The US Must Settle Its Constitutional Crisis Before It Confirms Kavanaugh

By Jill Filipovic, Guardian UK

09 September 18

Donald Trump is now in a position where he is selecting a judge who may eventually judge him – a clear conflict of interest

rump’s US supreme court nominee Brett Kavanaugh is certainly competent at dodging difficult questions. In his confirmation hearing in Congress this week, he was asked for his opinion on Roe v Wade, the supreme court case that legalized abortion nationwide. His answer was that it’s “an important precedent. It has been reaffirmed many times”. But will he reaffirm it? He won’t say – even in light of leaked emails that suggest he doesn’t think Roe is settled law at all, and that the US supreme court could overturn it.

That slipperiness should be enough to reject him as a justice, but there are other reasons, too. The United States is perched on the edge of a constitutional crisis, led as we are by an unstable wannabe authoritarian who is at the center of a web of criminality, and is himself under investigation – and not for a petty matter, but for potentially selling out American democracy to a hostile foreign power.

This president is now in a position where he is selecting one of the judges who may eventually judge him – a clear conflict of interest if there ever was one. It’s a highly unusual situation, but it is a crisis. And it means that Kavanaugh’s confirmation – any confirmation to the supreme court – must be put on hold.

This is the point made in a recent paper by legal scholars Laurence Tribe, Judge Timothy Lewis and Norman Eisen in a paper for the Brookings Institution. They rightly point out that the body that could wind up adjudicating some of the most crucial issues of the Trump investigation is the same one Trump is currently hand-picking a judge for. The president is under criminal investigation. Do we really think that same president should be picking a judge who may ultimately decide, for example, whether the president can pardon himself?

The three men who wrote the Brookings paper “have either been before the Senate for confirmation, worked on supreme court or other confirmations, or both”. And this confirmation process, they say, is a frightening outlier, coming from a White House that has already shown total disregard for political norms and fair processes. “We have never,” they wrote, “seen anything like this hurried and defective process for such an important nomination.”

If the president asked Kavanaugh to recuse himself from any cases involving the current investigation or other alleged Trump (and Trump family) wrongdoing, and Kavanaugh agreed, this would be a different conversation. But we know Trump would never do that, because he explicitly selects toadies and sycophants who he hopes will offer him cover.

That’s why he’s so upset with his attorney general, Jeff Sessions. Sessions’s proper decision to recuse himself from the Russia investigation has enraged Trump, who believes he did Sessions a favor with the appointment, and it’s not being properly returned. These are certainly the rules of sleazy New York real estate – you scratch my back, I’ll scratch yours. These are not supposed to be the rules that govern supreme court appointments and decisions.

The fact that this appointment process has also been hasty and opaque, with too much information dropped at the last minute and too much still obscured, does not lend it confidence. Supreme court hearings have become increasingly farcical, as ambitious young lawyers who then become judges spend their whole careers side-stepping controversy in order to be a palatable higher court pick. That’s why you get Kavanaugh making simple factual statements in lieu of answering crucial questions.

While Kavanaugh is side-stepping questions on abortion rights and about his other opinions and likely decisions on topics of vital importance to millions of Americans – for example, the power of a president to pardon himself, which has become worryingly relevant – he’s not offering any more transparency about what he’s actually done in his career. As a George W Bush administration staffer, he may have weighed in on some of the country’s most critical legal matters, from torture to executive power. But we don’t know, because more than 100,000 White House documents were withheld as privileged; tens of thousands more were unceremoniously dropped by representatives of the Bush White House the day before his confirmation hearings in a classic document dump.

Compare that to Elena Kagan, who worked for the Bill Clinton administration; none of her White House documents were withheld for privilege (a relatively small number were withheld for personal privacy). According to Senator Patrick Leahy, 99% of Kagan’s documents from her time in the White House were made available to the senate judiciary committee. Only 7% of Kavamaugh’s have been similarly produced. Republicans are gunning to confirm Kavanaugh by 1 October, before the National Archives releases a huge volume of Kavanaugh’s documents, which may not be ready until the end of October. Republicans are pushing forward anyway.

If Kavanaugh and his Republican champions believe he is a qualified justice, then they should act like it and give the Senate proper time to vet him.

Instead, they see that their president is imperiled, and so they’re rushing to consolidate their power even further. At this point, such craven and immoral behavior isn’t surprising, but it remains disgusting, anti-democratic and a slap in the face to the patriotic ideals they claim to uphold.

If you think America’s independent judiciary, our constitutional democracy and our system of checks and balances are models for the world, then act like it by letting the process unfold with transparency and adequate time. Act like it by not letting a man under investigation handpick his own judge. Act like it by putting this irresponsible, wholly self-interested confirmation process on hold.