It is not often that a criminal suspect has an opportunity to select the judge for his case.
Yet, that is what’s happening in Washington.
President Trump has nominated a Supreme Court justice who will likely decide whether Trump can shield himself from criminal investigation and indictment, block production of related documents and terminate the probe by special counsel Robert Mueller. It is no surprise, then, that amid indictments and charges of corruption in the Trump White House, President Trump looked beyond his original shortlist of potential nominees to find the candidate who holds the most extreme views on executive power.
There is no question that Kavanaugh’s credentials qualify him to serve on the Supreme Court. But ideology and, most importantly, life experience, significantly influence judicial decisions. If President Trump is to be allowed the extraordinary opportunity to choose one of his own judges, we need to know that nominee’s exact views on executive power and have a complete picture of his work within the executive branch on significant issues like torture, executive orders and executive privilege.
Given some of his previous writings, there is a serious threat that Kavanaugh endorses a dangerous version of the unitary executive theory, which would allow the president to terminate the Mueller probe, prevent any indictments against him and perhaps even pardon himself. If that is indeed the case, there is a good chance that Kavanaugh would join the other Republican-appointed justices to hinder Mueller’s investigation of Trump and give Trump unprecedented tools to shield himself from the law.
The framers recognized the dangers of giving the executive the sole power of appointment, so they created a system that makes judges independent of the president following their appointment. And they gave the Senate a crucial role in the process.
But, alarmingly, despite the ongoing investigation and the heightened need to thoroughly vet any nominee to ensure an independent Supreme Court, the Senate has largely abdicated that role.
The questions asked by Republican senators on the Judiciary Committee appear largely for show. No nominee at this level would openly admit to being biased or uncommitted to the rule of law. Their softball questions give the American people absolutely no information about the nominee who will shape our country for generations.
To make matters worse, senators continue to accept nonresponsiveness by candidates for this lifetime appointment – candidates who, if confirmed, will be responsible for making the most important decisions affecting our nation, our people and our environment.
The Senate should reject any nominee who refuses to answer questions about specific issues likely to reach the court. Instead, senators have fallen for the ruse that some mythical ethical principle prevents candidates from answering substantive questions about the law or the correctness of previously decided cases, including views on executive privilege and power.
Let’s be clear – there is nothing unethical about answering such questions. In Republican Party of Minnesota v. White, the Supreme Court struck down Minnesota’s ban on judicial candidates announcing views on issues likely to come before them.
In his opinion, Justice Antonin Scalia explained that there are no impartiality concerns about a judge who has previously expressed a view on a legal issue before it arose, and, therefore, no reason for such a ban. Nonetheless, the Senate continues to squander its responsibility by refusing to demand answers to vital legal questions.
If Senators are not going to ask, or demand answers to, the hard questions, other aspects of the confirmation process become even more important. If we cannot learn about the candidate from his answers, we must learn from his record. But here again, thus far, the Senate has failed the American people. Ninety percent of Kavanaugh’s record – hundreds of thousands of pages related to his service within the executive branch – has been concealed from the Senate and the American people under a claim of executive privilege.
The Senate has been given the awesome responsibility of ensuring that the president’s preferred candidate is sufficiently independent and does not believe that presidents are above the law. Simply accepting the nominee’s reassurances without engaging in serious questioning and after reviewing less than 10 percent of the candidate’s record is a mistake that may haunt the American people for decades to come.
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