Stanford Prof. Michael McConnell on the Kavanaugh Nomination

"The irony is that Kavanaugh is a remarkably un-Trumpian nominee.... The notion that any Trump nominee is illegitimate because he would shield Trump from hypothetical future subpoenas or prosecutions is belied by history. Nixon's appointments voted against him in United States vs. Nixon, and Clinton's appointments voted against him in Clinton vs. Jones."

From a S.F. Chronicle op-ed today:

The opposition to Kavanaugh is actually not about him, but about the man who nominated him, Donald Trump. Democratic senators — especially those running for president or for re-election in liberal states — want to show their political base that they are part of the resistance to everything Trump stands for. The irony is that Kavanaugh is a remarkably un-Trumpian nominee.

Whereas Trump is populist, intentionally divisive, anti-establishment, immoderate, and contemptuous of many of traditional norms of comity and civility, Kavanaugh is a product of the establishment, gets along with colleagues across the spectrum, respects precedent and plays by the rules. Any Republican president would have placed Kavanaugh on his short list. He has no associations with the Trump wing of the Republican Party. Trump nominated him in deference to the legal elite of the party, including the Federalist Society, many of whom are as concerned about Trump's character and disposition as any Democrat.

The notion that any Trump nominee is illegitimate because he would shield Trump from hypothetical future subpoenas or prosecutions is belied by history. Nixon's appointments voted against him in United States vs. Nixon, and Clinton's appointments voted against him in Clinton vs. Jones. Kavanaugh has no closer relationship to Trump that those appointees did to the presidents who appointed them.

This strikes me as quite right; you can read the whole op-ed here.

Comments

[Josh R]

I think the opposition is more about how Kavanuagh is likely to rule on things like abortion and RFRA. That, and continued anger over Garland.

[Sarcastr0]

Certainly true, but Kavanaugh sure is taking on a lot of water on non-policy stuff and making it easy on them.

[DjDiverDan]

In your leftist fever dreams!

[Rev. Arthur L. Kirkland]

Not enough water to derail the nomination, but enough to help to float a proposal to enlarge the Supreme Court in a few years.

I am content.

[Don Nico]

Any action in 2020 to pack the court will be mirror the history of the nuclear option and devolve from their.
It will have to eliminate the supermajority rule in the Senate for legislation. It will invite a subsequent repack.Confirmation fights will attract even more money spent to slander nominees.
This year's battle will look like child's play. But the blessed Reverend will pray to his neon gods for them.

[swood1000]

Decisions such as Roe v. Wade politicized the Supreme Court, replacing the congenial approach toward these nominations prior to that. Packing the court would just keep us going in the same direction. I'm wondering how long it will be until candidates begin running for the Supreme Court nomination, declaring what decisions they would make if the president nominated them.

[Sarcastr0]

Ask AK noted, he'll get confirmed - it's the Court that's taking a bruising to it's legitimacy.

[Brett Bellmore]

Unfortunately, the only way the Court can avoid taking a bruising to it's legitimacy in the eyes of the left is for it to do things that will destroy its legitimacy in the eyes of the right.

Because we now have mutually exclusive conceptions of what it is legitimate for the Supreme court to do. It's literally the case that, for the left to think the Court legitimate, it must do what the right will view as illegitimate, and visa versa.

[Sarcastr0]

Your logic is sound, as far as it goes. The issue is that because your definition of the left is so overbroad compared to your restrictive and pure definition of the right, one matters a lot more than the other as a practical matter.

[Kazinski]

I don't think the left sees the Supreme Court as legitimate even when it rules their way, they're just happy for the win.

They don't see the constitution as legitimate so I can't see how they could have any regard for an institution with a primary function of sustaining the constitution. They merely see the Court as a repository of power so they want to control it.

[Sarcastr0]

I think your telepathy is pretty suspect. Liberals like the Constitution too, even if they disagree with you about it's substance and procedure.
If you've reached a conclusion where the people you disagree with are all power-mad tyrants, that's on you not them.

There are some for whom that is true (critical studies types spring to mind) but mainstream liberal thought isn't so radical.

[Bob from Ohio]

"it's the Court that's taking a bruising to it's legitimacy."

Good if true. But alas not true.

Its just pants on fire opposition by people who minds have been broken by Donald Trump.

[Sarcastr0]

National polls show this is a larger crowd than the fringe, or even just the party loyal.

That kind of disingenuity may be SOP for nominees these days, but the end result of Kavanaugh's e-mails and his maladroit responses to them looks to be nontrivial, at least in the short term.

And I'm not sure it'll be as good as you think it is. The result would be that the Court has a lot less room to make unpopular decisions, which is bad news for anyone who isn't a fan of pure democracy.

[Bob from Ohio]

The polls reflect Trump. That is all.

Nothing said or done at the hearing will have a single bit of impact on a future decision. Did the Thomas hearings?

Kav is a member of the club already and will be welcome with open arms.

[Sarcastr0]

Not sure I buy the assertion that polls on Kavanaugh reflect Trump more than the man himself, but you do you.

Thomas wasn't in the majority for most of his out there views. This creates a ready-made illegitimacy narrative should Alito, Gorsutch, Roberts, Thomas, and Kavanaugh decide to revisit something with public visibility, whether that be abortion or gay marriage or affirmative action or even voting rights.
Roberts, and IMO any practical Justice, takes that kind of institutional legitimacy concern into account.

Were the GOP to have taken a more deliberate pace, this wouldn't have as much public resonance beyond lefties who are already there.

[Bob from Ohio]

"taken a more deliberate pace"

Nominating Souter again would not work, he is to old.

"illegitimacy narrative "

The "narrative" would be the same no matter whom Trump nominated.

Kav is John Roberts II and you know how I feel about Roberts.

But I think we will take our chances on the "illegitimacy narrative" coming from our political opponents.

[Sarcastr0]

Narrative would be the same. It's the resonance outside of liberal circles would be different.

We will have to see about Kav vs. Roberts. I think he'll be pretty radical, actually.

Of course you'll take your chances. Conservative focus on judges is amazingly strong. I think you're taking some risks with the Republic to get there, and I don't like it.

[swood1000]

Conservative focus on judges is amazingly strong. I think you're taking some risks with the Republic to get there, and I don't like it.

Using the Supreme Court to take the abortion question away from the democratic process does not take risks with the Republic but using the Supreme Court to reverse that does?

[Bob from Ohio]

Libs believe in a one way ratchet.

Roe has now sorted the parties into one pro abortion and one anti abortion, isn't that a "risk"?

[Sarcastr0]

Sorry if I was unclear. It's not the policy change of overturning Roe or whatever. That's a big lift, but something the SCOTUS is made to do.

But after the Gorsuch and Kavanaugh nominations, I'm not sure if it is something the SCOTUS is equipped to do anymore.

It's the noms, not the cases.

[swood1000]

It's the noms, not the cases.

You're pointing to nominees without reference to any cases they might affect? Come now.

[swood1000]

Certainly true, but Kavanaugh sure is taking on a lot of water on non-policy stuff and making it easy on them.

What water did he take on?

[Bob from Ohio]

Phony "perjury" smears.

2020 candidates inventing Mueller discussions and bravely releasing documents cleared for release.

[swood1000]

It seems pretty obvious that there was no water taken on.

[Sarcastr0]

I don't think NRO is where you should check for such things. They aren't exactly disinterested parties.

Google Kavanaugh polls. Even Fox News notes he's taken a beating.

Might just be short term, but it ain't nothing.

[swood1000]

I don't think NRO is where you should check for such things. They aren't exactly disinterested parties.

