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The Kavanaugh Confirmation

The U.S. Senate, indeed the entire nation, is focused on whether Trump Supreme Court nominee Brett Kavanaugh will be confirmed to the Court.  There is really very little suspense about the nomination as Republicans have the minimum number of votes needed to confirm after eliminating the previous 60 vote requirement and do not need any Democratic support for confirmation.  That said, should Kavanaugh be confirmed?

Elections have consequences and the President nominates individuals to fill vacancies on the Court.  The Senate performs its role to “advise and consent” which really is just a check to ensure the individual is qualified, not an extremist outside the mainstream, and not someone who poses a threat to judicial order.  It is not the Senate’s duty to substitute its own preferences as to who should serve on the Court.

Over the years, nominees, regardless of the President’s party or the party holding the majority, have been confirmed by large margins, receiving over 80 or 90 votes, except with a few rare exceptions where there were significant challenges with the nominee.  In recent years, with hyper-partisanship and extreme bases of support, confirmations have been far more contentious to accede to party politics.  Many Senators vote against a nominee just to appease their base of support and conformations squeak by on closer, party-oriented votes.

Both Republicans and Democrats have engaged in confirmation shenanigans over the years, although the Democrats have not sunk as low as the Republicans.  The Republican Senate leadership would not even meet with or allow a hearing for Merrick Garland, an extremely well qualified and highly regarded nominee, for President Obama’s last year in office.  Republicans then changed the rules to only require a simple majority rather than 60 votes.  This move removes the critical heightened importance of the Supreme Court and paramount concern over who should sit on it.  The majority can simply appoint a new justice by fiat with no realistic review process.  And now this year, Republicans are concealing 90% of the nominee’s professional work, thus denying any real review of his record and requiring what amounts to a blind vote.  This is not advise and consent by any measure.  It is a fraud on the American people.

Several Senators lamented that these confirmation hearings no longer have value, assuming they once did.  They make an excellent point.  For the good of the nation, the nonsense must stop and there must be a return to normal order.  The American people must have faith and confidence in the Senate as well as the Supreme Court.  This also includes Presidents nominating truly qualified, deserving, and meritorious individuals with distinguished judicial records.

Presidents are well-aware of the nominee’s views on all issues and no doubt that knowledge, if not outright commitment, was the primary reason for the selection.  The farce of a hearing and all the questions therein will not impact this.  Elections have consequences and Presidents get to appoint qualified people who hold judicial and political views similar to their own.  That is not a reason to deny confirmation, unless of course the nominee’s views are truly out the mainstream or pose a risk to judicial order.

Here we are on the verge of Brett Kavanaugh becoming the next Supreme Court Justice and there is virtually no chance he will not be confirmed, as Republicans have enough votes with their new “simple majority” rule.  Under normal circumstances, he would likely be confirmed by large numbers.  But this is not a normal year and our country is in a serious national crisis, one that potentially threatens our future.  Now is not the time for Brett Kavanaugh.  If Republican Senators truly care about the nation and our national security, they will vote no.  The nation needs at least a few Republican Senators to step up for the good of the country and show some leadership, some conviction, at least a spine.

There are many critical issues facing the nation that will percolate through the judiciary.  The issue of Presidential authority and the integrity of our government institutions reigns supreme as we are poised to see who will join the Supreme Court.  The hearing, that otherwise generated very little new knowledge about the judge, served to validate legitimate concerns over Kavanaugh’s views of Presidential authority ad government integrity.  Unlike traditional Conservatives and Republicans, his views on this issue are extreme, espousing belief in an expanded, if not unfettered, level of Presidential power.  Where is the Republican concern?  Not even a challenge.

Normally, the Senate evaluate a nominee based upon review of their professional work in addition to questioning.  In this case, Republicans have concealed 90% of Kavanaugh’s work so that it cannot be considered or evaluated during his confirmation.   This unprecedented move should cause an immediate halt to the confirmation process.  Apparently, Bill Burck, a private attorney, who represents six separate defendants in the ongoing Russia probe, and is a friend and former colleague of Kavanaugh, is the one person determining to conceal 90% of Kavanaugh’s professional work product.  This defies any logic whatsoever.  It is the epitome of conflict of interest and government corruption.

If the Republicans are concealing 90% of his work, an astonishingly high amount, the only possible conclusion is that they are hiding controversial, disqualifying information.  There should not even be a vote, let alone confirmation, until and unless Republicans release much more of his work.  This is a mockery of the Senate and fraud on the American people.  Republicans are abusing their power with a sham hearing because they know they have the votes to confirm despite this disgusting charade.  Is there really no integrity amongst Senate Republicans?  Even a few?

