Democracy Dies in Darkness

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How a Trump Supreme Court nominee persuades the Senate

July 5, 2018 at 11:45 AM

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When it comes to replacing Justice Anthony M. Kennedy, columnist Ruth Marcus has some unsolicited advice for President Donald Trump and Senate Republicans. (Adriana Usero, Gillian Brockell/The Washington Post)

There are many reasons Democrats will want to reject whomever President Trump puts forward for the Supreme Court. Since ideology has become both a requirement for nomination, and a reason to oppose confirmation, you would expect nothing less. For those who do not want someone from the infamous preapproved list of judges, however, it seems their goal should be narrow-cast to those Republican senators who might be willing to break with the president. (As for Democrats, I have a sneaking suspicion that if enough Republicans break with Trump — one or two, depending on whether Sen. John McCain (R-Ariz.) votes — no Democrat will vote to rescue the nomination.)

Here is what should be required to reject a nominee who is otherwise qualified, is free from ethical concerns and is forthcoming (more about forthcoming later). First, on the subject of sitting on cases to which Trump or his associates are personally a party:

Members of the Senate, I understand the extraordinary moment in which we all find ourselves. The president and his most senior advisers — some of whom have already been indicted or entered into plea deals — are under scrutiny by a special counsel under the auspices of the Justice Department. Current Attorney General Jeff Sessions, as required by DOJ regulations and his ethical obligations, recused himself from oversight because he had been a close adviser during the campaign. Even if he was not the subject of the investigation, or was not a material witness, the appearance of a conflict of interest would have been so grave as to justify the recusal. The public, already highly distrustful of many government institutions, must never doubt that an attorney general of the United States, the chief lawyer for the American people, is beyond reproach.

In the same vein, I understand the concern that the president may have selected me because of my views on executive power, impeachment and/or indictment of a sitting president. I can assure you that no one — either working for the White House or from any outside group — has ever raised these issues even indirectly in ways that might touch upon the ongoing investigation. However, I also understand that even the mere appearance of a conflict of interest by a Supreme Court justice would be injurious to our constitutional democracy. It is well-known that the Supreme Court has no agreed upon ethics guide, but I will impose my own: I will not sit on any matter civil, criminal or constitutional involving the president as an individual. I will, of course, hear the plethora of cases concerning actions of the administration — including executive orders. However, when it is the president whose office or liability is at issue, I will not hear the case. I am happy to provide a statement to that effect in writing. 

Frankly, anything less than that would be insufficient and would raise deep concerns about a president that has already shattered democratic norms, attempted to obtain oaths of loyalty to him rather than the Constitution and assaulted the independence of the judiciary. If the nominee — who may sit on the court for decades — is not willing to recuse from a very finite group of cases involving the current president, there is ample reason to reject the nominee.

The next issue concerns abortion. It’s lovely that so many Republicans are perfectly certain that the judges that they chose to reverse decades of “liberal” jurisprudence won’t, in fact, reverse decades of liberal jurisprudence, including the most controversial decision of my lifetime, Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey, which followed). It is not necessary to say “I reverse Roe” in order to send the decision back to the states with broad latitude to effectively ban abortions in their states. Those bans are likely to include civil and perhaps criminal penalties (otherwise they are toothless) for women and their doctors. If Republicans are so certain this will not occur, they should not mind a clear, emphatic statement from the nominee. Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and others should not vote to confirm unless they hear something along the following lines:

Roe was decided in 1973, and affirmed in its central premise in 1992. For 45 years, the federal courts, on abortion, contraception, gay rights and other issues concerning personal autonomy, have protected Americans under the 14th Amendment, per the “right to privacy.” I believe the right to privacy is inextricably bound with our constitutional system so that to reverse course, deciding there is no right to privacy, or that it does not warrant an exacting level of scrutiny would be unjust, harmful to the court’s reputation and unfair to states, individuals, organizations, etc., which have relied upon this constitutional principle. In the case of  abortion, Casey applied an “undue burden” test to vindicate women’s individual rights. How courts assess specific statutes and the degree to which a fundamental right can be impaired are matters for future cases. However, that undue burden standard is settled law. It is not a “rational basis” test. 

Listen, senators are free to disbelieve a nominee even if he or she makes such assertions. They are free to conclude that a new justice will drain the “undue burden” test of any real meaning. But in the case of a so-called swing justice preselected by an outside group that has sought specific outcomes from judges it approves, anything less specific would be an unacceptable delegation of the power of advice and consent. If the Federalist Society “knows” on which side these judges are going to land, the Senate and the American people should darn well be let in on the secret.

The nominee, of course, may take the position that such assurances go too far, that he or she cannot opine on any matter that could conceivably come before the court. Of course, there is a good chance the nominee does not believe there is a constitutional right to privacy or that regulations on abortion must pass a undue burden test (i.e. the nominee intends to effectively reverse Roe). However, Collins and Murkowski, as well as others, should then feel perfectly free to reject the nominee.

Read more:

Here’s how we’ll recover from Trump

Trump’s racist views have not gone unnoticed

The White House tries to extend its cruel crusade against migrant families

I left the Republican Party. Now I want Democrats to take over.


Jennifer Rubin writes reported opinion from a center-right perspective for The Washington Post.

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