President Trump faces credible allegations, made under oath, of committing a crime to win the presidency. We have his voice on tape scheming with former fixer Michael Cohen to pay hush money through subterfuge. His shameless party wants to jam through the nomination of a Supreme Court justice before an election, before we can determine whether Trump in effect defrauded voters and whether there are grounds for indictment or impeachment. It is a stunningly reckless power play that could taint the Supreme Court’s legitimacy for decades.
Pleading with two Republicans to slow down the train is useless. Not a single one, let alone two, dare cross Trump and his base. They are determined to rush through a nomination that even in normal times should be decided by voters and the new Senate. They will not even release Kavanaugh’s full record, let alone wait to find out if Trump should even be president.
Because the GOP is incapable of putting democratic institutions and the rule of law above partisanship, the task of preserving the Supreme Court’s integrity falls to the nominee himself, Kavanaugh. If he is the judge of such sterling character as Republicans insist, he’ll do two things. First, he will insist his entire record during his tenure as White House staff secretary to President George W. Bush be opened for review so the American people can be satisfied that Republicans aren’t hiding the ball. And then — this is big — Kavanaugh himself should insist his nomination be delayed until after the special counsel’s report is issued or recuse himself from matters pertaining to Trump arising out of the investigation. Trump can withdraw the nomination but Kavanaugh will have sent a powerful signal that he is his own man and that he will not allow the Supreme Court’s legitimacy to be questioned.
Understand that there is no risk to Kavanaugh in taking such action. Even if Trump were to be forced out of office, a President Pence could renominate him, and the same unified GOP front plus a few red-state Democrats would ensure his confirmation. Frankly, if he acts in such a manner as to demonstrate his exemplary character, many Democrats would vote to confirm.
Kavanaugh has the chance to return Supreme Court confirmations to the pre-tribalistic-food-fight era. He can remind Republicans beyond the immediate court fight that they need to be defenders of the Constitution. And most important, he can signal to Trump that he cannot pick his own judge in whatever legal fights ensue.
When no Republican is living up to his or her oath, Kavanaugh could gain the country’s admiration and earn his place on the court.