Opinion | What will matter most at the Kavanaugh hearing?

Sen. Christopher A. Coons (D-Del.) released a letter sent to Judge Brett M. Kavanaugh in advance of the latter’s confirmation hearing set to begin next week. It read in part:

It is imperative that you, as a nominee for the Supreme Court, accept mainstream constitutional interpretations that cabin executive power and support presidential accountability. No one, including the President, is above the law. I am very concerned that your record suggests you may not hold that belief. For example, you have strongly criticized Morrison v. Olson, a seminal 1988 decision establishing the principle that Congress can prevent an independent counsel from being fired by the President without cause. Despite the Supreme Court’s 7-1 decision that it was fully within Congress’s power to pass such legislation, you have publicly stated on numerous occasions that you disagree with the majority’s decision and would overrule it. . . .
I am similarly concerned by your critical comments about another landmark Supreme Court decision, United States v. Nixon, which also upholds the foundational principle that the President is not above the law. As you know, a unanimous Supreme Court ruled that the President had to comply with a grand jury subpoena. You have suggested that this case was wrongly decided. The American people have a right to know whether you believe that Nixon should remain the law of the land and whether you believe that a President must comply with a subpoena to produce evidence for a criminal investigation or trial.

Meanwhile, Common Cause released its own letter urging the Senate not confirm Kavanaugh. The nonprofit objected to the lack of a complete record due to Republicans’ refusal to provide all of his documents from his time working in the White House. The meat of its complaint was this, however:

The Supreme Court could well end up deciding a variety of issues related to presidential power involving ongoing DOJ matters, including the Special Counsel’s investigation, that go to the heart of the electoral process. A cloud hangs over the very constitutional officer who is vested with the power to choose a person for a lifetime appointment to the highest court in our judicial system and who may later sit in judgment of them.

The letter goes on to argue that a “cloud” hangs over the president, the very person empowered to select a justice with a lifetime term. Should Kavanaugh then participate in decisions involving the Justice Department probe, the Supreme Court’s independence would be “compromised.” Common Cause asserts, “The public may view any resulting decisions from the Court as tainted by conflict-of-interest.”

Common Cause, Coons and others have gotten to the nub of the problem. The problem is not so much Kavanaugh but the man who nominated him. It’s Trump whose legitimacy is in question; it’s Trump whose insistence on defying the rule of law and obstructing the investigation that may prompt a constitutional crisis.

The issue of presidential legitimacy — did he break the law to win the presidency — will be resolved only once the special counsel’s report is available. Any decision on Kavanaugh’s confirmation should wait until then, but it surely will not. Republicans are too eager to rush through the process.

The second issue, Kavanaugh’s participation in Trump-related criminal and constitutional matters, has an easy resolution. And here — I’m talking to Sens. Bob Corker, Jeff Flake, Susan Collins, Lisa Murkowski and any others not driven exclusively by partisan advantage — should demand he recuse himself to secure their votes. That wouldn’t stop Kavanaugh from getting on the court, but it would alleviate one very central concern about the nomination. Kavanaugh should suggest it himself, but in any event, perhaps Common Cause and Democratic colleagues can discuss with those Republicans who are desirous of acting for a purpose larger than themselves. If Kavanaugh resists the entreaty to recuse himself, the Senate really does have reason to worry.