This isn’t the only name-related dig at Kavanaugh today by a liberal production with a following, it turns out. Which tells me, despite his long paper trail, they’ve got nothing and that confirmation is a fait accompli. Call the vote, Mitch.
— NARAL (@NARAL) July 11, 2018
“Brett” *is* a fratty moniker, it must be said, but men with dudebro names are woefully underrepresented on SCOTUS. We deserve a Court that looks like America. The next nominee should be named “Chad.”
As you marvel at the paucity of zingers in the clip below at the expense of a guy who’s been in the news every day for the past two weeks (the line about him being a cover model for “Generic Dads Monthly” made me smile, at least), note one bit of misinformation. The leading early Democratic argument against Kavanaugh has nothing to do with Roe or gay marriage or any of the familiar cultural hot buttons that are mashed when a SCOTUS seat opens up. The core critique is that he’ll be in the tank for Trump on Russiagate. Didn’t he write in a law review article some years ago that the presidency is too important to have the executive branch derailed by investigations and indictments? He’s going to protect Trump from Mueller! Colbert makes the same point here, citing the law review article. Which is shrewd, if cynical: If you want to galvanize lefties against Kavanaugh and there’s no smoking gun in his rulings about how he’ll vote on Roe, mash the Russiagate hot button instead.
But pay attention to the passage Colbert reads. Kavanaugh’s point about protecting the president from meddlesome investigations is that he believes Congress should pass something to provide that shield. By definition, he seems to believe that there’s nothing in the Constitution itself that would protect the executive; the legislature must act. What does that tell us about how he’s likely to rule if Trump gets indicted without any such statute being enacted first? Basically, notes Noah Feldman, the thing liberals keep citing as proof that Kavanaugh is in the tank on Russiagate actually suggests the opposite:
If a law by Congress is necessary to fix the problem, it follows that without such a law, it is perfectly permissible under the Constitution to investigate a sitting president, as Starr did.
Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article. Otherwise, there would be no pressing need for Congress to pass a law saying that he could not be. The courts could intervene and save the president from indictment.
Kavanaugh’s not saying the president can’t be indicted. He’s suggesting that he can be, unless Congress speaks up to the contrary. But he didn’t stop there. Benjamin Wittes notes that Kavanaugh went further in the same law-review piece:
Second, the article also makes a strong prudential case for independent investigations of the President and other high officials, given the inherent conflicts facing the attorney general in situations in which senior administration officials are investigative subjects. Kavanaugh made this argument at a time when, as noted above, the whole political culture was moving the other way. “Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases,” Kavanaugh writes. “Outside federal prosecutors are here to stay.” Critically, Kavanaugh’s proposed structural reforms to the independent counsel law were aimed not at weakening it but at shoring up the credibility and independence of the investigators against political attacks. Does this sound like someone who’s gunning for Mueller?
Kavanaugh’s proposal was that the independent counsel should be appointed by the president himself and confirmed by the Senate, not the attorney general (or deputy attorney general). That would give the executive some initial authority over who’s empowered to investigate him and/or his administration, which would make it hard for him to screech later about a “witch hunt.” The point, though, is that Kavanaugh isn’t some hands-off absolutist when it comes to probes of the president. He seems to agree that they’re necessary sometimes, and he might even be willing to uphold a presidential indictment barring an Act of Congress prohibiting it.
In the end, the core lefty critique of Kavanaugh may be … that he’s a conservative, period. He’s not a fire-breathing social conservative, he’s not an anti-Russiagate grumbler. He’s not some weird rando Trump plucked from Fox News. He’s a smart, well-educated, well-practiced judge, as conventional as Supreme Court picks come. But he’s a conservative, therefore too extreme to rule. Damon Linker wonders what the implications of that are:
If that dire assessment of the peril posed by supposedly normal Republican ideas and goals is valid, then it means that one of the country’s two parties poses something like an existential threat to our form of government — somewhat like the threat that an aggressive and potentially fatal form of cancer poses to the human body from the inside. On this view, Republicans are less a perfectly legitimate rival for power than a civic menace — a formidable enemy that needs to be decisively defeated. It’s hard to see how the ordinary back-and-forth of democratic politics, with two or more parties trading or sharing power, can be allowed to continue when the prospect of the other side’s political victory could precipitate the end of the system itself.
If Republicans really do pose such a threat, that’s very bad. But it’s also bad if Democrats merely think and act as if it’s true, since it implies that they now believe that the only way to be a “good American” is to … be a Democrat. The problem with Kavanaugh, after all, isn’t Trump’s corruption or the gratuitous cruelty and ineptitude of his administration. The problem with Kavanaugh is the agenda of his party and its ideology going back decades.
I think that’s also part of what drove the Barrett boomlet among the grassroots right. If being a conservative of any stripe is disqualifying to liberals, might as well give them a snoutful of the strongest stuff the right can muster. They find religious judges inherently untrustworthy? Let’s wallop them with the most religious judge we can find. It’s a struggle over the Overton window. The harder Democrats tug from the left, the harder Republicans will tug from the right. Trump passed on that this time, uncharacteristically, by choosing Kavanaugh instead. We’ll see if he benefits from it.