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Filipovic writes: "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."

'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.' (photo: REX/Shutterstock)
'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.' (photo: REX/Shutterstock)


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.

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+10 # Jaax88 2018-09-09 18:11
No question Kavanaugh has lied to gain Senate approval for his current judgeship. He should not be awarded an even more important judgeship and honor.
 
 
+11 # Thomas Martin 2018-09-09 18:16
This article makes so much sense!!! How will history judge what we do?
 
 
+6 # lfeuille 2018-09-09 18:27
That would be great, but how? I don't see any legal mechanism to force tabling the confirmation and the Republicans in congress won't do it unless they are forced to.
 
 
-12 # Rodion Raskolnikov 2018-09-09 18:29
I don't see this as a constitutional crisis at all. Far from it. If Kavanaugh has a conflict of interest, it is up to the Chief Justice and the others to ask him to recuse himself. Clarence Thomas has presided over three cases involving Monsanto. His wife works for Monsanto and both of them are major stock holders. He did not recuse himself, even though he should have. This is just garden variety corruption.

All federal prosecutors shop for judges by filing their indictments where they will get the most sympathetic judge. That's just garden variety corruption and prosecutorial misconduct, not a constitutional crisis.

"The president is under criminal investigation." THis is not true. No one at the DOJ has said Trump is under criminal or any other investigation. Formally they opened a "counterintelli gence investigation" and the target was Russia. Trump is a potential witness. This could change.

There are two major constitutional crises not facing us:

1. the Electoral College is now antithetical to democracy. Maybe it always was, but now it is at a crisis point. No one in the establishment parties or media is talking about this.

2. A rogue element in the CIA/FBI/DOJ working at the request of the Clintons is trying to nullify the results of the 2016 election. Brennan, Comey, Mueller, Rosenstein, Weissman are all close to Bill Clinton in the sense that they owe their careers to him. They fabricated a frame up of Trump. This is a constitutional crisis.
 
 
+1 # Caliban 2018-09-11 00:55
1. # RR is correct that the Electoral College is a Constitutional crisis waiting to happen. And he is right that "no one" is talking about it -- yet. But until people of influence and authority do start this conversation, there won't even be a vigorous legislative debate, much less a "constitutional crisis".

2. And election theft by Bill Clinton? The idea is interesting, but without better evidence than a string of alleged Clinton friendships, # RR's item 2 is merely an electoral fantasy and not a crisis of any kind.

3. This is not to say that the Mueller investigation could not threaten DT's presidency if the Russian interference charges prove to have legal substance. Then "Russiagate" becomes a question of who knew what and when -- a genuine version of Watergate, with all of that investigation's potential dangers for the Trump campaign team and beyond.
 
 
+1 # Rodion Raskolnikov 2018-09-11 15:46
Cali -- on #2 -- I was thinking about the contacts Bill Clinton had with Loretta Lynch. Clearly and without doubt, Hillary should have been indicted following the investigation of her private email server. There were classified emails on her private unsecured server. She knew little about email, so Uma Abidin often logged on to her account, downloaded email (inc. classified ones) printed them. Uma often used Anthony Wiener's or other laptops to do this. The whole thing was a mess. There were classified email scattered all over. Reality Winner got 6 years in prison for just one.

Bill Clinton intervened with DOJ and FBI to insure Hillary was cleared. Had she been indicted, her campaign would have been over instantly. Sanders would have been the demo nominee.The loyalty to Clinton by people whose careers he made is astonishing.

Unfortunately only Fox and other right wing Hillary haters are talking about this. To me, this is a constitutional crisis. A former president and a losing candidate marshalled their loyal followers in the FBI, CIA, DOJ to annul the results of the election. A former president should have no more contacts with anyone in government.
 
 
+6 # Texas Aggie 2018-09-09 21:40
The whole process has been a sick joke since before St. Ronald of Alzheimer did his bit with tinkle down and union busting. It probably started with Nixon's southern strategy, but the political process has been getting more and more mixed up with the dregs from the bottom of a pig farm lagoon. When Ben Franklin said that they'd given us a republic if we can keep it, it looks like we can't keep it anymore. We've let the filth and rot take over.

The Second Law of Thermodynamics applied to the political situation.
 
 
+6 # economagic 2018-09-11 09:16
Ronnie, the "Southern Strategy" (acknowledged 20 years ago by one of the participants to be suppression of the Black vote), but perhaps first and foremost, the infamous "Powell Memo," written by one of Nixon's appointees to the Supreme Court prior to his being seated. I read it as a blueprint and call to political and economic arms for a coup against the federal government and specifically against democratic principles. Pretty much what has occurred since it was written in 1971.

The Franklin quote is appropriate, as is that about eternal vigilance being the price of freedom, often attributed to Jefferson and others, but listed in Bartlett's as due to Irish statesman John Philpot Curran. Likewise the Second Law. To keep water or anything at the top of a hill of any kind one must pump constantly.
 