I didn't link it as the authoritative viewpoint (would there be such a link?) but rather for the substance of their arguments.

Google Kavanaugh polls. Even Fox News notes he's taken a beating.

But the Kavanaugh polling has been driven by politics since before the hearings began (RBG in this environment would poll the same way). After the hearings his numbers appear to be just where they were at the beginning: 38% yes and 39% no, so I don't see how the numbers could be said to indicate taking on water in the hearings.

[ActualRightWingPatriot]

The left said that about John "Obamacare is a tax" Roberts and Anthony "Gay anal sex is human dignity" Kennedy.

[Rev. Arthur L. Kirkland]

The distinction between Kavanaugh and Trump appears to be that Trump came late to politics to push a personal brand at the expense of Republican tradition while Kavanaugh is has been a Republican establishment streetfighter throughout adulthood. This makes Trump unpredictably partisan and Kavanaugh predictably partisan.

[delewis]

Or perhaps Trump was the candidate the Right was willing to stomach to push their Judicial agenda through Congress in the right moment (now).

To think of those long memories yearning to avenge FDR's court stacking.

Kavanaugh, if confirmed, will be on the bench for long enough to see what fruit his decisions bring forth..which usually doesn't suit the person's party who brought him to power.

[Don Nico]

FDR was blocked in his effort to pack the Court.

[Rev. Arthur L. Kirkland]

Republicans enlarged the Arizona Supreme Court two years ago. Partisan right-wingers whimpering about a similar enlargement of the United States Supreme Court should and likely would be ignored by their betters.

[Tempe Jeff]

The Court backed down and agreed with his interpretation of the FRA and other Programs first. He backed off after that.

[Rigelsen]

"A switch in time saved nine."

[kramartini]

If Kavanaugh is confirmed, there is nothing that Trump could do to Kavanaugh if Kavanaugh fails to rule in Trump's favor. Thus, Kavanaugh becomes independent of Trump the moment Kavanaugh takes the oath of office.

[Rev. Arthur L. Kirkland]

Kavanaugh was selected mostly because of predictability.

[DjDiverDan]

And just how does this distinguish him from Justices Ginsburg, Breyer, Sotomayor, or Kagan? Democrats approve of Justices who are predictably "progressive" (i.e., perfectly willing to invent new constitutional rights for leftist constituencies, and willing to ignore the 2nd Amendment when it stands in the way of gun control) rulings, but it is morally reprehensible if the GOP follows that lead? Typical leftist logic.

[Rev. Arthur L. Kirkland]

In this context, elements of the predictability involving (somewhat newfound) deference to presidential authority and deference to Republican political preferences seem relevant.

[Red Rocks White Privilege]

elements of the predictability involving (somewhat newfound) deference to presidential authority and deference to Republican political preferences seem relevant.

Particularly amongst paranoid hicklibs.

[floridalegal]

So true. If only you had a history of the drivel and baiting of so-called Reverand, Arthur Kirkand

[Brett Bellmore]

The notion is more that any Trump nominee is illegitimate because they won't have been nominated by a Democrat. The actual personal details of the nominee are irrelevant.

Everything else is just pretext.

[Sarcastr0]

That's some strong projection, considering which side didn't meet with a nominee simply due to the President who nominated him.

A-priori dismissing your opposition's objections without engaging with them is not great for the Republic.

Beyond policy, beyond even the issues that arise with Trump possibly coming before the Court soon, Kavanaugh seems to have lied under oath in his 2006 nomination about his judge-shepherding work for the Bush Administration.

Regardless of how much you like his philosophy, just saying 'partisan claptrap' and nominating him regardless is not a good look for the future of Court or the Republic that relies upon it.

[David Nieporent]

Kavanaugh seems to have lied under oath in his 2006 nomination about his judge-shepherding work for the Bush Administration.

David Lat has pretty convincingly refuted that claim.

[Sarcastr0]

Thanks - I was looking for some opposition and finding mostly silence.

It's kinda helpful in going from perjury to just being deceitful, though if you're going to play so close to the chest, I'd hope each of your answers would be truthful on their own.

And Pryor isn't the only judge in question. There is some other one whose name escapes me as well, and it's similar 'I was not involved' wording.
And there is also the torture analysis he denies giving. And getting those hinky hacked e-mails.

What it looks like to me is that he was told he could just skate by his 2006 nomination on partisanship and cagey denials. And he did. But I'm not sure I think it's invalid for that to come back and bite him.

[Don Nico]

"getting those hinky hacked e-mails."

He may not have been a desired or even "authorized" recipient. But leaving the site open to anyone who wandered is is not hacking by any standards that hackers apply in their world.

[Sarcastr0]

Eh, the subject said something like spying, and he's certainly on the e-mail. His claim is that he didn't know how the e-mails were gotten. That's hard to believe.

And leaving your front door open is dumb, but it doesn't mean it's okay to come in and take stuff.

[MatthewSlyfield]

"That's hard to believe."

It would be even harder to prove beyond a reasonable doubt that he did know.

[David Nieporent]

Eh, the subject said something like spying, and he's certainly on the e-mail.

The Dems did a good job of conflating the issues, but the "spying" email was not about the misappropriated documents.

[Sarcastr0]

In a July 28, 2002, email, Miranda wrote Kavanaugh that Leahy's staff has distributed a confidential letter to Democratic staffers, and then described the contents of the letter.

An email written by Miranda on March 18, 2003, and copied to Kavanaugh, had the subject line was "for use and not distribution." Miranda wrote that "Dem staffers say that they have confidential information," and he then listed "points they make." Leahy said the points came from a draft of a letter written by his office. "We have every reason to believe that was taken," Leahy said.

Separately, an email written to Kavanaugh by a then-staffer to the Republican leadership, Barbara Ledeen, had the subject line "spying." Ledeen wrote that "I have a friend who is a mole for us on the left," and described information she had learned about spending plans by liberal groups on judicial nominations. "It is important to note that IF we have a nominee, we need to ZIP THAT PERSON RIGHT THROUGH THE PROCESS....WE CANNOT BEAT 20 MILLION DOLLARS," Ledeen wrote on June 5, 2003.

While you are technically correct, given that timeline, it's pretty easy to conclude that they are about the same misbegotten info.

[Bob from Ohio]

Leahy was kicked off the Intelligence Committee once for releasing classified info. He is projecting his own guilt.

All this "stolen" memo stuff is cover for Dems opposing a judge candidate solely on the basis of his race.

[Sarcastr0]

So you're arguing it's fabricated?

[bernard11]

Actually, Kavanaugh denied even seeing the documents he was sent.

Not suspecting they were stolen is not the only lie here.

[Brett Bellmore]

"Thanks - I was looking for some opposition and finding mostly silence."

To paraphrase, on the internet you can't hear people roll their eyes.

[MonitorsMost]

I don't feel like you could have looked very hard. When Vox of all places runs an article getting opinions from liberal law professors (including Tushnet) saying, "yeah, probably not", you've got to feel like you're strethcing at that point.

[Sarcastr0]

I saw Popehat on the no purjury but it wasn't exactly pushing back on the 'he lied' version of things.

[Leo Marvin]

It wasn't even "no perjury." He said those arguing "yes perjury" were doing so on grossly inadequate facts and context, but that what evidence he had seen concerned him and left him wanting to know more.

[bernard11]

Right. Most of the "defense" on Vox was about whether a perjury charge was justified and could be proven in a criminal trial.

That Kavanaugh lied is pretty clear. That he "probably didn't commit perjury" is a low bar indeed for a SCOTUS nominee. Tushnet, BTW, was largely agnostic on the issue. Here is what he said:

I'd have to know more detail about both what the documents say and about precisely what Kavanaugh said to be able to make a judgment. But "suggests the contrary" would be a rather feeble basis for a perjury charge."

