Confirmations During Investigations

Did the Senate confirm the judicial nominees of other Presidents under a cloud of scandal?

|The Volokh Conspiracy |

Is it appropriate for the Senate to consider a nomination for a lifetime appointment to the federal bench when the nominating President is under investigation for potentially impeachable offenses? Those who oppose Brett Kavanaugh's confirmation to the Supreme Court say "no," while those who support his confirmation say "of course." Given the hyper-partisan nature of the current confirmation process, that is about what we would expect.

As a practical matter, the question comes down to who has the votes. Let's face it: Neither party is constrained by high principle when it comes to fighting over judicial nominations. It's become simply a matter of who has the votes.

As a matter of history and tradition, on the other hand, I thought it would be interesting to look at how the Senate handled judicial nominations when Presidents were under investigation or haunted by the specter of impeachment.

What I found suggests that the Senate does not appear to have altered its handling of nominations just because a President was under investigation, even when being investigated for potentially impeachable offenses and even when being impeached.

President Andrew Johnson was the first President to be impeached, but his experience may not be that instructive. He only made ten judicial appointments during his entire time in office, but one of them did occur in the midst of the impeachment controversy.

The House passed an impeachment resolution against President Johnson on February 24, 1868. Formal articles of impeachment were adopted a week later. The impeachment trial in the Senate opened in March and concluded in May. Interestingly enough, one of Johnson's judicial nominees was confirmed in the midst of this process, on April 9, 1868.

Watergate is likely a more appropriate comparison to today than anything from Johnson's term. In May, 1973, the Senate opens its Watergate hearings and Attorney General Elliot Richardson appoints Archibald Cox as a special prosecutor to investigate connections between the White House, the Nixon relection campaign, and the Watergate break-in. Cox is later fired as part of the "Saturday Night Massacre" on October 20. The following spring, the House initiates impeachment proceedings, leading to passage of three articles of impeachment at the end of July. Nixon resigns on August 8. (Note: A handful of Representatives introduced impeachment resolutions in 1972, but these did not go anywhere.)

President Nixon had no opportunity to name a Supreme Court justice during this period. His last Supreme Court nomination was made in 1971, and Justice William Douglas would not retire until suffering a stroke in December 1974. He did, however, continue to make lower court nominations that were confirmed by the Senate after the Cox appointment. Most of these were in 1973, but there were still confirmations in 1974, after the House proceedings had begun, including one district court confirmation on August 8, the same day Nixon announced his resignation.

Investigations into President Reagan's scandals appear to have had even less of an effect on judicial confirmations. Here the most relevant scandal would be Iran-Contra. Independent Counsel Lawrence Walsh is appointed to investigate the Iran-Contral scandal on December 19, 1986. This investigation continues through 1993. In addition, in 1987, Rep. Henry Gonzalez introduces articles of impeachment against President Reagan, prompting congressional hearings that summer.

Despite the Iran-Contra controversy, the Senate continued to consider and vote on President Reagan's judicial nominees, including the Supreme Court. Judge Bork's confirmation hearings are held over the summer in 1987. The Senate rejects the Bork nomination in October, though not due to Iran-Contra. Justice Anthony Kennedy is confirmed to the Court that February.

Lower court confirmations continued apace in the wake of Lawrence Walsh's appointment. The Senate confirmed sixteen circuit court nominees and over sixty district cour nominees between Walsh's appointment and the end of Reagan's term. Some Reagan nominations are stalled in 1988, including Judith Hope and Pam Rymer, for the U.S. Courts of Appeals for the D.C. and Ninth Circuits, respectively, but again Iran-Contra is not the cause. Rather, as was widely reported at the time, Senate Democrats sought to stall those nominations in the hope of holding those seats open for a newly elected Democratic President.

The Whitewater investigation, which sent a former governor to jail and resulted in the resignation of Associate Attorney General Webster Hubbell, did not seem to affect the Senate's consideration of judicial nominees either.

In January 1994, Attorney General Janet Reno named U.S. attorney Robert Fiske as a special counsel to investigate Whitewater, and related matters, including the any possible connection to Vince Foster's suicide. In August 1994, after Congress re-enacts the federal Independent Counsel statute, Kenneth Starr is appointed by a three-judge panel to replace Fiske.

Meanwhile, President Clinton nominates Stephen Breyer to the U.S. Supreme Court in May 1994. The Senate confirms Breyer as an Associate Justice in July 1994. The appointment of a special counsel does not appear to slow lower court confirmations either, as the Senate confirms ten circuit court and several dozen district court nominees between January and August 1994.

In September 1998, IC Starr submits his report to Congress, starting the process that would eventually lead to President Clinton's impeachment. This same month, AG Reno announces a 90-day inquiry to determine whether there should be an independent counsel referral to investigate Clinton's alleged involvement in developing an issue ad campaign in violation of applicable campaign finance laws.

Despite the submission of the Starr Report, and impending House impeachment proceedings, the Senate continues to confirm President Clinton's judicial nominees. Between the report's submission and the impeachment proceedings, the Senate confirms four circuit court nominees and twenty-two district court nominees.

As this history shows, thus far in our nation's history, the Senate has continued to consider and confirm a President's judicial nominees even when the President was under investigation or otherwise at risk of impeachment. Of course, one could argue that the present situation is sufficiently distinct as to justify a different response by the Senate. After all, most of the history concerns lower courts, not the Supreme Court. Whether these distinctions are meaningful is a matter I leave for the reader to judge.

NEXT: Washington Post Symposium on Brett Kavanaugh's Jurisprudence

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  1. Theory is nice but solves nothing, We need a constitutional amendment.
    Restore the 2/3 majority for (at least) SCOTUS nominations, Add major tax and spending bills.
    MAKE the bastards work together. At the minimum.

    Jefferson’s preference would be best. A Constitutional Convention. Long past time for a reboot.

