The resignation of Supreme Court Justice Anthony Kennedy has given President Trump a chance to stack the deck in his own favor. With a showdown over his questioning by Special Counsel Robert Mueller’s office investigating collusion between the Trump camp campaign and Russia looming, the president’s efforts to impede that investigation are becoming more blatant.
Now it appears that Trump may be preparing to take his efforts to protect himself to an entirely new level. According to the Washington Post, one of Trump’s top prospects to replace Justice Kennedy should leave every American deeply troubled.
U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Justice Kennedy, is considered a leading contender for the nomination to his former boss’s seat. Kavanaugh has already made his views known about the very question that may come up before the court if Trump refuses to voluntarily submit to questioning by the Special Counsel and Mueller decides to subpoena his testimony.
In an article that he published in the Minnesota Law Review, Kavanaugh has made the case that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.
“Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from ‘time-consuming and distracting’ lawsuits and investigations, which ‘would ill serve the public interest, especially in times of financial or national security crisis.’”
The weightiest issue that Trump faces is how to avoid impeachment in the House of Representatives and conviction in the Senate, assuming Mueller finds enough evidence to call for those conclusions to his investigations. In such circumstances, the nomination of Kavanaugh to the soon to be vacated seat makes any Supreme Court decision regarding the immunity of the president to lawsuits, such as the civil defamation lawsuit filed by Summer Zervos, a former Apprentice contestant, a foregone conclusion that would only benefit Trump.
Ironically, and despite the opinions in his published article, Kavanaugh had no problem with helping investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team in the 1990’s.
If Trump does nominate Kavanaugh, he will at least face intense scrutiny from Democratic Senators over his views on the issue.
“This will be a very central topic of questions from members of the Senate,” Stephen Vladeck, professor of constitutional law at the University of Texas School of Law told TheWashington Post. “He is a staunch defender of executive prerogative. The question is just how far he would go in cases really testing whether there is any limit to that theory.”
That’s why many Democrats including Senator Cory Booker (D-NJ) are calling for a ban on even considering Trump’s Supreme Court nominations until the Special Counsel’s investigation is completed.
Trump is the subject of a criminal investigation that could eventually come before the Supreme Court—he has a clear conflict of interest as it relates to picking a new #SCOTUS justice. The investigation must conclude before considering any nominations. https://t.co/4pMGZLT6N4
— Sen. Cory Booker (@SenBooker) June 28, 2018
This sensible course of action will, of course, be rejected by Senate Majority Leader Mitch McConnell who, already drunk on his theft of President Obama’s right to nominate someone to the seat vacated by the death of Justice Antonin Scalia, won’t let his bloodlust for complete conservative control of the nation’s ultimate legal authority be satiated with just one illegitimate appointment to the court.
Unfortunately, no matter who Trump nominates for the seat, unless at least two Republican Senators decide to defy the president and all the “blue dog” Democrats who often vote with Republicans stay unified with their own party, there is not much the Democrats can do to stop the nomination process from proceeding.
All the more reason that it’s absolutely crucial for everyone who can to vote in the midterm elections for candidates that will fight against Trump and everything he stands for.
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