While it is true that President Clinton nominated Justice Breyer, who was confirmed, while Clinton was still under investigation, that Is not quite the same issue we have today.  President Trump is not simply under investigation, but he is under investigation for issues pertaining to national security and the integrity of our elections, including his own.  He is under investigation for conduct relating to cooperation with Russia to influence the 2016 election.  The investigation includes questionable business and financial ties between Trump businesses and Russian organized crime and questionable business interests.  More recently, we have the development where the President is now an unnamed coconspirator in several indictments.  Trump and Clinton are starkly different situations.  Trump should not be making appointments.  There is no doubt Republicans would deny a Democratic President under similar circumstances the opportunity to appoint a justice.

Brett Kavanaugh was not on the official list the President provided of individuals he would consider for the Supreme Court.  While not binding, Trump stated he would only pick from this list, a list that contained plenty of qualified individuals and from which he selected Neal Gorsuch.  Only after the initiation of the Mueller Investigation did Trump add Kavanaugh to his list.  The reason is clear.  He did not need additional qualified jurists.  He added Kavanaugh strictly because of his views on Presidential power and because he was a loyal Republican partisan operative upon who Trump could count for support.

With the President’s legal team hesitant to allow him to sit for an interview with Robert Mueller, mostly due to their shocking belief the President cannot tell the truth, there is a strong possibility that Mueller will subpoena the President.  That is a reasonable action because it makes sense investigators would want President Trump’s perspective on the various pertinent matters and issues of his involvement therein.  The issue of whether a President may be subpoenaed will most definitely rise quickly to the Supreme Court.  With respect to Kavanaugh, the case would invoke his views of an expansive Presidential authority and his partisan operative credentials.  He would be a friend to Trump on the Court and that is solely why he was nominated.  Majority Leader Mitch McConnell previously told President Trump Kavanaugh would be the hardest to confirm.  So why did Trump do it?  The Mueller Investigation has him scared.

Brett Kavanaugh has been caught lying in this and previous confirmations.  At a minimum, he has attempted to conceal involvement in certain things by feigning lack of memory.  There is evidence that Kavanaugh has spoken with President Trump’s personal lawyer Marc Kasowitz, or his firm, about Robert Mueller and the investigation.  Kavanaugh pretended he was not familiar with the law firm even though a good friend and colleague of his works there.  If he is concealing the existence of this conversation, clearly the substance of the conversation is troublesome for his confirmation.  He has also been extremely evasive concerning official Senate work product that had been stolen by Republican staffers in the Bush Administration from several Democratic Senators.  Kavanaugh knew these were stolen, but nonetheless used the information to further controversial judicial nominations by President Bush.  These serious integrity matters raise significant questions about his confirmation.  Republican refusal to allow review of his records compounds the problem and supports concerns that these are serious issues that could derail his nomination.

Additionally, Kavanaugh was part of Special Counsel Ken Starr’s staff working on the investigation of Bill Clinton.  That investigation, after many years of incredible effort to incriminate the Clintons, could only substantiate one allegation – Bill Clinton’s relationship with Monica Lewinsky.  I do not condone Clinton’s actions and have always maintained it was reprehensible and a disgrace of the office.  However, according to reports of those associated with the investigation, Kavanaugh was part of a group of right wing operatives that was leaking carefully selected nuggets of information from the investigation with the intent to smear the Clintons with false inuendo about things for which they had no evidence.  This type of reckless disregard for the sanctity of an official investigation and for the truth as well as conducting partisan smear tactics should call serious questions into Kavanaugh’s fitness to sit as a jurist on the nation’s highest court.  At a minimum, there should be further disclosure of relevant documents so that Senators may review the matter before they must vote.

Kavanaugh has published articles discussing his opinion that Presidents should not be subject to investigation while in office nor should they be subject to criminal or civil cases while in office.  These views are directly relevant to the strong possibility that President Trump will face criminal charges and a civil suit during his Presidency.  There are also the recent revelations, strongly corroborated, concerning Trump’s competency and capacity to serve.  With Kavanaugh’s owed loyalty, that poses strong conflicts of interest when these cases make their way to the Supreme Court.  Nevertheless, Kavanaugh testified that he would not recuse himself from these matters.

The Supreme Court must be able to hear cases unencumbered by conflicts of interest or other impediments.  The American people have been growing increasingly weary of our institutions, and with good reason.  Hyper-partisanship and tribal politics have infested them all, resulting in much lower functionality and even less credibility.  Adding Kavanaugh to the Supreme Court will further threaten the people’s confidence in the Court to properly hear and adjudicate cases.  The views he brings will lead to dangerous opinions that aid Trump and weaken democracy.  Now is not the time to risk Kavanaugh.  The country’s future is at stake.

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