    1. Actual confirmation (once you get to an up / down vote) on nominations of any type have never required a 2/3rds majority.

      The only thing that ever required a 2/3rds majority for the confirmation process was ending a pseudo filibuster (which itself is extra constitutional*) to get to an up/down floor vote. It’s not implausible to have Senators willing to vote to end a filibuster who intended to vote against confirmation. So no, the 2/3rds requirement for ending a filibuster never indicated supermajority support for confirming a nominee.

      *Just part of the Senate’s internal procedural rules, which the Constitution explicitly leaves to the Senate to decide for itself.

    2. MAKE the bastards work together. At the minimum

      Not a big fan of the ‘work together or the county gets it’ paradigm.

    3. I don’t think you have thought through the implications of a tougher confirmation standard. The court can be swayed one way or the other by letting vacant seats stay vacant indefinitely. Eventually, the number of justices will be reduced to one, and then to none. The same applies to all kinds appointments. Eventually, no judges, no prosecutors, no agency heads, eventually no courts, no agencies … In our world of infinitely contorted partisanship, surely some people would think that would be a good idea.

      No. I think it should be the other way around. Elections have consequences. The President should have whoever he wants in the Cabinet and in the courts. The only grounds for denying an appointment should be a criminal conviction. Other than that, it should be an automatic rubber stamp. We voters should instead focus our attention on who gets elected.

      Also remember that any anti-Trump tactics that prove successful, will be used against every future President.

      1. No. I think it should be the other way around. Elections have consequences. The President should have whoever he wants in the Cabinet and in the courts.

        Why would only Presidential elections have consequences ? Shouldn’t elections to the Senate have consequences too ?

        To pass legislation, you need to get the House of Representatives, the Senate and the President onside. For confirmations you need to get the Senate and the President. All these people are where they are in consequence of elections.

        The reason for requiring agreement between different elected officials is to minimise the power of each one. You could have a single election every four years to elect one person as Supreme Leader, with all three branches rolled into one under his command. But the Founders, and indeed even the Brits before then, had concluded that the separation of powers was better than the concentration of them, in the round.

        There’s very little to be said for the idea that the President should have unfettered power to pack the judiciary. There’s a better case for administration officials, but even then, the Founders notion was that the Legislature should have the primary power, and not that the Legislature and Executive should be equal. So entitling the Legislature to refuse consent to executive appointments is entirely consistent with that.Though these days there are so many executive appointments that they clog up the Senate.

        1. The problem with the US Legislative branch is it has a lot of power but no real accountability.

          Voters basically have one metric, country doing good or country doing bad, and they tend to assign credit to the person in charge, ie the President. So when congress if from the other party it actually has a strong motive to gum things up since the public will see the trouble, blame the President, and vote them out.

          The problem is this kind of mud tossing is necessary since the President is so insulated it’s very easy for them to build prestige and get re-elected.

          This is why I think Constitutional Monarchies work better, the Prime Minister basically has all the power so the legislation is actually designed to make the country run well. But the PM is also stuck in the mud arguing in the House of Commons, so they never build the prestige that makes them election proof.

          1. “The problem with the US Legislative branch is it has a lot of power but no real accountability.”

            Isn’t that the problem with the government as a whole?

            Sure, the opposition party in Congress tries to stop the President from implementing his policies, but are they really going to propose laws that go against their policies just so they can hurt the country and blame the President? The President can just veto their bills and they likely won’t become law.

            Besides, politicians don’t usually have to *try* to make things worse; their policies do so often enough as is. Then consider unintended consequences on top of the other problems they cause.

            OTOH, the competition created by divided government actually has some benefits. We have lower deficits when both parties bear responsibility for them and can blame the other side for them. Also, when we have one party rule (by either party) is when we tend to get the largest, most expensive government programs. When we have divided government, each party tends to stop the other party’s most grandiose programs.

          2. Part II:

            You want monarchy? Really? Sorry, no one has the right to be royalty and force the public to support them. As for the claim that “…the Prime Minister basically has all the power so the legislation is actually designed to make the country run well”, do they really know how to design laws to make the country run well? In addition, some constitutional monarchies, esp. Muslim constitutional monarchies, give the monarchy more power than the constitutional monarchies that you describe.

            Food for thought:
            http://suffragio.org/2013/07/24/are-constitutional
            -monarchies-better-than-presidential-republics
            -correlation-?-causation/

            If the European constitutional monarchies changed to constitutional republics tomorrow, with no monarchy, would they suddenly do down the drain? No. They would still have a lot of the same problems and probably end up pretty much like they were before.

      2. Going forward the president and senate will have to be the same party for SCOTUS appointments. The senate might throw the president a bone if the justice that dies is the same party as the president.

    4. Notice Lefties that are losing power want to force Republicans and Libertarians to ‘work together’.

      1. When Democrats win elections, they say the people want them to implement their policies and don’t want the Republican’s policies.

        When Democrats lose elections, they say the people with them and the Republicans to work together in a bi-partisan way to get things done (which usually means the Republicans get rolled, if they go along with this approach). They don’t say that the people prefer the Republican party’s policies and want them implemented.

    5. “Jefferson’s preference would be best. A Constitutional Convention. Long past time for a reboot.”

      Sorry. I’m way too old to be eager for a game of Constitutional 52-card pickup most likely dominated by liberals.

  2. Theory is nice but solves nothing

    What’s the problem you’re trying to solve ?

    As for 2/3 majorities, you need to do the math. By which I mean game theory math. A vacancy is fine for the team that already has a majority on the Court. Hence they don’t need to bargain. A 2/3 majority for legislation just means that the courts are even more powerful, they do the legislating and Congress doesn’t get to intervene. The team with a majority of the judges is quite happy with legislative stalemate. In fact having your judges do your legilating for you is far preferable to doing it yourself, since you can blame the judges at election time.

