Kavanaugh’s two critical tripwires

Published September 5 2018
Updated September 6 2018

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.

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.

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 Donald 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.

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