 
+4 # economagic 2018-09-09 22:12
"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."

WAIT a bleepin' minute: This entire saga has less to do with the "Trump White House" than with the last FIFTY YEARS of Republican Senates both as the minority and as the majority. This PARTICULAR bit of authoritarianis m (tyranny, despotism) began under a president from the "Democratic" party when Republican Senators refused to process not one but HUNDREDS of his judicial appointments. After nominating a plain vanilla center-right candidate which the Senate proudly refused even to consider, said "Democratic" president did abso-bleepin'-l utely nothing to force their hand or even to use his bully pulpit to call attention to it.

Kavanaugh is a nominal fascist though from an unusual direction. Trump would be a fascist if he knew what one was. Both are symptoms; neither is the problem, to which MANY people have been calling attention explicitly for more than fifty years. I was there, and I remember, even though I was but a little mouse in a thundering herd even then.
 
 
+6 # swissms 2018-09-09 22:27
I am not sure who this article is written for, because the Republican Senators have shown that they are willing to throw their morals under the bus in order to rush this confirmation. And the Democratic Senators don't have the ability to stop them. Not only is there a conflict of interest in confirming a Trump nominee who may very likely rule in Trump's favor, but most discussions neglect to mention that Kavanaugh is no typical judge. As David Brock has just written, Kavanaugh is part of a close circle fo hard right "operatives" specifically recruited and groomed to infiltrate the government and media. This guy is a longtime political hack, no matter how milk-toasty he tries to come across at his hearing. He is willing to lie and to feign innocence in order to get into the position where he can not only bring down Roe v Wade, but separation of church and state and all the other protections of human and environmental rights we have fought so hard for. This guy is dangerous and needs to be stopped. And only the few Senators still on the fence about his confirmation can stop him.I've called them all today to make sure they've red David Brock's article. Hope to God they have and that it influences their decision.
 
 
+7 # E.V.Debs 2018-09-09 22:58
The performance of the Republicans on Judiciary was disgusting. Their questions were largely limited to "Boxers or briefs," and "favorite flavor of ice cream," trivial inquiries. There were a lot of jokes where Kavanaugh gave his goofy laugh as his ass was being salvaged by the efforts of the stooges on the "R" side. We don't care that he's a Yalie, or if he coaches girls' basketball. We want him off the court of appeals in D.C., as it appeared he lied to get appointed there as well. He shoud be impeached.
 
 
+4 # PABLO DIABLO 2018-09-10 00:17
"for potentially selling out American democracy to a hostile foreign power." No we already sold out American democracy to Corporate Power. Greed never sleeps.
When Bush v Gore was decided by a 5 to 4 vote, two of the Supremes that voted for Bush were appointed by his father and DID NOT recuse themselves. When Bush and Cheney were interviewed by the "committee" on 911, they refused to do so under oath.
So, when did this corurpt system start????
 
 
0 # Rodion Raskolnikov 2018-09-11 11:25
PD -- I agree. Bush v. Gore was a constitutional crisis but no one paid any attention. The supreme court intervened in an election and threw it to the candidate they chose. We are no where close to the constitutional crisis of 2000 - 2008: the Bush/Cheney years.

I think the AUMF (Authority to use Military Force) which congress passed to give the president unilateral authority to go to war in any place on earth was also a constitutional crisis. Congress can't just abrogate its responsibility like that.

The constitutional system is working now better than it has in a long time. The courts are imposing a check on presidential over-reaching. Congress is using its oversight responsibility over the executive branch. The checks and balances are working. Of course, it could be much better, but it is not a crisis.

The mass media is in crisis. It has been breathing the toxic air of its own bubble for too long. All the noxious gasses emitted from the rear ends of sycophantic journalists have melted their brains. They need to get out of the bubble and breathe some clean air.
 
 
+1 # economagic 2018-09-11 19:29
"So, when did this corrupt system start????"

About 7,000-10,000 years ago, when the possibility of saving food from season to season led to the Greater Badasses, later known as kings and priests, claimed the surplus as their own in exchange for maintaining it and guarding it against marauders, then doling out an amount sufficient for bare subsistence to the populace and using the rest to expand their power while living like (what else?) kings.

From time to time they have overplayed their hands, and the hoi polloi have forced them to provide a little more at least to certain favored groups.

That is, of course, a vast oversimplificat ion, but a reasonably accurate outline of the first 5,000 years of history and the last 5,000 years of pre-history (i.e., pre-writing).
 
 
+1 # Robbee 2018-09-10 07:49
there go the checks and balances!
 
 
+4 # Donna Fritz 2018-09-10 08:41
Most concerned Americans don't seem to understand that our democracy is under attack not only by Russia, but by the Republican Party, and has been for several years, predating the presidency of Trump. This is a right-wing coup and should be handled as such.
 
 
+1 # chapdrum 2018-09-10 15:45
Who writes these headlines? The idea is not to confirm Kavanaugh.
 

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