    And 2/3 majority for tax and spending bills ? We just get more of what we have now – one side can’t stomach tax rises. The other side can’t stomach spending restraint. Solution – cut taxes and spend more. There’s a happy compromise. Twenty trillion and counting.

    1. As for 2/3 majorities, you need to do the math.

      You need to learn math arithmetic

      A 2/3 majority for legislation

      Which I never said.

      The rest suffers a total lack oh our Constituion.

      1. “You need to learn arithmetic”

        btw, 60/100 =/= 2/3.

        1. I think all the repetitions of the 2/3rds figure arise from reference back to David Nolan’s initial comment at top. He was presumably speaking of the period from 1917-1975 when cloture did require a 2/3 majority (even if in practice this threshold wasn’t actually required for confirmations owing to both differences in which uses of the filibuster were acceptable and how filibusters needed to be conducted at the time).

      2. >> “A 2/3 majority for legislation”

        “Which I never said.” – David Nolan

        From David’s first comment:

        “Restore the 2/3 majority for (at least) SCOTUS nominations, Add major tax and spending bills.”

  3. Mueller has never stated that Trump is under investigation; in fact he has said the opposite. So your standard for “president under investigation” appears to be “a special counsel exists”.

    Impeachable offenses are anything the House says is impeachable. Which means “potentially” impeachable offenses are basically any offense.

    So essentially you’re asking if the president can be blocked from nominating any federal judges by the existence of a special counsel. That would make the Attorney General (or in this case, the Assistant Attorney General) equally powerful as the Senate when it comes to advice and consent!

    Curious, did this rule, like so many others advanced from this site, come into being 1/20/2017?

    1. Exactly. Mueller isn’t ‘investigating the President’, he’s just making life hell for anybody who has ever dared to work for the President, in the hope that, eventually, he can get one of them to implicate the President in a crime.

      Which he then won’t prosecute, because doing so would require evidence, not just a coerced confession by somebody else.

      The point is valid: Even if he WAS investigating the President, investigations don’t mean squat. Convictions are what mean something.

      Remember, innocent until proven guilty?

      1. Innocent or guilty, formally stated or not, there’s a conflict of interest concern.

        1. Indeed, there is a conflict of interest to be worried about here: If simply being “investigated” robs a President of his normal prerogatives of office, there’s an interest generated for his foes in investigating him, regardless of whether or not there’s really any good basis for investigating.

          In fact, I think that’s what we’re looking at here: An investigation motivated only by the desire to hobble an unliked President. Seriously, investigating a President based on an oppo research paper? That’s really lame.

          1. In this case, the President is the one that’s made it abundantly clear he has a conflict.

            1. how so, given that it couldn’t have happened before what Brett mentioned? That damned Republican time machine showing up again?

              1. Trump said he fired Comey to try and kill the investigation. He keeps tweeting for Sessions to kill the investigation and start targeting Democrats.

                Trump is the most transparent of people, and his need to end the investigation is not hidden. That creates a conflict when it comes to appointing those who might arbitrate things regarding said investigation.

                Brett’s complaint of potential abuse to undermine the President is unsupported speculation. We have actual evidence from the President himself of a willingness and desire to abuse the process on the other side.

                1. “Trump said he fired Comey to try and kill the investigation.”

                  No, he did not.

                  Now, go find a quote by him where he actually said that. You’ll find he didn’t say it.

                  What he did say was that he fired Comey because of the investigation. You’re reading the “to try to kill” the investigation into that, but it could have just as easily have been to prevent the investigation from being run by a demonstrated incompetent partisan hack.

                  You’re just applying the standard rule of Trump interpretation: Anything he says must be interpreted to have the worst possible meaning, even if it makes no sense in context.

                2. “Brett’s complaint of potential abuse to undermine the President is unsupported speculation.”

                  OMG! You’re not that naive, are you? BTW, he wasn’t talking about “potential” abuse of the process to harm President Trump; he sees it as actual abuse. Or maybe you think the Democrats would NEVER do that! Partisan politics would never influence them! LOL! Heck, they started the investigation without any evidence that Trump colluded with Russia, which should be the basis of any investigation, so it’s largely a fishing expedition to see who they can catch.

            2. No, you are the one conflicted, CASTzeRO.

      2. Mueller isn’t ‘investigating the President’, he’s just making life hell for anybody who has ever dared to work for the President

        Anybody? Exaggerate much? Did you follow the Manafort trial? Innocent as a baby lamb, is he?

        investigations don’t mean squat. Convictions are what mean something.

        Of course, if you think the President can’t be indicted there will never be a prosecution or conviction of a sitting President. How convenient.

        1. Except that the Manafort case had nothing to do with Trump, except that Manafort worked for the Trump campaign years after the crimes were alleged to have occurred.

          1. Irrelevant, Bruce.

            Brett clearly implied that Mueller was unfairly “making life hell” for Manafort, among others.

            Should Manafort not have been prosecuted?

            1. Should the Manaforts of the world only be prosecuted if/once they have some connection to Trump?

              He was no less guilty before he joined Trump’s campaign. Washington is lousy with people equally guilty, but unmolested by the law, apparently because they are not connected to Trump. Some of them were immunized to testify against him!

              In a target rich environment, the choice of WHICH otherwise legitimate targets to go after can still be corrupt.

              1. Sticking your head up into a place with extra scrutiny can be trouble if you’re dirty.

                1. The extra scrutiny is present only because the the DOJ and FBI were trying to undermine the President. Started doing so before he was even elected.

                  Perhaps every President should have a nemesis with investigatory powers, selected by the opposition party. But at present only Trump get’s that, and that’s what I object to.

            2. Irrelevant? Wasn’t the investigation supposed to be about Trump and collusion with Russia? If it was so central, then why did he pass along the investigation/trial to some state-level department (sorry, I forget which organization at the moment).

