Donald Trump’s selection of D.C. Circuit Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy shouldn’t come as a huge shock; the Heritage Foundation’s hand-chosen pick is a natural fit to energize Trump’s bigoted base in time for the 2018 midterms. Kavanaugh’s record includes a long and illustrious list of opinions on beloved conservative causes like outlawing abortion, allowing people unrestricted access to firearms, suppressing labor organizing, and enabling Christianist imposition on ordinary American lives.
Kavanaugh’s record shouldn’t just offend progressives who have spent decades fighting for civil rights, only to watch their wins evaporate as Trump seizes the opportunity (engineered by Mitch McConnell) to appoint a 5-4 conservative majority on the court. Many of his opinions also contradict Constitutional values, and cornerstones of American life.
But that’s not the real reason Americans — or the world, given the court’s influence on U.S. policy and the nation’s outsized role in global events — should be outraged about this. The truth behind the Kavanaugh nomination makes a cynical mockery out of the Supreme Court, a gross violation of what should be a politically neutral and highly respected body.
The justice who thinks the rules don’t apply to presidents
During his involvement in the notoriously partisan Kenneth Starr investigation in the 1990s, Kavanaugh got a firsthand look at what happens when a sitting president is called to account by a special counsel. His takeaway from the proceedings? That presidents should be allowed to dismiss counsels they don’t like at will, in addition to not even facing criminal or civil charges in the first place because they are a ‘distraction,’ and, further, that the president should be allowed to violate the law if it is unconstitutional — in the president’s opinion.
Hm. Why would a president who is currently facing a special counsel investigation be interested in appointing a Supreme Court justice who thinks that such an investigation shouldn’t even be happening? Why would a president who has repeatedly expressed interest in dismissing a special counsel want to appoint a justice who thinks this would be constitutionally defensible?
It’s not just Donald Trump who is a nightmare of corruption and scandal: It’s his entire administration. With Trump himself under multiple investigations and members of his administration engaging in shocking levels of corruption, does Trump think that he’s appointing himself and his cronies a get out of jail free card? Washington’s willingness to look the other way while his administration makes a mockery of the Constitution apparently isn’t enough.
Confirming Kavanaugh would be tantamount to collectively admitting that Trump should not be called to task for the tremendous violations he’s committed in office, and on the path to election. Senators who opt to vote “yes” to cravenly cater to the base or mindlessly comply with partisan politics should be ashamed of themselves, and of their deep, obvious hypocrisy.
The backroom deal that crafted a 5-4 majority
Kavanaugh’s opinion on criminal investigations of presidents isn’t the only thing in the room that stinks. The nominee didn’t even get to where he is today on his own merits — something familiar to many members of the Trump Administration. Rumors are breaking that it wasn’t enough for conservative groups to push Kavanaugh on Trump. Indeed, the selection may actually be the result of a backroom deal between Justice Kennedy and the president.
https://twitter.com/GeoffRBennett/status/1016642192616706050
On CNN, @RajShah45 does not deny that a deal was made between outgoing Justice Anthony Kennedy & Trump about Kavanaugh being Kennedy's replacement if he retired. pic.twitter.com/OYwkPxZI2a
— Aaron Rupar (@atrupar) July 10, 2018
On these grounds alone, Kavanaugh shouldn’t be confirmed. This is not The West Wing: Departing Supreme Court justices do not get to personally anoint their successors, though they may join those advising the president on possible options. Kennedy had his time to shape the court while he was on the court. He doesn’t get to attempt to extend his reach for decades to come; he was a mediocre justice who crafted poorly written decisions and betrayed a stunning lack of critical thinking and logical skills. He’s done enough damage as it is.
It’s imperative to investigate this alleged conflict of interest, especially in light of the fact that Kennedy’s son was involved in suspect financial dealings with the president. How corrupt and rotten are the ties between Kennedy and Trump? And if it’s discovered to be true, the Senate has an obligation to reject this nominee and demand another, one selected freely and on their merits.
The Senate Majority Leader stacking the deck
Mitch McConnell’s involvement in this process cannot go unremarked. It’s because of McConnell’s obstructionism that Trump already had an opportunity to nominate one Supreme Court justice — he held a seat open for months, refusing to even hold confirmation hearings, because he loathed President Barack Obama so much. Yet, though he insisted that voters ought to “have their say” via the 2016 election, now he’s attempting to railroad the confirmation process, racing an anointed conservative to the vacant Supreme Court seat in order to advance his hateful agenda before the midterms.
Of note is that McConnell has also been using the same tactics for packing the lower courts with shockingly unqualified and bigoted selections — Trump is aggressively overtaking the judiciary, taking advantage of seats that McConnell again refused to allow President Obama to fill. This will have a ripple effect as these feeder courts produce a crop of future Supreme Court justices who are shamefully incapable and disgustingly partisan.
Americans should be ashamed of this latest insult from the Trump Administration and its cronies. And they should be worried for the future of jurisprudence.
Photo: Phil Roeder/Creative Commons