[bernard11]

But his claims about the stolen memos seem like nonsense.

You get an email headed "spying," which talks of information from a mole on the other side, and it never occurs to you that the information provided might not have been obtained legitimately?

And even if he thought they were obtained legitimately, they were plainly documents prepared by the Democratic staff, yet

in 2004, Sen. Orrin Hatch asked him directly if he received "any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee." Kavanaugh responded, unequivocally, "No."

If he really couldn't figure that out he's about 1% as smart as everyone claims.

[Brett Bellmore]

I thought it was perfectly reasonable for the Senate to refuse a nominee by a president of the opposing party, in a Presidential election year. The Biden rule isn't crazy. Kind of chickenshit not to hold a vote, though.

Likewise, if the Democrats recapture the Senate this fall, and RBG croaks in early 2022, I will not complain if the Democrats refuse to act on a Trump nominee. Feel free to insult me if the scenario arrives, and I don't act this way.

Ideally, the stakes on judicial nominations should be low enough that these sorts of things matter. But it isn't the GOP that first got the bright idea of using the Supreme court as a substitute for winning elections. You reap what you sow, and this is part of the harvest.

[Sarcastr0]

I don't think party should stand for individual ideology. That's a ratchet that goes only one way and doesn't end well.

[Smooth Like a Rhapsody]

How late is too late in the process to bother with confirmation hearings?

[Sarcastr0]

What, you want me to draw a line? First, the GOP refusal had nothing to do with timing, and you belittle yourself by trying and pretend it did.

Second, your line-drawing game was a cute trick when I was in law school, but there is no principle to dictate where the timing becomes a problem, it's something that will be clear when it occurs.

Even the other conservatives on this forum don't believe it was actually an issue.

[Don Nico]

I agree with your comment. But I don't see how we de-escalate the fierce partisanship over then next several years. It certainly is not good for the country

[Sarcastr0]

I have no idea how we get out of this either, but I'm going to call out people who are being part of the problem and praise those who are not.

[Brett Bellmore]

The only way we get out of this is for judicial nominations to matter less, and the only way they matter less is if judges stop being super-legislators.

Unfortunately, I don't see any way the left abandons viewing the Supreme court as a super-legislature. From a living constitution viewpoint, there's nothing else the Supreme court can be, and the left is firmly committed to the notion that, not only is living constitutionalism the right way to interpret the Constitution, it's the only conceivable way.

It's hard to escape a place when you're committed to the idea that there isn't anywhere to escape to.

[swood1000]

Unfortunately, I don't see any way the left abandons viewing the Supreme court as a super-legislature.

Unless the right begins using the same approach (i.e. our favorite political goal is required by equal protection ? yours isn't because it isn't) for ends that the Democrats find outrageous. We could end up with a situation similar to when the Germans used poison gas, kind of regretted it when it was in turn used on them, and everybody agreed not to use it any more. However, it could be a while until the balance of power is equalized on the Court, at which time such a truce might be considered.

[Sarcastr0]

I'm just pretending the ends justify the means to show you how bad it is to act like this!!'

[Brett Bellmore]

"Unless the right begins using the same approach "

Wouldn't work. The left already thinks the right is using the same approach. They deny that there's any other approach to use.

So it wouldn't be viewed as payback, it would be viewed as just confirmation of what they knew all along.

This isn't like the Germans ceasing to use poison gas because it got used on them. (And because they figured out the wind could shift!) The Germans understood quite well that it was possible to not use poison gas.

While the left believe, sincerely, that there isn't anything but living constitutionalism, and anybody who claims otherwise is just lying.

[Josh R]

The right wants the Court to act as a super legislature on Obamacare, affirmative action, gun control, campaign finance regulations, anti-discrimination law and perhaps even net neutrality.

[ActualRightWingPatriot]

Except that the Constitution actually prohibits race based discrimination, gun bans, and explicitly protects free speech. It doesn't protect the right to kill a fetus or to stick one's penis into another man's butt.

[Josh R]

Construing freedom of speech to cover campaign finance regulations and objections to anti-discrimination law are just as much "legislating from the bench" as interpreting liberty to cover abortion and sodomy.

[Brett Bellmore]

Freedom of speech has to cover regulation of spending on speech, or else the government can just say to newspapers: "Ha, try running a newspaper without spending any money!"

It's like saying, "I can't regulate speech, but nothing says I can't regulate using air. Speak without breathing!" or, "I'm not regulating use of the press, just telling you you're not allowed to spend any money buying ink or paper!"

Advocates of censorship of political speech are just being too clever by saying that they're just regulating money. Nobody who isn't in favor of censorship falls for it.

[Sarcastr0]

We had campaign finance restrictions just fine for years without banning even one newspaper. I have faith that this is a line courts wouldn't have trouble drawing.

[bernard11]

Freedom of speech has to cover regulation of spending on speech, or else the government can just say to newspapers: "Ha, try running a newspaper without spending any money!"

Spending on speech is one thing. Contributions are something else. The idea that any check written to a campaign is speech is nonsense.

[ActualRightWingPatriot]

No, what's nonsense is the idea that it isn't. Instead of actual money donations, think of it as support. If you told the Times that it couldn't sell its excess printing capacity to another newspaper, that would be a clear infringement. If you tell someone that he can't loan out his bullhorn, that's a clear infringement. Freedom of speech necessarily covers the voluntarily given resources of other people.

[ActualRightWingPatriot]

Exactly. It's like when the gun banners think they're being oh so clever by proposing bans or heavy taxes on bullets.

[Josh R]

I observe the justices' votes on both sides in controversial decisions almost always magically align with their preferred policy outcome and conclude no one is being an impartial umpire. I do however acknowledge the Constitution is sufficiently vague, and controversial cases are sufficiently close, that people of good will can conclude the Constitution supports their preferred policy outcome.

But, I'm not buying the hubristic crap that their preferred policy outcome is absolutely demanded by the Constitution, and those who think otherwise are acting in bad faith.

Getting back to the topic of this post, the reason Kavanaugh is a big deal isn't because of how he will deal with Trump. It's because he will change the political makeup of the Court and as a result decisions will magically shift. That's why Garland was a big deal too.

[Rigelsen]

If you're serious about this, then you might start with yourself. See if you're applying the same scrutiny to people on your side as you're applying to people on the other side. And going back the other way, charity. Your postings here certainly do not give that impression.

[Kazinski]

The GOP met with Garland, they just didn't hold hearings. Actually they were pretty respectful of him, their were no ginned up phony ethics charges, no attempts to comb thru his personal life for dirt, no requests for every email he ever sent. They were pretty clear that it was just political and they just weren't going to let Barack Obama fill Scalia's seat.

I'd have a lot more respect for the Democrats if they took the same tack with Kavenaugh, instead of trying to manufacture reasons to oppose him.

[Sarcastr0]

Absent a few tokens, the GOP refused to meet with him.

I find it kinda convenient you've decided an ineffectual blockade by Dems would be the way to go versus the more effective usual nomination theatrics.

The only extraordinary thing about these hearings is the games the GOP played with the docs, the iffy stuff the docs have turned up, and how bad Kavanaugh is answering some of the more pointed questions.

[Kazinski]

I said I'd give them a lot more respect, I'm not sure which tactics are more effective. Beclowning themselves with all the theatrics maybe more effective with their base, but it won't stop Kavenaugh. I guess it comes down to what's the point of energizing the base if it won't stop a nominee, or win an election down the road?

