Our D.C. Bureau Democrats site fighting words
WASHINGTON — Senate Democrats including Richard Blumenthal are in a desperate search to find something against Supreme Court nominee Brett Kavanaugh that will stick, whether it be overturning Roe v. Wade or shredding Obamacare.
But more and more, the gold they’re looking to pan has to do with Kavanaugh as presidential protector-in-chief.
If confirmed to a conservative-dominated court, would Kavanaugh act on what appears to be his expansive views of presidential power, beliefs that ultimately might help President Trump escape special counsel Robert Mueller’s investigation of his 2016 campaign’s involvement with Russia?
“Even the people who voted for Donald Trump know that he’s not a normal president, and these are not normal times,” said Blumenthal, who as a member of the Senate Judiciary Committee will get to ask questions of Kavanaugh, Trump’s choice to succeed retiring Anthony Kennedy, at so-far-unscheduled confirmation hearings. “People want the courts to be there as a check on his contempt for the rule of law.”
On Twitter, Rep. Carolyn Maloney, D-N.Y., was even more explicit. “Trump has nominated a get-out-of-jail free card,” she wrote.
The Justice Department unveiling of indictments against 12 Russian intelligence operatives Friday sent a tremor through the nomination battle.
Though they might not change the ultimate outcome, the indictments of the Russians for interfering with the 2016 election only reinforce the perception that Trump is feeling the heat and looking for all the allies he can get — including on the nation’s highest court.
Since Trump nominated Kavanaugh a week ago, Blumenthal and fellow Connecticut Democratic Sen. Chris Murphy have tried to rally opposition by characterizing the nominee as a likely fifth vote to overturn Roe v. Wade, the court’s 1993 abortion precedent, and also further erode the legal basis of the Affordable Care Act — Obamacare.
By contrast, the limit of presidential power is a wonky ConLaw topic mostly of interest to legal scholars. But it heats up when a Washington crisis occurs that pits the president against one of the other branches of government, or sometimes both.
The battle over President Clinton’s 1998 impeachment for lying about his relationship with White House intern Monica Lewinsky was one such instance. And the Watergate scandal that engulfed the presidency of Richard M. Nixon was most certainly another.
Now the question is back on the front burner, with Trump counterattacking Mueller’s far-reaching probe of Russian influence in the Trump campaign and whether anyone — including Trump himself — was in “collusion” with Russian operatives to undercut Democratic contender Hillary Clinton.
Two Kavanaugh law review articles are under Democratic scrutiny.
In one written in 2009, Kavanaugh said: “A serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.”
Such a prosecution “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas,” he wrote.
In another in 1998, he said: “Whether the Constitution allows indictment of a sitting president is debatable.”
But Blumenthal and other Senate Democrats also see a silver bullet in the dissent Kavanaugh authored in 2011 as a federal appeals court judge in Washington, the position he presently holds.
In that dissent in an Obamacare-related case, Kavanaugh said: “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
Although it has little to do with Trump’s defense against the Mueller investigation, Blumenthal has seized on it as fuel for Trump’s autocratic impulses.
“No wonder Donald Trump loves him,” Blumenthal said.
Conservatives and even some non-partisan constitutional-law experts say that cherry picking legal opinions and law review articles is not fair to Kavanaugh.
Agree with him or not, he had a fair claim to some expertise in the area: Kavanaugh served as a staff lawyer on Independent Counsel Kenneth Starr’s investigation of President Clinton in the 1990s, and then as staff secretary under President George W. Bush before Bush nominated him to the U.S. Court of Appeals for the D.C. Circuit.
His law review articles were more along the lines of academic exercises, arguments that it is the responsibility of Congress to clarify whether a president can or cannot be indicted while in office.
Without such legislation, they argue, the question remains in legal limbo — especially since the Supreme Court has never ruled on it. (Although the Supreme Court did say in the Paula Jones lawsuit against President Clinton that the president did have to answer questions in a civil suit deposition. Clinton’s untruthful answers on his sexual relationship with Lewinsky formed the basis of his 1998 impeachment, even though Senate acquittal allowed him to escape escaped removal from office.)
“You can’t infer from these articles that Kavanaugh wants the president to have dictatorial powers,” said Richard Kay, a professor emeritus at the University of Connecticut law school. “It’s hard to pin the sycophant label on him, that he’s playing up to the president. You can think less well of him, that’s fine, but he’s not Satan incarnate here.”
On the question of a president not enforcing a law thought to be unconstitutional, conservative commentators point to Justice Department memos written in Democratic administrations that say the same thing.
In 2011, President Obama’s Justice Department said it would no longer defend the Defense of Marriage Act but would continue to enforce it. DOMA, as it was known, allowed states not to recognize same-sex marriages.
The Supreme Court ultimately invalidated DOMA in its landmark 2015 ruling — authored by Kennedy — that legalized same-sex marriage nationwide.
But in Supreme Court nominations, hair-splitting legalities often get lost amid the rapid-fire Q&A and “gotcha” quotes that senators of both parties rely on.
And Blumenthal, a Yale-trained lawyer himself as well as former state attorney general and U.S. attorney, is no exception. With Trump himself more and more on trial in the court of public opinion, Blumenthal sees the issue of presidential power as his ace in the hole.
Kavanaugh “puts the president above the law,” Blumenthal said. “I think that argument carries great weight.”