The current occupant of the Oval Office is under investigation for obstruction of justice and may soon test the Supreme Court on questions of executive power—something Judge Kavanaugh happens to favor in the extreme. And Judge Kavanaugh testified to the Senate in 2006 he was never privy to early information on the Bush administration’s planning and perpetration of torture – that he only read about it in the newspaper. Later we learned he had indeed been apprised of the torture program, was involved in at least one heated meeting on the subject, and had been called on to give legal advice about how the Supreme Court might rule on detention questions. …Judge Kavanaugh said himself his time as President Bush’s Staff Secretary was ‘in many ways among the most instructive’ for his career as a judge. The Senate and the American people should have this information. Republicans ought to join us in demanding it.
In short, Democrats want to know just how candid Kavanaugh has been and see how far his generous view of executive power extends. Considering that we are talking about the swing seat on the Supreme Court, their demands don’t seem unreasonable. Why not dump a load of documents in their laps and put the issue of staff secretary service to bed?
While the issue of the documents from the George W. Bush administration is serious, it is merely a warm-up for what could be the main event: the demand for information as to how Kavanaugh got on the Federalist Society’s approved list, what interviews or questionnaires he filled out, records of any meetings with Federalist Society members and — here’s the big one — records of any financial contributions from the Federalist Society leaders to Trump, the Trump campaign and the Trump inauguration. Not to put too fine a point on things, but an anonymous $1 million donation to Trump’s inauguration was facilitated by right-wing legal activists, including Federalist Society executive vice president Leonard Leo. Just what did the still-unknown donor(s) hope to influence?
The entire process of outsourcing the vetting process to a nontransparent third-party group is troubling. That group can ask questions that would be inappropriate for the White House to raise. That group can, with winks and nods, get assurances on issues of importance, ranging from guns to antitrust to abortion, without revealing the group’s funders. Imagine if the shoe were on the other foot. Let’s say a group funded by George Soros compiled a list of solid progressive judges, gave massive amounts of money to a Democratic president and got the president to restrict his selection to the names that Soros’s group had given its seal of approval to. Republicans would have a meltdown — and rightly so.
Perhaps this is all entirely innocuous. Maybe no one at the Federalist Society ever interviewed Kavanaugh, asked probing questions of him, put him through a test “murder board” or made certain that its donors’ interests would be well served with Kavanaugh on the bench. If so, complete disclosure of every scrap of paper relating to Kavanaugh, Federalist Society communications with the White House and Federalist Society leaders’ donations should not worry the White House.
What we are talking about is the potential corruption of the Supreme Court — literally allowing nontransparent and unaccountable outside interests to pick the most critical justice in a generation. That does not past the smell test. For Democrats and Republicans like Sen. Jeff Flake (R-Ariz.) who have bemoaned the attacks on democratic norms and institutions, this is a make-or-break moment.
And while we are talking about corruption or the appearance of corruption, the Senate owes the American people and the Supreme Court itself the assurance that any ruling on the Russia investigation currently underway (e.g. on executive privilege, the ability to indict a sitting president, the president’s obligation to respond to a subpoena) cannot be determined by a judge picked while that investigation is pending. (By contrast, Justice Neil Gorsuch’s nomination was announced in January 2017, before Robert S. Mueller III was picked as special counsel many of the events relating to the obstruction issue arose.) At the very least, Kavanaugh should recuse himself right now, in writing, from matters relating to Trump’s involvement in the Russia investigation. Without such a promise, Trump will be allowed to pick a critical justice in his own case (not simply cases generically involving the administration). Would it have been appropriate for a Supreme Court justice who had been nominated during the Watergate investigation to rule on Watergate cases?
In sum, Trump is currently under a serious legal cloud. Some might argue that he shouldn’t get any pick for the court unless the circumstances of his election and his post-election conduct are adjudicated. I don’t think we should go so far (although I hear the complaints about the treatment of Judge Merrick Garland). What is appropriate is an exacting inquiry from the Senate to protect the crown jewel of the judiciary branch. We shouldn’t let special interests get secret assurances from nominees, nor should we let a president under a dark legal cloud pick his own judge. Get the Federalist Society documents, obtain Kavanaugh’s recusal on Trump-Russia matters, and then give him his hearing and vote.