Stopping Garland was pivotal in getting Trump elected I think. It's no coincidence that a lot of the blue collar workers that won the election in Michigan, Wisconsin, and Pennsylvania are gun owners and hunters, and Hillary said repeatedly that she was going to appoint a vote to repeal Heller if she won.

[Sarcastr0]

I'd venture that think the Dems look ridiculous because it's your ox getting gored. This is the same stuff we saw from the opposition with Sotomayor and Kagan. And Alito and Roberts, even. The only difference is that there is more of it and less legal questioning.

As I said above, the only thing that's going to suffer is the Court's legitimacy. And that's on the GOP both now and in 2006.

Everyone has their theory of This is How you Get Trump. And usually they tell more about the person than the 2016 election.

[larryseltzer]

This whole notion of Kavanaugh owing anything to Trump once he's confirmed is ludicrous. He has life tenure, the whole point of which is to insulate him from political pressure.

[bernard11]

It's not a question of whether he owes Trump anything, but whether his views of executive power are too favorable to Trump.

There is a strong chance that some aspect of Mueller's investigation will reach the Supreme Court. Kavanaugh doesn't have to owe Trump anything to rule in his favor if he legitimately thinks the President is above the law.

[Kazinski]

So far their hasn't been any indication that Mueller has enough on Trump or his campaign to reach any court, let alone the Supreme Court.

I'm going to go out on a limb and predict theirs going to be more members of the FBI and DOJ convicted for their actions in the investigation, than members of the Trump administration or campaign from the investigation.

[MonitorsMost]

"The opposition to Kavanaugh is actually not about him, but about the man who nominated him, Donald Trump."

I don't think that is right. Trying to tie Kavanaugh to Trump is definitely one of the tactics being used, but it's obviously pretty tenuous and I doubt most informed Democrats think Kavanaugh is an abnormal Republican nominee.

The primary reason Kavanaugh is being heavily opposed and subject to attack is because Kennedy's seat is really important. By just about any measure, his seat has been the regular tipping point for 25 years. Many of the Democratic political victories through the courts are in more jeopardy with Kavanaugh on the bench. They know that and it doesn't sit well for their political agenda. Republicans would be doing the same thing if the positions were reversed. We've seen the power of a strong five block before (Warren, Brennan, Douglas, Goldberg, Black).

[Sarcastr0]

Totally true. Blaming this on opposition to Trump is just another tactic to attack Democrats.

It's about the same policy stuff it's always been about. Trump just added more ammunition.

[MonitorsMost]

Well, I think Democrats are using opposition to Trump as a basis for opposing Kavanaugh. So I think that "attack" is probably accurate. But I don't think it's the strongest basis for opposition and I think it's probably one the Democrats themselves don't believe that much in.

Unfortunately, the Supreme Court is something the public at-large has exceptionally low knowledge regarding. So nuanced explanations probably aren't very helpful. Can't really blame Democrats from staying at the 1000' level and going with the greatest hits as the avenues of attack, even if they aren't particularly true or accurate. I politics, you're stuck with the electorate you have, not the electorate you wish you had.

[Joe_dallas]

"Many of the Democratic political victories through the courts are in more jeopardy with Kavanaugh on the bench."

you hit the nail on the head - "Political victories" on either side should never be "won" in court. the court should be neutral.

[nonzenze]

So no Heller?

[ Of course not . . . ]

[Smooth Like a Rhapsody]

Every conservative alive will give you Heller if, in return, we get to overturn all the made-up-out-of-penumbras rights that the liberals have gained over the last 80 years.
There is also the difference that Heller involved a right that is actually mentioned in the Constitution.

[nonzenze]

Every conservative alive will give you Heller if, in return, we get to overturn all the made-up-out-of-penumbras rights that the liberals have gained over the last 80 years.

Wow, we could have fewer gun rights and ALSO fewer other rights too?!! What an offer!

There is also the difference that Heller involved a right that is actually mentioned in the Constitution.

Man, if I had a nickel for every time people trot out the enumeration of certain rights to deny or disparage other rights, I could buy every commenter on this site a pocket Constitution.

[swood1000]

Man, if I had a nickel for every time people trot out the enumeration of certain rights to deny or disparage other rights, I could buy every commenter on this site a pocket Constitution.

According to Laurence Tribe (no right-winger) "The Ninth Amendment is solely concerned with constitutional interpretation. It is neither a grant of power nor a source of rights." http://www.constitution.org/9l.....st_9th.htm

Or, as Potter Stewart put it,

The Ninth Amendment?was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.

The alternative that you seemingly would prefer is that the founders couldn't be bothered to specify all the rights so they gave the federal judiciary a blank check to just name them as it saw fit.

[nonzenze]

The Ninth Amendment is solely concerned with constitutional interpretation. It is neither a grant of power nor a source of rights.

Even assuming I agreed with Tribe (and maybe I do, I haven't read enough to have a sound opinion on his view of the 9A), I'm not sure why the interpretive rule does not apply to SLaR. He was no doubt engaged in constitutional interpretation when disparaging "made up" rights which he putatively justified by comparing them to an enumerated right.

That is to say, this is quintessentially a question of how to interpret the constitution. And if I take your view that the 9A is a rule about how to interpret the constitution, then it strongly suggests that one not interpret the enumerated rights as evidence denying others.

The Ninth Amendment?was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.

Wouldn't it be entirely redundant with the tenth amendment in that case?

[swood1000]

Wouldn't it be entirely redundant with the tenth amendment in that case?

The ninth amendment is intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it by the Bill of Rights. The tenth amendment affirmatively says that unless the federal government was delegated a power to legislate in a certain area, that power belongs to the states of the people. There is no redundancy, the 9th just making clear that specifying one right does not constitute a delegation of power to legislate in areas not prohibited to it.

In fact, the supposition that the federal judiciary (a branch of the federal government) has the power to create rights not mentioned in the constitution and to prohibit the states from legislating in these areas is contradicted by the 10th amendment, since nowhere is such a power delegated to the federal judiciary.

What does SLaR stand for?

[nonzenze]

In reverse order:

SLaR = Smooth Like a Rhapsody -- the grandparent commenter

The ninth amendment is intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it by the Bill of Rights. The tenth amendment affirmatively says that unless the federal government was delegated a power to legislate in a certain area, that power belongs to the states of the people.

That really still strikes me as the same proposition stated twice with different negation:

?( ?x ( (x ? ~C) ? Fx ) ) versus ?x( (x ? C) ? ?Fx )

?\_(?)_/?

[swood1000]

That really still strikes me as the same proposition stated twice with different negation

9th - The bill of rights should not be interpreted to grant power to the federal government (which you are trying to have it do - i.e. the power of the federal judiciary to reduce the power of the states to legislate in any additional areas is chooses).

10th ? The bill of rights should be interpreted to reserve non-delegated power to the states or to the people. The tenth Amendment protects States from being commanded to enact (or coerced into enacting) particular laws at the behest of the Federal Government.

A does not have power X.
B does have power X. Are these two sentences redundant?

[Brett Bellmore]

Screw you and the horse you rode in. I'm not giving up Heller for anything.

The bottom line IS that Heller involved a right that is actually mentioned in the Constitution. And barely preserves a bit of it, to boot. There's no way to give up Heller without giving up on the rule of law, the alternative to Heller was an enumerated constitutional right erased.

By people who wouldn't stop with that right.

[Brett Bellmore]

The enumeration of certain rights does not deny or disparage others, but the non-enumeration of rights certainly does nothing to prove their existence. It leaves you needing a basis for claiming they exist, which enumeration at least gets you past.