        2. “Innocent as a baby lamb, is he?”

          Nobody’s innocent as a baby lamb.

          1. Or tastes as good with mint jelly.

          2. Especially Manafort.

            Just for my information, do you guys really think he has been treated unfairly – that he should not have been prosecuted?

            1. Yes, he has been treated unfairly, but no more so than any other federal criminal defendant. Prosecutorial misconduct is ubiquitous.

              Also, given how old the crimes he was charged with, I think absent the crusade against Trump and his connection to the Trump campaign, it’s unlikely he’d have been prosecuted at all.

              I did not vote for Trump, I do not support Trump.

              1. I don’t think it is a product of a crusade against Trump, other than the fact that Mueller has been tasked with investigating the Trump campaign’s connection to Russian election meddling. Mueller is clearly using these old charges as a lever to force Manafort to cooperate with the investigation. Fair or unfair, it’s pretty standard prosecutorial stuff, is it not?

                1. ” other than the fact that Mueller has been tasked with investigating the Trump campaign’s connection to Russian election meddling.”

                  “Alleged” connection. In the absence of any actually evidence of such a connection. What appears to have happened, based on public accounts, is that, some time during the early campaign, a faction within the FBI and DOJ hostile to Trump used an opposition research document to secure court permission to conduct surveillance on figures in the Trump campaign, (Which by a form of legal contagion, allowed surveillance of basically the whole campaign.) To get this done, they kept the court in the dark about various bits of information which would have impugned the reliability of the report, and used press accounts they knew were also sourced from the report as corroboration.

                  We’ve even learned that the meeting that is being presented as evidence of possible collusion was arranged by somebody working for the FBI. So they were manufacturing their own evidence!

                  This is a perfect example of why “investigations” by themselves properly have no legal implications. Except perhaps for certain figures within the DOJ and FBI, who are now in a “If you strike at the king you must kill him!” position; They either take Trump down or eventually they may be implicated in crimes themselves.

        3. Well, yes it is convenient that a sitting President cannot be tried for actions that he took as President. And can legally kill any criminal investigations into his affairs, should he wish. The first is necessary for runnng the country, and the latter a natural consequence of any prosecutorial or investigative discretion that anyone in the DoJ might have being derived and delegated from the President’s Artice II, Section 1, paragraph 1, clause 1, Executive power. We are governed by the consent of the governed, and that consent is enshrined in our inter generational contract, our Constitution. Under our form of government, there is nowhere else for a federal prosecutor to acquire the power to prosecute (or not), except from the sitting President. Anything else is tyranny, because it does not devolve from the consent of the governed.

          1. I should add that the Constitutional check on unlimited Executive power, and misuse of investigatory and prosecutorial powers is with Congress, both in their oversight capacity, and through impeachment and removal. Congress can investigate all they want into the Executive Branch, and can impeach and remove a President, but they can’t indict him or send him to prison.

          2. Now, that’s silly; Murder is a state crime.

            1. Not if it happens in Washington DC.

          3. Anything else is tyranny, because it does not devolve from the consent of the governed.

            First, there are those who think that even state prosecutors should not be allowed to indict the President.

            Second, you have a funny definition of tyranny.

        4. Where’s the beef, Bernie?

        5. It is my understanding that Manafort’s investigation was dropped, until the witch hunt!

      3. Remember, innocent until proven guilty?

        Unless you’re a goober and the accused is named Mueller.

        Evidence is the only way to “coerce” a confession.
        Trump may even wind up in a cell adjacent to Hillary

        1. “Trump may even wind up in a cell adjacent to Hillary”

          The day Hillary ends up in a cell is the day I’ll believe you actually have any worthwhile contribution to make on any of these threads

      4. Exactly. Mueller isn’t ‘investigating the President’, he’s just making life hell for anybody who has ever dared to work for the President,

        Illegal activity and daring to work for Trump are highly correlated.

        in the hope that, eventually, he can get one of them to implicate the President in a crime.

        Like breaking campaign finance law?

        Which he then won’t prosecute, because doing so would require evidence, not just a coerced confession by somebody else.

        He can’t prosecute because the DoJ says you can’t prosecute a sitting President.

        But even ignoring Cohen’s confession there’s more than enough evidence implicating Trump in violating campaign finance law.

        The point is valid: Even if he WAS investigating the President, investigations don’t mean squat. Convictions are what mean something.

        I do agree on this point. There may be political justification for stymieing a President who is clearly on their way to resignation or impeachment, but just an investigation isn’t sufficient ground.

        1. “Illegal activity and daring to work for Trump are highly correlated.”

          Daring to work for Trump and having a prosecutor turn your life upside down looking for legal activity are highly correlated. In the circles Manafort traveled, pretty much anybody subject to that level of scrutiny would end up being found to have done something criminal.

          But nobody sicced a special prosecutor on Hillary’s campaign staff.

          Standard statistics, Aluchko: If you only look in the Red boxes, and not the Blue ones, you can’t say there’s a correlation between the color of the box and the contents.

        2. OMG! Broken campaign finance laws! The horror!! I’m shocked, I tell you! Shocked!

          Please! We don’t even know that he did so or that the payments to the women were crimes. They were not adjudicated. Allen Dershowitz and former FEC chairman Bradley Smith, among others, say they weren’t crimes.

          The Bill Clinton and Obama campaigns were fined for breaking campaign finance laws, too (with Al Gore literally holding the bag of illegal foreign contributions), and it wasn’t a big deal. Now, it’s the end of the world!

    2. Exactly . . . Let’s not let our brains be Addled by the hysterical nonsense of the mainstream media and the unhinged left.

      1. How many convictions, and how close to the top of the Trump campaign, would be required for half-educated, bigoted goobers to conclude that Mueller’s investigation is not a partisan witch hunt?

