Chuck Schumer: In light of Cohen and Manafort, Brett Kavanaugh's confirmation hearing must be delayed

Uh, no. Ninety-eight percent of the reason for electing this guy was because he’d deliver on Supreme Court picks. And he has! Postponing Kavanaugh’s hearing on the eve of confirmation would be one of the great political Leon Lett moves of all time.

I’ll stick with football metaphors and say that this is a fine Hail Mary pass by Schumer to try to beat Kavanaugh at the eleventh hour but there are no receivers in the end zone. His main point is that the country can’t afford someone on the high court who believes, as Kavanaugh allegedly does, that a sitting president can’t be indicted. You want to put POTUS on trial, you need to impeach him first. But that’s not some outlandish outre position; it’s the Justice Department’s own view. It may well be Bob Mueller’s personal view. It’s a view that comes directly out of Scalia’s dissent in Morrison v. Olson and has been shared by many conservative lawyers since. You may not like the idea of the prosecution power belonging exclusively to the president when that president happens to be Trump, but Article II is what it is. What would be a stronger sign of Kavanaugh’s unfitness for judicial office: If he continued to hold the view he already held about a president being unindictable by his own inferior officers or if he suddenly decided to make an arbitrary exception for Trump because, well, the “Apprentice” guy sure does seem shady?

All Kavanaugh’s view amounts to is “Congress needs to act against the president before the DOJ can.” If Schumer can’t muster consensus in his own branch for that *and* if voters won’t elect senators and reps in November who’ll form that consensus for him then he has much bigger problems than who’s on the Supreme Court. He should ask himself what’s wrong with his own party that the electorate is unlikely to hand Democrats total control of government despite 18 months of Trump at his Trumpiest.

He’s also skirting around the idea here (without ever directly articulating it) that Kavanaugh’s confirmation would be illegitimate at a moment when criminal dominoes related to the election are falling all around POTUS. If he wants to make that case, he should make it forthrightly. Does he want to claim that if only Stormy Daniels were able to speak out in October 2016 that the Rust Belt would have stayed blue? That’s hard to believe given that Trump survived the “Access Hollywood” tape and a raft of sexual assault/harassment allegations at the time. (It would also complicate the liberal argument that Comey’s letter was the dagger in Hillary’s chances.) Does he mean to imply instead that Trump should be denied any confirmations because we simply can’t trust his justices to rule fairly on criminal matters pertaining to Trump himself that might come before the Court? He can’t mean that: Neither Ginsburg nor Breyer recused themselves in the Clinton v. Jones case in 1997 despite having been appointed by the petitioner in the case. Granted, that was a civil case, not a criminal one, but there’s no reason that should matter to the calculus.

Schumer can’t be suggesting either that Kavanaugh would have a conflict of interest if he chose to rule on Russiagate or another criminal matter pertaining to Trump. One of the nice things about life tenure for federal judges is that they have no interest in the president’s welfare once they’re seated. They’re unbeholden to him the moment the Senate votes to confirm them. There’s nothing Trump could do to punish Kavanaugh if Kavanaugh votes against him in a showdown with Mueller or DOJ prosecutors. If the idea is that Kavanaugh might side with Trump simply out of loyalty or gratitude for his appointment, then (a) you’re accusing him of being a raw political hack, a charge that should be fleshed out with evidence, and (b) you’re stuck believing that Ginsburg and Breyer should have stepped down from the Clinton case and, really, that any justice is unfit to rule in a case to which the administration of the president who appointed them is a party. Which would be lots and lots of cases.

To make a semi-serious claim that Kavanaugh’s confirmation should be delayed, you have to go macro on Russiagate and say that so long as the jury’s still out on whether Trump colluded with Russia to earn an advantage in 2016, he should be denied the most important perks of the office. That would be a hard claim to make when we’re more than a year removed from Gorsuch’s confirmation under the same circumstances. And it forces you into an uncomfortable realization: Even if the lefty dream came true and Mueller nuked Trump on collusion, there’s no indication that Mike Pence would be implicated. He, not Hillary Clinton, would make this appointment instead, however unfair that might seem to Democrats. Is he going to go squishier with his picks than Trump would? If anything, he’d probably look for more hardcore pro-life warriors. Although, of course, depending on when that happened, he might face a Democratic majority in the Senate instead of a Republican one.

Anyway, Schumer knows all this, just like he knows that Kavanaugh is obliged to duck questions about Roe in private conversation. That doesn’t stop him from feigning shock about it in the first few minutes of the clip, though, just like Kavanaugh’s perfectly mainstream view about whether a president can be prosecuted doesn’t stop him from trying to make hay of it. If he can’t stop the confirmation, he can at least try to squeeze a little midterm juice out of it.

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