[ActualRightWingPatriot]

I really hope Kennedy was the reason SCOTUS was denying cert on every gun case. I'd love to see may issue go away forever, as well as stupid bans on collapsible stocks and bayonet lugs.

[ActualRightWingPatriot]

If Heller was properly applied by the lower courts, I wouldn't make that trade, but the watered down Heller that the lower courts have implemented, sure.

[Rev. Arthur L. Kirkland]

The consequences for gun nuts would be among my favorite elements of enlargement of the Supreme Court.

If Republicans wish to avoid enlargement of the Supreme Court, they should win elections . . . and therefore should have refrained from electing Donald Trump.

[Brett Bellmore]

How do you win elections by refraining from electing your candidate?

[nonzenze]

I'm morbidly curious about how that would work too.

[VinniUSMC]

I can't tell if Artie is seriously this stupid, or if it's an act.

"They should win elections..."

You mean, like, winning the Presidency in 2016?

Those stupid pills you're on sure do work great.

[Kazinski]

There are a hundred million "gun nuts" in this country, I think the gun phobes should think long and hard about making them all outlaws by extra-constitutional means.

[Kazinski]

Its a shame Heller is considered political because it's just right there in black and white.

But for most of the left's big agenda wins in the supreme court, Roe and Oberkfell being prominent examples, not only is their no explicit text, but the men that wrote the text that provided the pretext for the decisions had no intention to provide a right to abortion or SSM.

[nonzenze]

Nor did the writers of the 1A intend to protect Twitter or the 4A intend to protect iPhones and GPS.

Or, at least, they didn't directly intend it. But they did intend to protect things like 'expression' and 'reasonableness' and 'liberty', while leaving it up to each generation to figure out what is expression within the meaning of the 1A and what is liberty within the meaning of the 14A.

[Eddy]

There's no shortage of establishmentarian ticket-punchers with stellar intellectual credentials, and Kavanaugh is one of them, as McConnell makes clear.

But here's the oath or affirmation he'd have to take as a Supreme Court justice, and the question is whether he'd carry out that oath or affirmation:

"I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

To carry out this oath, he'd have to oppose foreign *and domestic* enemies of the U. S. Constitution, even if those enemies happen to be fellow-judges who distort the Constitution (and if that doesn't make one an enemy of the Constitution I don't know what does).

[nonzenze]

Maybe from their point of view, BK is the one incorrectly interpreting the Constitution.

[Eddy]

If that's what they believe, then they should reject him regardless of his carefully-filled resume.

[Eddy]

I mean, he pledges to defend the Constitution, if it looks like he'll subvert it instead, who cares how nice he is or how many top jobs he's had?

Conversely, and this is what *I* think, if he's the closest we're likely to get to an actual defender of the Constitution, and the alternatives (in the event of a Democratic takeover of the Senate) would be worse, then I say confirm him even if he never held a job above traffic-court judge.

[Eddy]

(In fact, nominating some traffic-court judges might be a good idea so long as they have a demonstrated record of adhering to the Constitution)

[nonzenze]

Sure. But the point is that he'll have to serve on a court with people that have differing thoughts on what the Constitution requires and what is a 'distortion' of it.

[Eddy]

There's nothing in the judicial oath about playing well with others. But in any case, if Scalia and Ginsburg could be friends, without holding back in criticizing each others' jurisprudence, anything is possible.

I don't think either Scalia or Ginsburg pulled punches in their opinions for fear the other would be offended. If they were pulling punches, I'd love to see what a gloves-off opinion would be.

[Eddy]

It seems Scalia and Ginsburg could "hate the sin but love the sinner," something which we're frequently told in other contexts is impossible.

[JeffreyL]

I guess elections have consequences. Whoulda thunk it

If i may quote .... "We won" (Barak Hussein Obama)

That is all.

[Josh R]

Apparently, winning the Presidency isn't enough. You have to win the Senate too.

[Rev. Arthur L. Kirkland]

And, if you wish to alter the number of Supreme Court justices, the House.

[Brett Bellmore]

And if you want it to last, in perpetuity. Which is the scary part of court packing: What comes next, since it's so transparently futile if you let the other side ever get in a position to do it themselves once you've done it.

It's not a regular move in a democracy, where you expect parties to keep going into and out of power. It's the setup for a finishing move, where you end democracy and create a one party state.

Anybody who can think past the next election, and still advocates court packing, is planning on making elections futile.

[VinniUSMC]

That would be Artie's end game. Remember, he's "better" than everyone else.

[Bob from Ohio]

"You have to win the Senate too."

Its always been that way. Without control of the Senate, nominees are either defeated like Bork or watered down to get confirmation.

[Josh R]

Or perhaps if you don't control the Senate too, all nominees are categorically rejected?

[Brett Bellmore]

It isn't about the man who nominated him, but rather, the woman who didn't.

[Sarcastr0]

Brett, do you not think things would be just as fraught for any nominee replacing Kennedy regardless of party or history?

Nothing is special, except for the ammunition. Which thanks to Kavanaugh in 2006, Trump, and McConnell, is weighty although probably not determinative.

[MatthewSlyfield]

"Brett, do you not think things would be just as fraught for any nominee replacing Kennedy regardless of party or history?"

President HRC + a Republican controlled Senate and things would be orders of magnitude more fraught.

The public confirmation committee hearing process is a large part of the problem. These public hearings are, (and have been for as long as the Senate has been holding them*) more about the committee members engaging in political theater than in determining the fitness / qualifications of the nominees.

*The public confirmation hearings started in 1916, but weren't routinely held for all nominees until 1946

[Sarcastr0]

I won't venture on the Hillary counterfactual, but I do take issue with the public hearings being all about political theater. I agree that such is the case now (and that therefore we should stop holding them), but this seems pretty recent to me.

The Roberts nomination hearings were a great primer in all sorts of areas of law, and I had a blast listening to them back in the day. Senators went on, sure, but the nominee spoke the most, and spoke well.

I do suspect those days are over.

BTW, though, did anyone catch Kagan's hearings? I'll venture they were substantive and good it was also pretty low threat.

[nonzenze]

To be fair, nominating a conservative to replace a conservative or a liberal to replace a liberal (Roberts and Kagan) is pretty low-threat in general. It doesn't change the balance or composition of the court much.

[Stephen Lathrop]

For values of "low-threat," nonzenze, which encompass complete politicization of the SCOTUS, anyway. Nice demonstration of how pickled we all are in politicization of the courts. Not suggesting it's particularly blameworthy in your case, by the way. I just wish we could somehow get out of the habit of thinking that's normal.

[MatthewSlyfield]

As long as SCOTUS justices are nominated by one elected official(politician) and confirmed by a separate group that is all elected officials, asking that the process be apolitical is unrealistic at best and delusional at worst.

You can't remove politics from a political process.

Could we make the process less partisan, possibly, but I only see one path to doing so effectively. That path lies in reducing how much is at stake politically in the appointment of Supreme Court Justices.

There are really on two options for reducing how much is at stake politically.

Reduce the power of the Supreme Court relative to the political branches (probably not a good idea).

Significantly shrink the size, scope and authority of the entire federal government as a whole.

[Josh R]

How about requiring a two-thirds vote from the Senate?

[nonzenze]

I don't think it was ever normal to believe that SCOTUS was apolitical. At least not after Dred Scott.

[ Edit: I had originally mistyped it as Dread Scott, starring Sylvester Stallone as a Supreme Court justice gone rogue . . for JUSTICE. ]

[E6]

Professor McConnell now: "It is time for Americans to draw back from the hyper-partisanship that is poisoning our political life."

Professor McConnell when Mitch McConnell and Charles Grassley conspired to never hold hearings on Merrick Garland: "Oh well, it's a stand-off."