        For example, Manafort seems positioned to be a two-time loser confronting excruciating pressure to cooperate with prosecutors to avoid an effective life sentence — and perhaps additional prosecutions beyond the presidential pardon power.

        Couldn’t happen to a nicer guy.

        1. He could start with one conviction that had something to do with what the investigation was supposed to be about. One indictment. One arrest.

          1. First, the timeline remains very fast for a white collar investigation.

            Second, he’s made a bunch of indictments that are quite within what the investigation is about.

        2. Pronounce the judgment of the Reverend! He has run out of Christian talking points with such judgment!

          1. The Reverend actually had any Christian talking points?

    3. And I’m curious, did you actually read Prof. Adler’s OP. He hasn’t advocated any new rule.

      1. To even entertain such an absurd notion, and come to such a middling conclusion, is to advocate for it.

  4. “John, what are you still doing up? It’s time to put the kids to bed.”

    “Just one second, honey.. I’m writing a blog!”

    Kidding aside, always nice to see these late night posts.

  5. I wouldn’t be surprised if we head toward a situation where no judges get confirmed when opposite parties hold the Presidency and Senate eventually forcing a reform similar to what happened to the Senate election process itself.

    1. I remember reading on quoras an idea of a constituitional amendment to reform judicial nominations. It went something like this.

      – The maximum number of Supreme Court justices shall be set at nine.
      – Judges nominated by rhe President are automatically confirmed unless a majority of the Senate votes to reject. (This will mean rejections will require an affirmative act from the Senate, rather than using tools like filibustering or keeping the nomination in the committee.)
      – the term for judges shall be ten years. (This will provide some insulation of the judiciary from the political process. A judge appointed by one President would serve long enough to outlast the appointing President.)
      – The amendment will take effect six years after ratification. (This prevents the amendment from imposing an immediate political cost on any political party.)
      – Any judge or Supreme Court justice still on the bench at the time the amendment takes effect shall continue to serve until death, resignation, or removal via the impeachment process. (This will prevent any particular political party from having an immediate benefit from the amendment.)

      1. Judges nominated by rhe President are automatically confirmed unless a majority of the Senate votes to reject. (This will mean rejections will require an affirmative act from the Senate, rather than using tools like filibustering or keeping the nomination in the committee.)

        Why would a default confirmation be better than a default non confirmation ?

        The Senate has other things to do besides hold confirmation votes – why should dealing with the President’s nominations be imposed on them as an immediate priority ? Particularly as even if your rule is restricted to judges, there are a lot of judges. Why should the President set the Senate’s timetable ? (And btw you’re going to have to put in some kind of timetable in your rule – does the Senate get a day, a week, a month, a year – what ?)

        The rule about the President only having ten days to veto a Bill is not at all the same. Vetoing a Bill takes twenty seconds, and requires no debates, no gatherings – just a consensus of one man and his pen. Making the Senate hop to to veto the President’s nominees wildly tips the balance of power from Legislative branch to Executive branch.

  6. Whatever may have happened in the past, the Kavanaugh case shows why confirmations during presidential investigations shouldn’t happen.

    First, the Senate is getting stonewalled on a big chunk of Kavanaugh’s record, by Republicans trying to protect Trump. Without the ability to see what’s being withheld, questions about Kavanaugh’s integrity with regard to reviewing the investigation go begging. That makes it look as if the Kavanaugh appointment could even be part of a tactic to protect Trump.

    Second, the appearance of a quid pro quo to a guilty President will attach to any subsequent arguments or votes in Trump’s favor which Kavanaugh might make. The stronger the evidence against Trump, the worse that would seem.

    A vote against Trump will raise a question among Trump’s backers?whether Kavanaugh, motivated by a desire to seem uncorrupted by the appointment, denied the President justice.

    Even a recusal followed by a deadlock would raise the question of whether Kavanaugh was motivated to protect the President who appointed him. If a case against the President does come before the Court, and Kavanaugh participates, whichever side he votes, or if he doesn’t vote and a tie results, he will taint his reputation for the remainder of his term on the Court, damaging his own legitimacy, and the Court’s as well.

    It’s an impossible situation, which should be dealt with by postponing consideration of Kavanaugh’s nomination until the investigation of Trump has concluded.

    1. This was not done with Ginsburg and Breyer.

      the precedent was set.

      1. The documents were provided with respect to Elena Kagan’s confirmation hearing. Another precedent set.

        My favorite precedent at the moment involves enlargement of the Supreme Court. I doubt that all of the race-targeting voter suppression and gerrymandering the Republicans can engineer would be enough to stop the installation of our tenth and eleventh justices in a few years.

        Barack Obama would be a grand tenth justice.

        1. “Barack Obama would be a grand tenth justice”

          You really need to stay on your meds

    2. the Senate is getting stonewalled on a big chunk of Kavanaugh’s record, by Republicans trying to protect Trump.

      Yes. The first question I would ask Kavanaugh is whether he will ask that all the records be made available to the Senate, with ample time to review them before a committee vote.

      1. Why should he bother? Not going to change any votes, or not enough to matter. Democrats with safe seats or who aren’t running for re-election have almost unanimously boycotted meeting with him, since they are going to vote against confirmation, regardless, and the Republicans will vote in lockstep out of fear of losing the Senate. The votes to confirm are there and aren’t going anywhere. Most everyone knows that the only reason to delay right now is the chance that the Democrats will retake the Senate and force a more progressive Justice on Trump. Everything else is show.

        1. Why then should he not bother?

          If nobody is going to look at it, just release it.

          Something is being hidden. Maybe it’s innocuous, maybe not.

          Besides, I’d like to hear him weasel out of it.

          1. “If you have nothing to hide, why do you object to the police searching your house?”

            Requesting documents about his time on the bench, or legal papers he’s written is one thing. But they’re demanding his personal emails, his wife’s emails, and even their phone history!

            It’s an obvious time wasting and harassment technique.

