If confirmed, Neil Kavanaugh will overturn Roe v. Wade. That’s despite the rhetorical pat on the head he gave Senator Susan Collins while telling her not to worry her pretty little head about it. Without question, Kavanaugh will attack civil rights with a gusto that only white supremacists and neo-Nazis could love.
Yet, as much as these alone should be a basis to reject his nomination, they are symptoms of a more disturbing ailment. Namely, his confirmation would be an attack on the very character of the Supreme Court from an independent and co-equal branch of government to a mere rubber stamping entity.
In a recent letter to the Chairman of the Senate Judiciary, Democrats said:
In the year and a half since Trump took office, we have seen Congress become increasingly submissive. The co-equal branch of government envisioned by the founders has become a rubber stamping entity that obstructs justice for its dear leader.
Trump wants to do the same thing to the judiciary – where the only qualification for nomination to the bench is a loyalty to the executive and to the belief that the law is what the executive says it is.
The potential of this eventuality lies in Kavanaugh’s written perceptions about the president’s relationship with the law – reflected in a 2998 law review article .
When Kavanaugh’s extreme interpretation of executive powers and immunities came to light, his defenders pointed to the fact that Kavanaugh said congress should pass a law that affords the president complete immunity from legal accountability while in office. While one could suggest it means there is no explicit protection for the president in the constitution, this stance says such immunity is constitutional.
In 2000, Kavanaugh thought Congress has a constitutional duty to investigation then president Bill Clinton while maintaininng that the president is in all meaningful ways above the law.
“In the old days, if you had a serious allegation against the president — and there was a common understanding that the president could not be indicted while he was in office — the Congress of the United States would look into the allegation immediately and would get the facts. They can depose witnesses and find out the truth,”
That only works when you have a Congress that recognizes it is a co-equal branch of government – unlike the current Republican controlled Congress that not only refuses to do any real investigation but has actively sought to help in the cover up.
The mere fact that Kavanaugh believes presidents should be exempt from independent investigations and all forms of legal accountability while in office, should concern all members of the Senate Judiciary and the whole Senate regardless of party and regardless of ideology.
“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office. We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.”
Until now, we didn’t have a president who is under investigation by the DOJ and New York is investigating his company for alleged criminal acts. We didn’t have a president who continues to profit from the presidency and gain financially from foreign governments – possibly in violation of the emoluments clause.
Trump stands out as the very reason why the rule of law that distinguishes America from the countries ruled by Trump’s favorite strongmen is so very important.
It’s very likely the Supreme Court will consider if the president is above the law and if so to what extent if the Mueller investigation subpoenas him or his records. It’s also conceivable the Supreme Court will consider if Mueller may go against DOJ policy and indict a sitting president.
Trump may not know much but he does know that Kavanaugh would do what he believes the entire judiciary should do – protect him from any form of legal accountability regardless of the nature and seriousness of the legal infraction. That’s why of all the far right candidates, vetted and approved by the Federalist Society and only the Federalist society, Kavanaugh is the candidate Trump chose.
If the Supreme Court were to uphold Kavanaugh’s legal reasoning, the potential implications begin but don’t end with threats to women’s reproductive rights, voting rights and civil rights. If Kavanaugh’s reasoning prevails upon the other members of the Federalist Society alliance, it has a real potential to transform’s the court’s culture from one of a coequal branch of government, that one that merely asks how high when the executive barks “jump” on any given legal question.
We already know Trump loves the constitution in his head.
We have disturbing signs of what that looks like fromTrump’s version of governance. Like in his business dealing, loyalty to Donald J. Trump is paramount. It comes above all laws, norms, morals and ethics. Trump applied the same standard to his attorney general and likely to judges appointed to federal courts.
With Trump’s family separation policy, we’re seeing disturbing occurrences in immigration courts that reflect Trump’s authoritarian tendencies. Children and toddlers expected to defend themselves against the state’s representatives – on laws and concepts they don’t understand. Proceedings that make speed dating look like a deliberative process. And as expressed in an legal action by immigration judges, the executive’s interference (via the DOJ) in rulings.
We know from Donald Trump’s own statements that he had only one test for his Attorney-General – personal loyalty to Donald Trump above the constitution, professional ethics, morality and human decency.
It’s all but certain that he chose to nominate Kavanaugh on similar grounds. He didn’t have to ask the question because Kavanaugh already answered it in 2009.
In the name of the rule of law, Kavanaugh‘s nomination to the Supreme Court must be stopped.