Democrats Zero In on Kavanaugh’s Defense of Presidential Power
S E E D E D C O N T E N T
WASHINGTON — Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.
Senator Chuck Schumer of New York, the Democratic leader, said in an interview on Wednesday that Judge Kavanaugh’s belief in broad presidential authority was “just off the deep end.”
Sign Up For the Morning Briefing Newsletter
For Democrats facing an uphill struggle to block Judge Kavanaugh’s confirmation, his protective views of the presidency could prove to be a bright red ribbon. Rather than just playing it safe with a broad swath of voters worried about access to health care and abortion, Democrats now see an opportunity to excite their base by fanning fears that the highest court in the land could turn into a bulwark to protect the man appointing its members.
As the judge made the rounds of the Capitol — he paid courtesy calls on Senator John Cornyn of Texas, the No. 2 Republican, and Senator Lindsey Graham, Republican of South Carolina — Mr. Schumer and his Democratic colleagues were gaming out a line of questioning that, they hope, will create a perception that a Justice Kavanaugh would compromise the independence of the court.
Mr. Schumer said the questions could appeal even to more moderate voters.“This issue, I think, will affect a lot of people who are sort of O.K. with Trump but think there needs to be a check and balance,” Mr. Schumer said. “There are a lot of people in America who still say, ‘I voted for him, I guess he’s O.K.’ But when you ask them, ‘Does he need a check and balance?,’ they say, ‘Definitely.’”
In two law journal articles — one published in 1998 and another in 2009 — Judge Kavanaugh raised questions about whether a sitting president could be indicted, and suggested that presidents should be shielded from civil suits and criminal investigations. Both explore issues that are deeply relevant to Mr. Trump and the ongoing investigation into Russia’s interference in the 2016 election.
Even before Mr. Trump chose his nominee for the court, Democrats had decided that they would focus almost exclusively on abortion and health care, issues that “resonate very deeply in America,” Mr. Schumer said earlier this week. But their lines of attack have expanded.
Republicans are pushing back, accusing Democrats of distorting the judge’s words. (In a fact-checking article published Wednesday, The Washington Post gave Democrats “two Pinocchios” for some of their claims about Judge Kavanaugh, and concluded that there was “no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed.”)
Mr. Cornyn said he asked Judge Kavanaugh about the law journal articles during their “courtesy visit” on Wednesday. He said the judge noted that he had proposed that Congress impose limits on investigations of sitting presidents.
“He said, ‘If you read the law review article, this basically makes clear that this is a decision for Congress to make, not the courts,’ and he was writing from his experience in the Clinton impeachment matter,” Mr. Cornyn said, referring to Judge Kavanaugh’s time on the staff of the independent counsel, Kenneth W. Starr.
He added: “It was a law review article. Lawyers think about these issues and come up with proposed ideas, but it doesn’t really bear on his fitness to be on the Supreme Court.”
Democrats are making the case that Judge Kavanaugh should pledge to recuse himself from any case involving Mr. Trump’s financial dealings or the Russia investigation.
“For me it’s a threshold qualifying question,” said Senator Richard Blumenthal, Democrat of Connecticut. “If he is unwilling to state that he will recuse himself, I think everyone should really reconsider whether they can support this nominee.”
Those arguments could energize Democratic voters before the midterm elections. Whether they will be enough to sway Senate Democrats from Republican states or moderate Republicans whose votes are critical to Judge Kavanaugh’s confirmation remains to be seen.
One key swing vote, Senator Susan Collins, Republican of Maine, spoke favorably of Judge Kavanaugh on Wednesday, noting that the articles reflected Judge Kavanaugh’s “contemplation of his role in the Clinton impeachment.”
“This was long before there was a Russia investigation and long before Donald Trump was president, so I think those who are trying to draw a link here are missing the timeline,” Ms. Collins said. “But nevertheless it’s an issue that I certainly will raise with him.”
Democrats hope that more issues will arise as senators comb through Judge Kavanaugh’s writings and opinions. The nominee’s paper trail is so long that Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the judge’s government documents to speed the confirmation process, according to a letter obtained by The New York Times on Wednesday.
The Democrats’ argument on presidential power may not sway Republican senators, but it will resonate with voters, said Geoff Garin, a Democratic pollster.
“Voters, including many independent voters and some Republican voters, care deeply about maintaining the Supreme Court as an independent check and balance on the power of the president,” Mr. Garin said. “Our polling in red states shows that voters would approve of their senator voting against confirmation if he or she believed that the nominee would weaken the court’s role as providing an independent check and balance.”
The articles grew not only out of Judge Kavanaugh’s experiences working for Mr. Starr, but also his service to former President George W. Bush. They are entering the public discourse just as Robert S. Mueller III, the special counsel, has suggested he may subpoena the president as part of his inquiry into whether the Trump campaign colluded with Russians to influence the 2016 election, and whether Mr. Trump obstructed justice.