          2. The same exact things could be and were said about Obama ordering all his academic records sealed. Didn’t convince Dems then that the Grand Poobah was trying to hide anything. The precedent was set. Once the Dems learn that we all have to play by the same rule book we can start a discussion. Until then, battle lines will always be drawn.

      2. Asking about Judge Kozinski might be a better leadoff question.

        Set him on his heels.

    3. “First, the Senate is getting stonewalled on a big chunk of Kavanaugh’s record”

      So I hear; His mom still hasn’t turned over the drawings he did in kindergarten.

      1. Oh bullshit, Brett.

        Stop being an idiot.

        1. It’s called “sarcasm”, I suspect you’re acquainted with it.

    4. “postponing consideration of Kavanaugh’s nomination until”

      Doomsday, when the Supreme Court will finally lose its jurisdiction anyway.

    5. “Even a recusal followed by a deadlock would raise the question of whether Kavanaugh was motivated to protect the President who appointed him.”

      I thought recusal was the appropriate action where there was a potential conflict of interest.

      1. Recusal can be tactical, and appropriateness is always circumstantial.

  7. So there are two instances of a President under investigation nominating someone to the Supreme Court. That’s not much of a record.

    1. And it’s irrelevant since Trump is not under investigation.

      1. And even if he were “under investigation”, the “investigation” would be based on fabricated evidence.

        And that is why delaying confirmations while a President is “under investigation” is a nonstarter. Once used against Trump successfully, it will be replayed again and again. It’s horrible precedent, because we have seen, through the Russiagate “investigations, how high level career government employees working closely with appointed officials in an outgoing Administration can fabricate enough “evidence” to get the incoming/new President mired in an investigation, as happened here with Trump. You may not believe that this is what we are talking about here, but the evidence surely suggests it strongly, and, more importantly, a large percentage of Trump voters believe it.

        1. A large percentage of Trump voters believe every thing that conman and pathological liar says. Including that the evidence is “fabricated.”

          Apparently you and M.L. are in that group.

          1. more importantly, a large percentage of Trump voters believe it

            A large percentage of Trump supporters were and are birthers . . . and the percentage increased after release of the long-form certificate.

            A large percentage of Trump supporters reject the theory of evolution, preferring superstition to science.

            A large percentage of Trump supporters are half-educated, economically inadequate, intolerant losers.

            A large percentage of Trump supporters believe in death panels; that Sharia law is being implemented in the United States; and that the Pizzagate nonsense might be true.

            A substantial percentage of Trump supporters, shown the Trump and Obama inauguration photographs, insist that the Trump crowd is larger.

            A large percentage of Trump supporters believe former Pres. Obama to be a Muslim and Pres. Trump to be a Christian.

            A large percentage of the people with decision-making authority in the investigation have been Republicans.

            Other than that, great comment.

      2. Trump is both not under investigation and being unfairly investigated.

  8. I think that most everyone here, in their heart of hearts knows what is going on here. It’s all about politics and the political orientation of the judiciary. If the Democrats flip the Senate in the next election, they can force Trump to make more progressive choices for his judicial appointments, and if the Kavanaugh nomination can be delayed beyond the election, by whatever means, and the Senate is flipped, then the Democrats can significantly push the Supreme Court away from being conservative by voting down his confirmation. If they don’t succeed, and he is confirmed, there is a decent chance that the Court will stay reasonably conservative for at least a decade, maybe even a generation. After all, the next vacancy is likely not going to be from the conservative Justices, but rather the progressive ones, with Justice Ginsburg. So, the obvious purpose for both the idea of delaying confirmations as long as Trump is under investigations, and requiring documents that no one is going to read before the vote, is to delay the vote until the Democrats can possibly kill his nomination after retaking the Senate (and remember, there are a lot of Trump State Democratic Senators up for election this November, and some of the most vulnerable of them will likely vote to confirm before the election, but very likely won’t after the election, if safely re-elected for another six years).

    1. Based on what Republicans did with the Merrick Garland nomination, we are now in “anything goes” territory, precedent and history be damned.

      1. Unless Republicans change course, I believe it is reasonable to expect enlargement of the Court when the Democrats next control the presidency and the Senate.

        The Republicans’ recent enlargement of the Arizona Supreme Court would be a handy model.

        Let the Republicans have Justice Kavanaugh, and let him write whiny dissents for a few decades.

        1. This seems unlikely, though if Democrats win the Senate I could certainly see them blocking any future Trump appointments.

          1. Which do you perceive to be unlikely, (1) that the Democrats will control the presidency and Congress or (2) that Democrats would refrain from using that power to enlarge the Supreme Court?

        2. Kavanaugh will most likely occupy the “Kennedy seat”, or something very close to it

      2. You mean “after the Democrats banned the filibuster on judicial nominees in 2014 because they knew they were about to lose the Senate”.

        The unwritten rules about judicial nominees had been stable since the Reagan administration, until Obama and Reid (both of whom had opposed the exact same nuclear option in 2005) got greedy.

  9. Hoary analyses stretching back to the mid-19th century seem quaint, when we have so much recent precedent to draw upon.

    It might be helpful if our legal scholars could spend less time collecting data to support foregone conclusions and more time thinking about the way our legal and political norms are changing and have changed, and what that means for all of this mindless data collection. For instance, it is surely relevant to compare Trump’s tenure to Nixon’s, not just for what it shows about the approach Congress took to his judicial nominations, but for what it shows about the independence of the courts. Back then, the Court acted as an independent arbiter that ultimately forced Nixon to be held accountable for his crimes. We should want any Court today to act similarly, if required.

    What assurances do we have that it will? Particularly with two Trump-appointed members?

    Never mind that Republicans have recently made the reformation of the judicial branch in their corrupt image a high priority. They held open a seat for nearly a year in order to install Gorsuch; now they are trying to rush Kavanaugh through before any incriminating details from his record can make it to the public. To compare what’s happening today to any time in the past, when congressional and political norms still meant something, is in extreme bad faith. Of course, leave it to the VC.

