More than abortion or gun control or health care, what is at stake in the confirmation hearings for Supreme Court nominee Brett M. Kavanaugh is the security of our constitutional system and the rule of law. We’ve not had such a Supreme Court battle in my lifetime because we have not had a president, even Richard Nixon, so dismissive of basic constitutional principles, coupled with a docile majority party in the Senate and a nominee who is another in the line of “sure thing” nominees who’ll support the views of the president nominating him or her (this goes for both sides). We have a president who may be allowed to pick a Supreme Court justice that will facilitate his evisceration of constitutional boundaries. That is why the Kavanaugh situation is unique and why we cannot treat it like just another court fight.
Kavanaugh made the problem much worse by his refusal to answer two critical questions — whether a president can self-pardon and whether a president must respond to a subpoena.
There was this exchange:
Sen. Dianne Feinstein: “So you can’t give me an answer on whether a president has to respond to a subpoena from a court of law?”
Kavanaugh: “My understanding is that you’re asking me to give my view on a potential hypothetical, and that is something that each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases.”
And then Sen. Patrick Leahy (D-Vt.) asked if a president could self-pardon. Again Kavanaugh demurred: “The question of self-pardons is something I’ve never analyzed. It is a question that I’ve not written about. It is a question therefore that is a hypothetical question that I can’t begin to answer, in this context as a sitting judge and as a nominee to the Supreme Court.” Why not? He’s not being asked about a specific case. He would not even say whether the president in effect could give a bribe — promising immunity if a witness wouldn’t testify against him.
It is mind-boggling, in one sense, that a federal judge doesn’t have a concrete answer as to whether the president can shred the Constitution in this way. “Can a president bribe someone?” is not a hard question. “Does our constitutional system permit the president to go on a crime spree and pardon himself?” shouldn’t be up for debate. And yet Kavanaugh ducks answering.
There are two possibilities here — he doesn’t want to answer and alienate one side or the other, or he really could facilitate a constitutional crisis. No senator, Democrat or Republican, should gamble that he really in his heart doesn’t believe these things are permissible. You can gamble with many things, but the future integrity of the Supreme Court should not be one of them.
Republicans and Democrats here need to consider the real possibility that Kavanaugh was picked precisely because he’d be the most likely judge to let President Trump get away with unconstitutional antics. If so, the problem is even worse: Trump is nominating the one otherwise plausible judge who might let him pardon himself, avoid a subpoena and bribe associates into maintaining their silence.
I am not saying this is the case. I am saying there is a not unsubstantial risk that this is going on. It is up to senators to make the case that they cannot confirm someone who leaves the door open to a constitutional fiasco. He can give more definitive answers. He can recuse himself. But confirming him as things currently stand would be constitutional malpractice.