In addition to this rank hypocrisy, the major premise of the op-ed is false. Democratic opposition is not about Trump. No one on the judiciary committee argued that Trump does not have the power to nominate judges (I would, but that's another subject). They focused primarily on his views on substantive issues to determine if he's as rigid a conservative as everyone looking at his record already knows he is.

[Smooth Like a Rhapsody]

The fact that you would "argue that Trump doesn't have the authority to nominate judges" probably establishes beyond much doubt that you're a crank; but: exactly HOW late in the process is too late to expect the Senate to go through the confirmation process.
And: are you aware of the (so-called) Biden Rule?

[bernard11]

HOW late in the process is too late to expect the Senate to go through the confirmation process.

Fair question.

I'd say when there is not enough time before the election to have hearings, etc.

In other words, as long as there is sufficient time for a normal confirmation process it's not too late.

[Smooth Like a Rhapsody]

Fair answer.
Does Congress normally meet when the political conventions are occurring?

[bernard11]

I'm glad you referred to it as the "so-called" rule, since it was never a rule.

[The original jack burton]

"Democratic opposition is not about Trump."

And how many of the Dem senators said in advance that they would reject ANYONE that Trump nominated?

[Sarcastr0]

That's a weak attempt.

Unlike the entire GOP when similarly situated, the few Dems who said this explained why, and it was more than 'I hate Trump.'

[E6]

As far as I know, zero.

[bernard11]

If Kavanaugh is unacceptable as a justice to liberals and Democrats, no Republican nominee would pass muster. As sure as tit-for-tat, the result would be that no Democratic nominee in the future will be evaluated on his or her judicial merits, either. That would be a sharp departure from the times when Justices Ginsburg could be confirmed 96-3 and Antonin Scalia 98-0. The effect on our judicial system and our ability to survive as a politically pluralistic nation could be severe.

Laughable. The "tit-for-tat" happened before the Kavanaugh nomination. No Obama nominee was going to be evaluated on the merits in 2016, and there was talk of blocking all nominees if Clinton won. The "sharp departure" was the Republican action on Garland, not Democratic opposition to Kavanaugh.

And Prof. McConnell thoroughly approved of blocking Garland. No talk of "hyperpartisanship" then.

Instead:

There is one course of action that satisfies the needs of Republican senators and President Obama. The Republicans will refrain from personal or ideological attacks on the nominee, but also refrain from any actions on the nomination before the election. The president and his allies will pretend to be outraged by this inaction, but their outrage is nothing but theater for the politically naive.

Nice. Approval of hyperpartisanship and a cheap shot at Obama and Democrats.

[Don Nico]

Even Bork got got a vote. If McC was so convinced of his ability to keep his members in-line he would have bought the nomination to the floor immediately after Garland met with members. Senators could have read his Court record record as was also the case this year for BK.
No need for the hearings theater.

[bernard11]

Right.

McConnell knew that Garland would be confirmed if there was a vote.

[Brett Bellmore]

No, I think he thought he was being clever, not acting on Garland, so that the nomination would remain live. Then if it started looking like a Hillary blowout, he could have held a quick vote to confirm before the nomination was withdrawn.

Instead the race tightened, so he didn't see reason to exercise that option. But actually holding the vote would have foreclosed it.

[bernard11]

He's not going to have a "quick vote."

First, I think it unlikely that Obama would withdraw the nomination if it just looked like Clinton was going to win easily. Second, if Obama wanted to withdraw it, there is the whole business of hearings and so on to go through, which would give him ample time.

If that was McConnell's strategy it would have made more sense to start the process but slow-walk it and then figure out an excuse for not voting before the election.

[Bob from Ohio]

"McConnell knew that Garland would be confirmed if there was a vote."

If the GOP caucus wanted a vote, they would have gotten one.

The leader is just first among equals, not a dictator.

But even if you are right, so what? Its politics, not bean bag.

Mac took a chance and won big.

[Josh R]

I have little doubt that the GOP caucus didn't want a vote, but perhaps a majority of the Senate did?

If how the Garland nomination was treated is within the boundaries of acceptable hardball politics, there is no room for complaint in anything Democrats have done so far, and likely not for things they will do in the future.

[Bob from Ohio]

"there is no room for complaint"

True. Garland invites escalation. The natural majority in the Senate is GOP so most times, the GOP will have the majority.

But the smears done by the Dems in the Kav hearings are SOP for Dems, as Bork and Thomas would tell you.

[Josh R]

I agree Democrats smeared Bork and Thomas. And I wish they could have successfully made their case on the merits of the nominee's ideology (both were not within mainstream conservatism in my view). But, that's hardball politics and Garland was an escalation beyond what Democrats had done.

[nonzenze]

I don't think Bork's complete disregard for the 1A ranks anywhere near mainstream conservative. Or at least I certainly hope not.

[bernard11]

Bork was not "smeared."

Do you really want a Supreme Court Justice who thinks literature and movies, for example, are not protected by the First Amendment?

That is what you would have gotten with Bork.

[David Nieporent]

Do you really want a Supreme Court Justice who thinks literature and movies, for example, are not protected by the First Amendment?

Uh, apparently you missed the Citizens United case.

[swood1000]

If McC was so convinced of his ability to keep his members in-line he would have bought the nomination to the floor immediately after Garland met with members.

No, because not holding a vote protected Republicans from having to cast a vote that would have been unpopular with a number of their constituents.

[bernard11]

Maybe, but some of the unpopular votes might have been "Aye," some "Nay."

[Rev. Arthur L. Kirkland]

McConnell is a polemical political partisan with a thin academic veneer. Not that there's anything necessarily wrong with that. I would prefer that he did not use that position to advance the causes of backwardness and bigotry, but the stale-thinking and intolerant have rights, too.

I will enjoy his observations concerning a proposal to enlarge the Supreme Court. Mostly the caterwauling and whimpering.

[VinniUSMC]

polemical political partisan with a thin academic veneer.

"Good when I like the result, backwards/bigotry when I don't".

Good thing you're the only person who believes you are "better" than anyone.

[Sarcastr0]

I'd be more skeptical of the ad hominem were it not for the example above of Prof McConnell turning on a dime from Garland to Kavanaugh.

As it is, of course one must still address his substantive arguments regardless of his consistency, but as a separate matter McConnell doesn't look great here.

[Joe_JP]

Eugene Volokh endorsing this claptrap is disappointing but sadly not unsurprising.

[Joe_JP]

Eugene Volokh endorsing this claptrap is disappointing but sadly not unsurprising.

[bernard11]

Yes.

[Milesthatsme]

Some of these premises are right, but I think the attribution of motive is oversimplified. Are Senators from both sides playing for political points? Of course. Are many Democrats embittered about Garland? Sure. Are they only about trying to do collateral damage to Trump through a Kavanaugh rejection? No. Does anyone seriously think Kavanaugh and Trump share similar personality traits or intellectual abilities? Of course not.

The first substantive concern is that the court be 'stacked' for a generation, with deliberate political consequences. It may be nice to recall an era of the 'political pluralism' that saw Scalia or Ginsburg appointed. It is very explicitly now part of the *political* (and not just legal) agenda of both parties to effect change through the court. Arguably, this forms a larger part of the conservative agenda, as the left-wing agenda does not have a distaste for regulation/legislation.

The second concern is that Kavanaugh may take a very deferential view of the executive, and a very expansive view of presidential immunities. The issue isn't quid pro quo--Kavanaugh protecting his appointer because of the appointment, which pattern could arguably be "belied by history". It's that Kavanaugh has actually evidenced this view, at least to some extent, in his judicial and extra-judicial writings.