    1. Skipping over the most recent precedent – Bill Clinton – does your already fallacy laden argument little credit.

      As for appointments of judges, well… after two years, Trump has placed 33 District Court judges – the same as Obama had placed at this point in his term. Many fewer than the 80 judges Obama placed in 2014, though.

    2. Given that Democrats are refusing to even talk to Kavanaugh, I really doubt they care what’s in those half million or so pages they’re demanding. It’s just an effort to run out the clock.

      1. A sensible, educated senator would wish to see the documents before conducting an interview.

        Other than that, great comment!

        1. A sensible, educated Senator would not turn down a chance to talk to a nominee. Unless he’d already made up his mind, and was avoiding exposure to contrary evidence.

          1. You figure Kavanaugh would participate in a second interview after the documents have been released?

            Have you ever interviewed candidates for a position?

          2. Wouldn’t work that way for me, Brett. If I had a job which needed a thoroughly vetted candidate, and couldn’t get documentation I needed, I would already have grounds for rejection. Contrary evidence wouldn’t be relevant. You think when the FBI conducts a pre-employment background check, an applicant who stonewalls the investigation ought to get a pass for a charming interview?

            1. How many documents do you need?

              Remember – the White House has already turned over more than 200,000 pages of documents. That’s more than all the documents asked for about Kagan.

              This isn’t stonewalling an investigation. This is an investigator looking at the evidence, not liking the result, and demanding more and more until he finds something he likes.

              1. How many documents do you need?

                All the relevant ones.

                What are the Republicans hiding?

                1. The calendar?

                  The Archives have stated that to prepare every document the Democrats have requested would take to the end of October at the earliest, and possibly several more months beyond that. This, despite the record-setting number of documents already handed over.

                  What, precisely, are the Democrats looking for? They already have all his rulings, his legal memos, and work publications. What will his phone records tell them? What do you think that the Republicans are “hiding” in there?

                2. You are presuming without evidence that there are relevant documents that haven’t already been turned over.

              2. Remember – the White House has already turned over more than 200,000 pages of documents.

                That reminds me of a new associate who prepared a draft of a brief that was at least four times the appropriate length.

                ‘What did you think?’ he asked when we met to review my revisions.

                ‘First, and most important, they don’t weigh ’em,’ I told him. ‘They read ’em.’

              3. This is an investigator looking at the evidence, not liking the result, and demanding more and more until he finds something he likes.

                Yes. The vetting process in a nutshell. The notion of vetting would be useless unless you supposed an investigator biased against the candidate’s acceptability.

                And in what universe is a vetting investigator supposed to respond trustingly and complacently to the assertion, “You can have these documents, but these others must be withheld.”

                1. In the universe where the vetting investigator is demanding the equivalent of kindergarten drawings.

                  He’s being considered for a judicial position, he’s been a judge for 12 years already. His judicial record is fair game, but they already have it in hand.

                  At some point it’s perfectly reasonable to conclude they’re just trying to run out the clock, stretch the confirmation vote out beyond the fall elections in the hope they can take the Senate.

                  Which, politically, is not unreasonable of them to want to do, but equally, it isn’t unreasonable of the Republicans to refuse to go along with it.

                2. No, the vetting process is to take *reasonable* care in looking at your candidate.
                  That means checking relevant records – not all records – and looking for substantial problems – not trivial ones. Irrelevant stuff should certainly be denied – why should any government candidate turn over their 6th grade diary, for example?

                  Again, WHY are the Democrats asking for records beyond his work? Why are they asking for his phone records, much less his wife’s phone records?

                  1. I don’t know what you’ve been reading, but documents being withheld are from his work in past administrations, hence the invocation of executive privileged.

                    1. I don’t see why his work as a lawyer for past administrations should be relevant. I’d say the same thing for a Democratic nominee.

                    2. It could be relevant to people who supposed his White House work was as a political activist, operator, and fixer, on behalf of Republicans. They might think such antics would demonstrate a temperament which almost anyone would find less-than-judicial.

                      Even if Kavanaugh had arguably demonstrated restraint later, on the bench, it would remain for many to wonder whether the greater judicial scope of the SCOTUS might deliver renewed occasion for the old bad partisan habits.

                      Republicans’ obvious sense of urgency about keeping that stuff under wraps encourages belief that after reviewing it, they decided it would damage Kavanaugh’s chances of getting confirmed. If Republicans think that, why shouldn’t everyone?

        2. If only Obama had been subject to such vetting. Oh, right. I forget. He’s a Democrat

      2. Given that Democrats are refusing to even talk to Kavanaugh, I really doubt they care what’s in those half million or so pages they’re demanding.

        Why?

        What’s the point of talking to Kavanaugh with limited information? So he can tell you he’s going to follow the law, call balls and strikes, bullshit, bullshit, etc. ?

    3. I believe Nixon appointed four members to the Supreme Court, all of whom were confirmed before the Watergate break-in had even taken place. That was the Court that “acted as an independent arbiter” to hold Nixon accountable. All were overwhelmingly confirmed on a bi-partisan basis, so you can see how our “legal and political norms are changing and have changed”. (One of the four, Blackmun, replaced LBJ crony and partner in collusion Abe Fortas, if you want to get into someone making the judicial branch into his “corrupt image” as a point of discussion.) So what in the world are you talking about?

    4. Wait, isn’t the process required to claim “back then, the Court acted as an independent arbiter that ultimately forced Nixon to be held accountable for his crimes. We should want any Court today to act similarly, if required” in violation of “it might be helpful if our legal scholars could spend less time collecting data to support foregone conclusions”?

  10. “…when the nominating President is under investigation for potentially impeachable offenses…” When is. APresident *not* under investigation by opposition?

