Sunday, July 15, 2018

What you will not be told about the Supreme Court nominee

The NY Times provides a comprehensive (long) look at Trump’s pick for the Supreme Court: Influential Judge, Loyal Friend, Conservative Warrior — and D.C. Insider. We are warned that the narrative being constructed about Brett Kavanaugh leaves out a lot.

… as with any nominee, Judge Kavanaugh and his supporters are carefully shaping his narrative for the diverse Senate and the broader American public: his mother the judge, not his father the lobbyist; his parents’ early struggles, not their second homes in the Florida Keys and on Maryland’s Eastern Shore; his service as a children’s sports coach and a Catholic volunteer, not his participation in some of the most bitter partisan fights in recent times.

They do not let on that Judge Kavanaugh is by legacy and experience a charter member of elite Washington: His family’s government-centric social circle, his two summer jobs on Capitol Hill, his White House service, his golfing at the capital’s country clubs, his residence in one of the richest suburban enclaves in America. Nor do they note that Judge Kavanaugh’s nomination is the culmination of a 30-year conservative movement to shift the judiciary to the right.

In retrospect, his climb to a justice’s seat may seem calculated — from pursuing jobs that put him close to the nation’s most powerful men to the moment he raised some eyebrows by praising Mr. Trump for the breadth of his candidate search (“No president has ever consulted more widely…”). Although the president talked with many people about his choices, he selected Judge Kavanaugh from a list compiled with the guidance of conservative activists.

Although some would put it differently, remember that Kavanaugh is the guy who thinks sitting presidents are above the law and should not be subject to investigation or criminal charges. That, if put into practice, would be Trump’s get-out-of-jail card.

And that is why Trump picked Kavanaugh above other equally ultraconservative choices.

Mark Sumner at Daily Kos elaborates in Supreme Court nominee Kavanaugh argues that presidents can’t be indicted, sued, or even investigated.

Every Supreme Court nominee considered by Donald Trump was a genuine, Federalist Society approved ultraconservative. Every one of them could be counted on to uphold the right of big business while tearing away women’s rights, voting rights, gay rights, labor rights, and basically just rights. If it wasn’t included, word for word, in a document that was written before the steam engine, repeating rifle, and the corporation were invented … it’s out of here.

But something had to give Brett Kavanaugh the edge. There had to be something that made this member of the DC court a favorite with Trump, even though the most rabid members of his base favored someone else.

“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”

That’s from an article that Kavanaugh authored in 2008 for the Minnesota Law Review. Just what burdens should be “excused” for sitting presidents? Indictments for one thing. Civil suits for another. Kavanaugh believes that presidents should be free from being sued while in office—a position he, rather inconveniently, did not hold while working for Ken Starr. To be fair, Kavanaugh calls on Congress to make this clear through legislation. It’s not certain how he would rule if such a suit against Trump should wander his way … but we’ll likely get to find out.

Kavanaugh’s defense of the idea that the executive—along with military leaders—should be freed from the threat of criminal indictment, comes with a statement that might be particularly pleasing to Trump that “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated.” Kavanaugh’s position is that the president’s role is so important, that even preparing for a criminal investigation is too much. And confronting the idea that this would put the president “above the law,” Kavanaugh’s defense: “… it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”

So, Kavanaugh wouldn’t excuse the president from justice forever, just allow him to do as he pleases for years. …

What does Trump see in Kavanaugh? A guy who will give him what he wants most: Years of relief from facing his crimes.

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