[bernard11]

Democrats tried to resurrect claims that Kavanaugh misled the committee back at the time of his previous confirmation to the D.C. circuit, but there is no more evidence of prevarication now than there was then.

Actually, there is more evidence. The emails were not available then. I bet there is still more being concealed.

No word from the professor as to an obligation to provide a complete record. I'm sure he has all the usual excuses.

The opposition to Kavanaugh is actually not about him, but about the man who nominated him, Donald Trump. Democratic senators ? especially those running for president or for re-election in liberal states ? want to show their political base that they are part of the resistance to everything Trump stands for. The irony is that Kavanaugh is a remarkably un-Trumpian nominee.

Mind-reading. Apparently, while Kavanaugh and the Republicans are full of good faith, seriousness, and comity, Democratic motives are always cheap politics. Yeah, that's the way to stop the "poisoning" of our political life. The opposition is partly about the fact that Kavanaugh seems to have a very expansive view of executive powers and Presidential immunities. In view of the current situation it's a perfectly realistic concern.

The sneering is uncalled for, and exacerbates the problem McConnell professes to be concerned about.

[Don Nico]

Bernard,

Of course the R's are not of good faith, their "questions" were softballs at best. But listening to the D's questioning, I'd also question their good faith with the exceptions of Klobuchar, Whitehouse, and Coons.

I say this having worked for a progressive D senator for six years.

[bernard11]

Don,

No doubt you can question the good faith of some D's. But McConnell's tone is really one-sided. Read his WSJ article on the Garland nomination and you will see what I mean.

[Don Nico]

Bernard,

I have no doubt whatsoever that McConnell is totally one sided. He surely is no Howard Baker.

It is unfortunately what I have come to expect.

[Bob from Ohio]

"No doubt you can question the good faith of some D's. "

Yes, like your future nominee Harris.

Where is that lawyer at some big firm that had an "improper" Mueller discussion?

[Sarcastr0]

You can tell who the right thinks is a threat.
Are you seeing the Harris birthers? LOL.

We'll see about Harris. Her prosecutor history leaves some skeletons in her closet for the growing criminal justice reform movement within the Democratic Party.

[Bob from Ohio]

"threat"?

Harris is an attempt to merge the Obama experiment with the "first woman" one.

Took an unpopular war and a giant financial panic to push Obama over the top. Even Donald Trump could not make second one work.

We will see if Harris has the Obama magic or the Clinton one.

[Sarcastr0]

Maybe. But given internal Democratic Party politics, I'm not sure we will see. (I myself am not too impressed as of yet. She's like Rubio - got her eyes too much on the prize.)

It should be fun, though.

[swood1000]

Of course the R's are not of good faith, their "questions" were softballs at best.

Those who fail to try to sink their own nominee are not of good faith?

[Stephen Lathrop]

Coons, especially, has caught my attention as someone worth listening to.

[ScottK]

I oppose nominees who have perjured themselves in prior proceedings, or who believe in limited government only for white males who own guns.

I also oppose commentators who substitute the word "prevaricated" for "lied under oath."

Otherwise, I'm a pretty agreeable middle-of-the-road lawyer.

[swood1000]

or who believe in limited government only for white males who own guns.

A reference would be helpful.

[Stephen Lathrop]

swood, what kind of reference would you prefer? A reference to show a tendency to limit government powers with regard to guns? Or a reference to show a tendency to expand government powers with regard to privacy constrictions? Both kinds seem readily available.

[VinniUSMC]

How about a reference to the entirety of the comment that swood quoted?

No?

[Careless]

What about the other kinds you're pretending aren't needed to make his post more than risible nonsense? Go on, sl, tell us how Kavanaugh ties those rights to being a white Male

[Smooth Like a Rhapsody]

But, when referring to Monica's ex bf, "prevaricator-in-chief" is much pithier.

[santamonica811]

"But, when referring to Monica's ex bf..."

I assume you meant to type a "j" instead of an "f" at the end, right?

[Brett Bellmore]

Did somebody nominate Taney while I wasn't looking?

[QuantumBoxCat]

I'm still mad at Adams for all those last minute appointments, whereby the Federalists retreated to the Judiciary. So much outrage!!! Damn those Federalists

[David Welker]

This is, perhaps unintentionally, actually a good point.

Concerns about a politicized judiciary have always been with us.

[MatthewSlyfield]

As long as judges are appointed/confirmed by politicians, it can not be otherwise. Thinking it can be borders on being delusional.

[Beldar]

One of the Trump legal team's main talking points is that as a matter of law, the POTUS, because he's at the apex of the Executive Branch and ultimately responsible for its prosecutorial function, cannot be guilty of obstruction of justice.

Kavanaugh, as a young lawyer on the Starr team, drafted the proposed articles of impeachment against Clinton that included among its counts Clinton's obstruction of justice (including subornation of perjury and witness tampering) in connection with the Starr investigation.

Does that strike you as someone likely to agree today with the Trump team?

[bernard11]

Well, it seems his thinking has conveniently changed.

[Brett Bellmore]

I think that's not true, clearly the President CAN commit obstruction of justice. Just not by the normal exercise of his powers.

A President is entitled to fire subordinates, or, as the chief executive of prosecutors, exercise prosecutorial discretion. Heck, he can up and pardon people already found guilty! So doing these things isn't obstruction of justice, any more than a chief prosecutor is obstructing justice by telling a Jr. prosecutor, "Don't bother prosecuting that widow, you've got more important cases to work on."

But Clinton wasn't obstructing justice by exercising his ordinary powers, he was obstructing justice by committing crimes, and directing others to commit crimes. Destruction of evidence, suborning perjury, committing perjury. These are obstruction of justice even by a President, because they aren't exercising the powers of the office, they're just crimes.

If you catch Trump doing these things, they're relevant to obstruction of justice charges. Firing Comey? Certainly not!

[Sarcastr0]

obstructing justice by exercising his ordinary powers

This is where we are.

[Josh R]

You make it sound like Nixon was just acting within his executive powers when told Haldeman to have CIA officials tell FBI director Pat Gray to stop the Watergate investigation.

[Beldar]

I agree of course, Mr. Bellmore, that Clinton didn't attempt to fire anyone who was investigating or prosecuting him. Instead, he launched and maintained a publicity campaign designed to delegitimize them, which is dirty politics but not a crime.

But it wasn't just William Jefferson Clinton to told Monica Lewinsky to commit perjury, or coached his secretary to deny that they'd been alone together. It was the President of the United States, and the level of express and implied compulsion in enlisting them to participation in his conspiracy very much depended on him holding that office.

Moreover, the "normal exercise of his powers" is not a standard recognized in law. Certainly the "normal exercise of [a POTUS'] powers" includes appointing, supervising, and on occasion firing Executive Branch subordinates. But Nixon's Saturday Night Massacre was indeed included among the factual premises for the House Judiciary Committee's draft articles of impeachment.

If Trump had something to hide and he fired Comey with the subjective intention that the firing would help Trump keep that something hidden, then yes, that's obstruction of justice. That's the "corrupt heart," the mental state which distinguishes between doing one's job and abusing one's position.

[Beldar]

I don't claim to know, by the way, either whether Trump was motivated by a corrupt heart, nor what he might have been trying to hide. Nor do I have any clue what Mueller's view on that might be, or what supporting evidence he might have. Certainly at a minimum Mueller has a ton of evidence that's consistent with the "corrupt heart" hypothesis ? e.g., by rapidly volunteering multiple and mutually inconsistent accounts of his intentions. But that's equally consistent with Trump simply being an idiot, which again, isn't a crime.

