a detained refugee last year, vilifying “abortion on demand”—to his general disrespect for Supreme Court precedent, to his possible role in post-9/11 Bush administration policies on civil liberties and the torture and detention of enemy combatants. His views of ultimate presidential power, and his skepticism that a president can even be investigated while in office, should render him unfit for appointment by a president who is under investigation by a special counsel (and many Democrats are demanding he recuse himself from ruling on future cases involving the Trump probe).
His claim, as a Kenneth Starr apparatchik, that Bill Clinton’s attempt to delay testifying before the grand jury amounted to obstruction of justice (which he deemed an impeachable offense) should also be scrutinized. Kavanaugh’s conversion from zealous defender to staunch opponent of the president’s vulnerability to prosecutorial powers doesn’t seem like the supple flexibility of a maturing legal mind; it’s the mark of a partisan hack.
Still, straight out of the gate, Democratic leadership hasn’t seemed quite ready for the ample target Kavanaugh provides. In his first television interview since the nomination Tuesday morning, Senate minority leader Charles Schumer didn’t even mention Kavanaugh’s bizarre notion that presidents should be exempt from investigation and indictment, instead emphasizing the likelihood that he would vote to overturn Roe v. Wade and the ACA. “I believe if we can prove to the American people…that this nominee will lead to a court that repeals women’s reproductive freedom, repeals ACA with its protections for pre-existing conditions, we will get a majority of the Senate to vote for it,” Schumer told CBS. Of course, while Kavanaugh will likely support repealing both, in some fashion, it’s tough to actually “prove” either. To be fair, the minority leader’s messaging got sharper and more robust as the day went on.
Thankfully, some progressive senators came out right away for hitting Kavanaugh on multiple fronts, including his uniquely expansive view of presidential powers. “Above all, women’s reproductive freedom is in the crosshairs,” New York Senator Kirsten Gillibrand said. But the senator also thinks the nominee is vulnerable on many fronts and that Democrats should fight on all of them. She rejects the notion that pro-choice Republican Senators Susan Collins and Lisa Murkowski are the only GOP line of defense against Kavanaugh, urging Democrats to work “on all senators,” adding, “Whether my Republican colleagues will be receptive I don’t know.”
Gillibrand, Merkley, and many progressive advocates think Kavanaugh is particularly vulnerable because he dissented from the DC appeals-court ruling upholding the ACA in 2011. While his 65-page dissent was arcane, and stopped short of calling the law unconstitutional (angering archconservatives), he included an assertion that a future president had the power to refuse to enforce the ACA, even if the Supreme Court found it constitutional (which it did), if that president disagreed with it. The Trump administration has already refused to defend the law’s constitutionality in court, threatening the requirement that insurance companies cover people with preexisting conditions, and the issue could hit the high court again soon.
“Preexisting conditions coverage is on the line, and I cannot think of something better able to focus the mind,” says Kristine Lucius, executive vice-president for policy at the Leadership Conference, the respected civil-rights organization. “Remember, last summer everyone predicted Trump would repeal Obamacare, and he suffered a bipartisan defeat. That was less than a year ago.” Trump, meanwhile, has expressed his “disappointment” in Chief Justice John Roberts, as “somebody that should have, frankly, ended Obamacare, and he didn’t,” and declared his SCOTUS nominees would face a “very strong test” on the issue.
Democrats are also promising to ask for every shred of Kavanaugh’s paper trail, including e-mail and other correspondence from the five years he was President George W. Bush’s staff secretary. “All of those are public record, and Democrats and the media should demand that they be posted online like Elena Kagan’s emails were,” former Obama spokesman Tommy Vietor tweeted Monday night. Between Kavanaugh’s years with Bush and his time on the Starr investigation, that could include up to a million documents and potentially delay confirmation hearings until after Labor Day.
“This is why McConnell recommended Trump not go with Kavanaugh, he’s got a paper trail a mile long,” said Brian Fallon of the liberal advocacy group Demand Justice, which urged Democrats to push for every relevant document. Senator Merkley agrees: “This is the standard that Republicans set for Kagan, and we went along. We’re not doing our jobs if we don’t request these records. I’d like to think Republicans will be strong supporters, that they’d want some consistency. We’ll find out.”
Lucius, who worked for Senator Pat Leahy on the Senate Judiciary Committee, recalls long hours poring over Kagan’s records, which numbered only about 170,000 documents. “I can’t see what leg [Republicans] have to stand on to deny those documents,” having demanded them for both Kagan and Chief Justice John Roberts.
Both Gillibrand and Merkley say Kavanaugh’s bizarre about-face on whether the president should be subject to criminal law should come in for intense scrutiny in his confirmation hearings. “You have a president with the most expansive conception of presidential power,” Merkley says, and in Kavanaugh a nominee “who is most resistant to holding him accountable in office.” Lucius says flatly: “What he has written about presidential power should frighten everyone in the country.”
Some Kavanaugh defenders, and even a few critics, have suggested his law-review article on the president’s exemption from investigation and indictment is merely prescriptive, urging Congress to act, not a statement of the way he interprets existing law. “He’s not saying he would rule that way,” his former Starr-investigation colleague North Carolina lawyer Solomon Wisenberg told CNN’s Don Lemon. But Gillibrand, a lawyer, sees it differently. “The quotes are really direct”—‘the president should have’ protection from prosecution while he’s serving—and they’re really problematic.”
Merkley concurs with his New York colleague. “He writes, ‘the indictment and trial of a sitting president would cripple the federal government,’ and goes on to say, ‘No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.’” It’s easy to see Kavanaugh ruling that way “as a sitting justice,” Merkley added.
Kavanaugh’s long history will offer many other lines of tough questioning. Senator Dick Durbin has promised to interrogate the nominee about whether he lied under oath during his 2006 confirmation hearings, when he denied being party to any discussion about Bush administration treatment of enemy combatants. A subsequent Washington Post story placed Kavanaugh at such a meeting, but the appeals-court judge ignored Durbin’s 2007 letter asking for an explanation. He won’t be able to ignore the question at his hearing. In fact, the release of his Bush-era records may provide new evidence of his role in post-9/11 civil-liberties and detention policies, which opens the possibility that Republican senators like Rand Paul, Dan Sullivan, Murkowskim and even Mike Lee could be swayed against Kavanaugh.
Trump’s nominee could also face questions about sexual-harassment claims against Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, for whom he clerked and with whom he has remained friendly for decades, serving on a screening committee with Kozinski to choose clerks for Supreme Court Justice Anthony Kennedy. Politico reported that an opposition document, apparently prepared by conservatives, made the case that it would have been tough for Kavanaugh not to have known about the allegations against his former boss, though no one has formally made that charge.
Ironically, while Kavanaugh offers such a “target-rich environment,” says Brian Fallon, that also creates the risk that Democrats will run a scattershot opposition that fails to marshal majority support in the Senate. He agrees with Lucius that the most widely persuasive issue is the ACA, and particularly retaining coverage for pre-existing conditions. “In West Virginia alone, 700,000 people could lose their coverage,” Fallon notes, predicting that’s the way Democrats will hold onto the votes of Senator Joe Manchin and other red-state senators, and maybe even pull over a Republican or two. Other advocates are prioritizing abortion rights, and women’s health more broadly. As Merkley points out, the two overlap.
The Oregon senator will continue to sound the alarm about Kavanaugh’s extreme view of presidential power, and Trump’s decision “to nominate an individual who frames presidential power more as ‘kingdom and king’ than ‘president and democracy.’ No one is above the law.”