  11. Just a brief comment – suppose Trump were to be impeached and removed, Mike Pence would become President.

    So anyone talking about delays and legitimacy should show how Pence’s nominations would be different than Trump’s.

    1. Sadly, Republicans do not, typically, restrict their judicial nominations to candidates recommended by the Federalist society. Trump has. Would Pence? I don’t know, but based on the track record of normal Republicans, I have no reason to suppose he would.

      More to the point, Trump had, remarkably, the political chops to win the Presidency while being out-spent 2-1, and having virtually all the media arrayed against him, and his own party barely pretending to back him. We KNOW Trump has major political juju.

      Pence? No particular evidence of it, he was chosen mainly on the basis that nobody had ANYTHING on him, so that there wouldn’t be any surprises.

      So, from a Democratic standpoint getting rid of Trump replaces him with somebody who didn’t have the capacity to have been elected President on his own merits, and would likely be easily beaten in 2020.

      From a Republican establishment standpoint, they’re rid of an insurgent they can’t control.

      This is primarily about the Uniparty ejecting a highly irritating foreign body, and a threat to its own continued dominance.

  12. “Of course, one could argue that the present situation is sufficiently distinct as to justify a different response by the Senate.”

    Yes, one can.

    Nixon appointing a justice deep in the investigations (say late 1974) would be different from a lower court judge and to balance things out so would Clinton appointing one — especially a swing one whose record is executive power friendly — later in the game. If someone swore under oath that Clinton conspired with him to break the law shortly before, for instance, I would be at least MORE wary, especially if it was a key vote.

    All the factors, and quite honestly Trump factors in (the recent McCain funeral suggests the broad belief that Trump governed differently than your average Republican, though I’m well aware true believers think Trump is just sorta median, except when they praise him as different) here, matter. This includes perhaps a higher concern for not release of documentation that was released in the past.

    1. I will continue my theory that an “honest broker” here — including a conservative who cites Lisa Blatt’s advice — would try to broker a compromise that gives something to each side. Thus, I’m somewhat pleased with the quoted qualifier — it at least leaves things somewhat open.

      The past here is of limited value, if somewhat useful, and we are left — as we always are — to judge everything in the context of the current situation with all the evidence available. The situation at hand is at least somewhat novel and the concerns by critics have some reasonable weight to them. (I gather some will disagree, but reasonable weight often results in disagreement.)

      Thus, something like letting enough time pass to get a full record (Senator Mitch McConnell himself worried about this nomination in part based on problems he saw arising on this very topic). There is no compelling need — as we saw with the last vacancy — for the seat to be filled by October. Critics like myself will not be fully satisfied but such is the way with compromise. As with Garland/Gorsuch, however, the Republicans are upping the reason for people — and not just partisans who never support conservative nominees — to be upset about the whole affair.

      Thus, an above the fray conservative sort should be concerned, not make a habit of sneering at passionate opposition & try to reach some common ground. I say this as a general matter.

      1. I see little reason in Republicans compromising on the open seat. Olive branches on the judiciary appear to have little effect on the opposing party (Roger Gregory). As noted above, leaving seats open for your party to fill has been going on for a good 30 years (“Some Reagan nominations are stalled in 1988, including Judith Hope and Pam Rymer, for the U.S. Courts of Appeals for the D.C. and Ninth Circuits, respectively, but again Iran-Contra is not the cause. Rather, as was widely reported at the time, Senate Democrats sought to stall those nominations in the hope of holding those seats open for a newly elected Democratic President.”).

        For lack of a better term, judicial vacancies are far too important politically to compromise when you don’t need to. And in particular to your suggestion, there is absolutely no purpose in doing so on the idea of intangible “good faith.” If you’re going to compromise on the Kennedy seat, you would you would only want to do so for a hard, tangible reform agreement which would likely require a constitutional amendment (16 year terms, super majority approval). There simply isn’t enough time to make that kind of deal happen before the Republicans face a serious chance of losing their leverage (2018 midterms).

        I’m very sympathetic to the idea that the current status quo is intolerable. But I can’t see any scenario where the Republicans compromising for the sake of compromise right now wouldn’t amount to insanity.

      2. 2/2

        Maybe if the Republicans hold the senate and either Breyer or RGB are forced to retire in 2019, then maybe a deal could be made to reform the nomination procedure. I am highly skeptical that the Republicans would actually do such a thing, but at least then it would be technically feasible.

        1. MM, don’t be so skeptical. Politics can swing that pendulum like you wouldn’t believe.

  13. Under a cloud of scandal…..didn’t Abe Fortas resign?

  14. Ironically, the Obozo administration engaged in multiple activities that should have brought impeachment – from unilaterally going to war against Libya without even informing congress, let alone getting permission, to running guns to Mexican drug cartels (Operation “Fast & Furious”.) The most noteworthy aspect of the investigation into Trump is how LITTLE they’ve found! Who would have expected Trump to be the most squeaky clean president in history? (Not I !!)

  15. So, wait, let me make sure I’ve got this right. This is a post about Tinder, an application primarily used, and to anyone not born yesterday, intended, to facilitate sexual hookups with no strings attached, and a convoluted analysis about how their April Fool’s marketing joke is not adequately moral? REALLY?

    For an encore, Irina will post about the scandal of beastiality practitioners patronizing puppy mills instead of adopting their victims from the local animal rescue. Next will be shock and horror that Jeffery Dahmer ate people who didn’t maintain a strictly organic diet. She’ll wrap up the series with outrage that the Parkland shooter used imported Chinese ammo and didn’t buy American.

    What’s even more depressing is the link to the author’s scholarship on the topic. What is a libertarian blog doing hosting the writings of someone who wants the government to get involved in policing flirtation? Will she also seek to impose civil or criminal penalties for faking orgasms or falsely claiming that a pair of jeans doesn’t make a woman look fat?

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