“Whether the Constitution allows indictment of a sitting president is debatable,” Judge Kavanaugh wrote in the Georgetown Law Journal in 1998. He proposed that Congress adopt legislation specifying that the president “is not subject to indictment or information under the laws of the United States while he serves as president.”
In 2009, writing in the Minnesota Law Review, he argued that civil suits and criminal investigations are a burdensome distraction for a president: “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”
There is precedent for a Supreme Court nominee to be grilled on his view of executive powers relating to a special counsel investigation, said Nan Aron, the founder and president of Alliance for Justice, a liberal advocacy group. In 1987, Judge Robert H. Bork, a Supreme Court nominee of Ronald Reagan’s who ultimately did not get confirmed, was questioned extensively about his role in dismissing Archibald Cox, the special prosecutor who was investigating President Richard M. Nixon.
But Carrie Severino, chief counsel for Judicial Crisis Network, a conservative advocacy group, drew a different Nixon parallel, noting that of four justices appointed by Mr. Nixon, three — Warren E. Burger, Harry A. Blackmun and Lewis F. Powell Jr. — sat on U.S. v. Nixon, the case in which the Supreme Court ordered Nixon to comply with a subpoena — and joined the unanimous decision against the president.
Tags
Who is online
91 visitors
And, yet he had no problem working for Ken Starr during the Clinton impeachment and, seems to have forgotten all about the Nixon impeachment as well.
To be fair, he says he thinks Congress should pass some kind of law to prevent the POTUS from being investigated during his presidency but, such a law would allow someone like Trump to do anything they want, including making themselves "President for life", something Trump likes the idea of.
Oh....I don't like that at all. The POTUS is still a US Citizen and thus is still subject to the laws of the United States! He/she is not above the law!
If the POTUS wouldn't do things that are against the law, he/she wouldn't be distracted from governing, now would they?
Democratic politicians will say anything, knowing their voters will repeat it because they won’t look into it, and simply parrot whatever talking point they’re told to. Harvard law professor Noah Feldman explains what the nominees actually saying:, ..
”Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done”.
Yes, it's a bad idea to go after a Republican President. Getting into the nitty gritty details of the sex life of Bill Clinton was fine though. How convenient.
So Obama is a Republican President?
Sadly, it appears that his argument is too nuanced for you.
Simple as I can make it for you, he says the President can be investigated and possibly indicted as thing stands. This is what the anti Trump hysterics want. Amusing they don't understand that.
What Obama investigation are you referring to?
Kavanaugh wrote the article that scares liberals so much when Obama was President.
Trump's endgame is obvious. He personally cares as much about abortion as he cares about positive race relations.
Just curious what your response would be if Kavanaugh were to end up being the reason why Mueller is denied an interview. Actually, that's a lie. I already know the answer.
How could Kavanaugh alone do that?
The same way Kennedy swung decisions.
It should scare you as well, think, if a president can't be investigated, and, that means any president, including the (gasp) dreaded Obama type, then that means that the president can do anything, including making themselves president for life and, nothing can be done about it.
That's loony. You might want to sit this one out.
Sorry, you might want to sit this one out, the reason we have three branches of government is to prevent someone from becoming president for life, or, king or, dictator. When the three branches fall in lock step with the president on everything, no matter how insane it is then you have to wonder when that president will make himself president for life. Just ask the people in Russia how they feel about their "fair" elections which elect Putin every time.
This is crazy talk. Seriously, did you think for a second, when anti-Trump liberals law professors poured cold water on this bizarre misreading of Kavenaugh's article that you might, in fact, be wrong? Apparently not, because now you've doubled down on the crazy and somehow, in complete defiance of logic and the English language and turn a law review article posting that the President is subject to criminal indictment and turn it into, Trump will turn himself into a President for life is crazy. I don't know how else to describe such irrational thought that is totally divorced from reality.
Your argument makes Alex Jones look like Socrates by comparison. Your argument simply bears no rational relationship to reality, let alone Kavanaugh's article.
What difference does it make? Does anyone expect any Democrats to vote to approve of him? The Republicans should just let them kick and scream and just ignore them. They don't need them anyway.
And this explains why the democratic opposition is a lot to do about nothing. All Kavanaugh said is that Congress should insultate the president and he explained why. He didn’t say that the court should insulate the president or suggest that the court even has any constitutional power to do so. Since he believes that the court should be interpreting what’s written in the constitution (rather than making shit up like Democrats do) and this isn’t addressed in the constitution at all, then there is no limit on investigation and he doesn’t need to recuse himself on anything. Republicans should just brush Schumer aside as a moron and confirm Kavanaugh.