August 16, 2018

What We Don’t Know About Brett Kavanaugh

Senate Republicans are derelict in their constitutional duty

by Chris Thomas

Photo by Beatriz PĂ©rez Moya

In the history of the United States’ Supreme Court only one Justice has resigned under threat of impeachment (Abe Fortas in 1969 if you’re curious). Supreme Court appointments are for a lifetime; early retirements are rare and removal is extraordinary.

This is why the Constitution stipulates that appointment to the Court requires the consent of the Senate. It’s why the Senate’s cantankerous debates over the filibuster explicitly excluded Supreme Court confirmations all the way through 2013. It was only in 2017 that the Senate voted to forbid the filibuster in Supreme Court confirmation votes. Confirmation to the Supreme Court is serious business and, for a long time, if even the minority in the Senate had doubts or concerns, the Senate considered those worth considering before taking such a momentous step.

No longer, it seems.

Senate Republicans have refused to request reams of documents which relate to Kavanaugh’s service in the George W. Bush White House. These documents are important.

Kavanaugh’s service in the White House relates directly to his views on the powers, privileges, and immunities of the President. Does Kavanaugh believe the President can pardon himself? Does he believe the President can be served with a subpoena? Can he be charged with a crime?

If the Mueller investigation comes to head and the judicial system is forced to cast a deciding vote between Congress and the Executive, Kavanaugh’s opinions on these issues will be of the most profound Constitutional significance.

And the Republican Senate is decidedly, pointedly uninterested in learning about them. They’d much rather rush the confirmation through.

Who can blame them? The National Archives has already said that they can’t possibly have the records ready to deliver until October. That could push the confirmation back, perhaps until after the November elections. Should Democrats take the Senate — a long shot, but not impossible — Republicans would then be under enormous pressure to allow the new Senate to vote on the nomination.

But, then again, the Supreme Court is for life. Retirement is rare, resignation under threat of impeachment rarer, and actual removal from office unprecedented. The responsible thing, the ethical thing, the Constitutional thing for the Republicans to do would be to put Country before Party, request the documents, and let the process take all the time it needs.

Which is how we know the vote will be in September.

Tell Congress What You Think

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