As for Comey: He needed to be fired, and Trump's mistake was in not announcing his firing and the identity of his proposed replacement during the transition. Comey is an unethical weasel, but that isn't dispositive of the question of Trump's subjective intentions in firing him.

[Beldar]

To me, the most fascinating bit of Kavanaugh's testimony came when Sen. Blumenthal secured Kavanaugh's ready agreement that his name hadn't been on the May 2016 list of "example" judges whom Trump might consider for SCOTUS vacancies (Gorsuch wasn't on that list either), nor on the expanded list from Sep 2016 to which Trump publicly committed himself to choose from exclusively as the quid pro quo for his deal to secure Ted Cruz' endorsement. Blumenthal tried to imply that in "the only thing that changed" in the interim before Kavanaugh's name appeared on the latest version of the list (from Nov 2017), which did include Kavanaugh's name for the first time, was Kavanaugh's dissent in the minor illegal alien abortion case, which Blumenthal insisted was "the signal" from Kavanaugh to Trump that Kavanaugh would overrule Roe.

Kavanaugh denied that, but said that he was aware that some of his friends and supporters had lobbied to have his name at least considered for addition to the list. I think that's exactly what happened ? and thus, in a sort of "Revenge of the Bushies," may Donald Trump suffer a massive disappointment when and if Mueller gives up on negotiations and subpoenas Trump to appear, sans counsel and under oath, before a grand jury.

[dwb68]

The pressing question is how this oped made it passed the SF progressive censors, and as a follow on, how can we repeat this impressive feat?

[William_Zanzinger]

"The notion that any Trump nominee is illegitimate because he would shield Trump from hypothetical future subpoenas or prosecutions is belied by history. Nixon's appointments voted against him in United States vs. Nixon, and Clinton's appointments voted against him in Clinton vs. Jones. Kavanaugh has no closer relationship to Trump that those appointees did to the presidents who appointed them."

This is less relevant than it seems, if you consider the timing of the respective nominations relative to the investigations of allegations against those presidents.

[David Welker]

The premise of the article, that Democrats oppose Kavanaugh because Trump nominated him, seems incorrect.

Democrats oppose Kavanaugh because he will probably work with the conservatives already appointed to the Supreme Court to rule against liberal legislation for decades while entrenching conservative policy through the judiciary. Now, on some level, it is true that conservatives are not necessarily out to "get" liberal policy and rule it unconstitutional. Only, "it just so happens" that conservative judicial philosophy tends to "require" such results much more often for liberal policies than conservative policies. There is a reason that conservatives and not liberals gravitate towards some methods of interpretation.

Another way to put it is that the other branches of ceded too much ground to the Supreme Court on policy. Fortunately, this is easily reversible, although it will require some so-called "constitutional hardball" to achieve.

[Brett Bellmore]

The opposition isn't because Trump nominated him, in the sense that, if Trump had publicly said, "Hey, Hillary, who should I nominate?" and gone with her recommendation, Democrats would have been ok with that.

The opposition is because Trump nominated the sort of Justice Trump ran on nominating.

[PoxOnBothYourHouses]

David Welker: "The premise of the article, that Democrats oppose Kavanaugh because Trump nominated him, seems incorrect. ....... (Etc.)"

Let's turn that around as a thought experiment:

----

"The premise of the article, that Republicans oppose Garland because Obama nominated him, seems incorrect.

Republicans oppose Garland because he will probably work with the Liberals already appointed to the Supreme Court to rule against conservative legislation for decades while entrenching progressive policy through the judiciary. Now, on some level, it is true that progressives are not necessarily out to "get" conservative policy and rule it unconstitutional. Only, "it just so happens" that progressive judicial philosophy tends to "require" such results much more often for conservative policies than liberal policies. There is a reason that progressives and not conservatives gravitate towards some methods of interpretation.

Another way to put it is that the other branches of ceded too much ground to the Supreme Court on policy. Fortunately, this is easily reversible, although it will require some so-called "constitutional hardball" to achieve."

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(continued below)

[PoxOnBothYourHouses]

(continued)

It works partly, but only partly. It isn't a full reversal because the Democrats have long pursued judicial supremacy that bypasses the legislative process. Indeed, they have worked to limit Republican nominations to the judiciary since the Reagan administration. By the G. H. W. Bush administration they successfully held open ten appellate positions to be filled by Clinton. Thus began the tit-for-tat escalation that brought us to this point. Early in the G. W. Bush administration, some progressive scholars called for the use of parliamentary procedures such as the filibuster to deny /any/ SCOTUS appointments. It was all pretty open that any means necessary should be employed, with the goal of packing the courts -- the first time for something like that since Roosevelt way back in the 30's.

The Republicans don't get a pass. They first suggested killing the filibuster on nominations, though the Democrats actually did it. They were the first to use the now-familiar tactic of Senate inaction to actually kill a SCOTUS nomination. And they successfully taunted the Democrats into filibustering the Gorsuch nomination, giving them the excuse to ax SCOTUS filibusters. BUT -- the Democrats' policy has been pretty transparent, and it hasn't been any "it just so happens" winking-and-nodding. It's been out there for anyone who pays attention.

[Stephen Lathrop]

The notion that any Trump nominee is illegitimate because he would shield Trump from hypothetical future subpoenas or prosecutions is belied by history.

A statement which misunderstands what history is. Hint: history is never, not once, nor even slightly, a means of predicting the future. Nor is thinking historical thinking if it seeks to find explanations for current or future events in the past. Nor are topics which lie in a recent past with probable or demonstrable present reverberations proper historical topics.

You may suppose, probably foolishly, that some pattern of events seen in recent years past will be deterministically repeated in the near future. But that supposition needs to be founded on some non-historical kind of reasoning. Proper historical thinking can't accomplish that kind of objective, because to be historical it needs to exclude all present-minded entanglements.

The question of Kavanaugh's future legitimacy considered in relation to Trump is, for now, completely outside the scope of history. It is more properly a question for purely political analysis. Good luck to anyone who presumes an ability to find a deterministic principle worth paying attention to in today's politics.

[swood1000]

Hint: history is never, not once, nor even slightly, a means of predicting the future.

Doesn't the fact that dogs have a history of chasing cats enable us to say that it is more likely than not that a dog in the future will chase a cat if given the chance?

[swood1000]

In fact isn't the scientific method concerned with predictions based on historical observations?

[David Nieporent]

A statement which misunderstands what history is. Hint: history is never, not once, nor even slightly, a means of predicting the future.

Santayana: "Those who cannot remember the past are condemned to repeat it."

Lathrop: "History, schmistory."

[Joe_JP]

Sigh.

It is not 'quite right' that "opposition to Kavanaugh is actually not about him, but about the man who nominated him." It actually is about him (including positions -- the fact on STYLE he is not Trumpian might please the likes of Sasse, but on executive power and other issues, he does overlap with Trump) including the importance of the fifth vote he is filling.

It's fine, as far as it goes, a Ted Cruz supporter, a conservative in various ways, supports this nominee. But, it is with respect claptrap that if someone else nominated this guy that Democrats would suddenly not care, e.g., about how he would vote on abortion rights. Again, that's merely an example. Obviously, Trump nominating the guy helps (the whole "unindicted conspirator" argument, which again, I'm not here to debate).

It is depressing that simple things cannot be granted.

[Joe_JP]

BTW, someone who sucks up to Trump after being nominated, acts in an unethical way at best during the confirmation hearings [defenses repeatedly were of the "not enough evidence of perjury" quality, while leaving open quite serious arguments against him] and various evidence of hardball Republican politics over the years (including during the Clinton investigation) is not quite as much as a "gentleman" type as some put him out to be.