Brett Kavanaugh Was a Mistake

Donald Trump picked the judge who’s most inclined to say the president can’t be indicted. Pro tip: That makes him look guilty.

President Donald Trump introduces Judge Brett M. Kavanaugh.
President Donald Trump introduces Judge Brett M. Kavanaugh as his nominee to the Supreme Court during an event in the East Room of the White House on Monday in Washington. Mark Wilson/Getty Images

To be perfectly clear on the obvious point: Brett Kavanaugh is a lovely man and presumably a good father with a lovely family. As was Neil Gorsuch before him. As was Merrick Garland who was grievously insulted by Senate Republicans and conservative legal lobbyists for nearly a year. It wasn’t personal then, and it’s not personal now when I say that Donald Trump made a mistake in picking Kavanaugh as his second nominee to the Supreme Court.

Over what I believe to be a surprisingly authentic warning from Mitch McConnell not to select Kavanaugh or Amy Coney Barrett to fill the seat left by Anthony Kennedy, the president chose the guy who had the most to say about imperial presidents. This is not a surprise. Beyond the fact that Kennedy doubtless approved of Trump’s selection—Kavanaugh, like Gorsuch, clerked for Kennedy—the single greatest selling point for Kavanaugh had to have been the much-reported line from his 2009 Minnesota Law Review article, in which he wrote, “Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.” A President Trump seeking justification to immunize himself from prosecution needed to look no farther than Kavanaugh’s caution in that same article that the indictment and trial of a president “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”


But the problem for Trump is that Kavanaugh has been extraordinarily transparent—perhaps too transparent—about his affinity for broad constructions of executive power. Nevertheless, the president—whose administration is currently the subject of a wide-ranging criminal investigation—somehow chose the judge who’s most likely to endorse the Trumpian view that this is all a massive witch hunt, this despite the gamble that Kavanaugh’s selection makes him look guilty. Pro tip: It makes him look guilty.

To be sure, as Jed Shugerman notes, Kavanaugh’s law-review article doesn’t promise presidential immunity so much as suggest that Congress can and should confer such immunity. Nevertheless, Kavanaugh’s lengthy and complicated record with respect to presidential investigations (ranging from his work on Vince Foster’s suicide to his zealous pursuit of Bill Clinton in the Whitewater probe) will require the review of a massive trove of documents from his time at the White House and working for Ken Starr, an endeavor that will consume huge amounts of time. And Kavanaugh’s record will include emails on so many questions connected to the Mueller probe—including issues that Trump himself has raised such as the nature of presidential obstruction and presidential immunity—that a deep dive into that record will ensure (as if it needed ensuring) that the Mueller probe stays in the headlines in the runup to the midterm elections.

In short, this means that Trump didn’t just give Senate Democrats the talking point that Kavanaugh is an all-but-certain vote to erode or end Roe v. Wade. That statement, while true, could’ve been made about any of the judges on the president’s short list. In selecting Kavanaugh, Trump has given Democrats an additional talking point: The president picked a guy he hopes will hand him a get-out-of-jail-free card.

A pair of Democratic senators have already jumped on this bandwagon, with Jeff Merkley tweeting that the pick indicates Trump “is terrified of Robert Mueller” and Cory Booker stating that he “literally selected the one person who has a pretty good written record of saying, ‘Hey, if you’re a president under investigation, I don’t think you should be allowed to be under criminal investigation.’ ”

Whether this is true or not, or even supported in Kavanaugh’s extensive record, the fact is that Senate Democrats will be able to spend the summer arguing precisely what the president doesn’t want them to argue: that the Mueller probe is ongoing, that close Trump confederates have been indicted and other indictments are coming, that many of the legal questions surrounding the Mueller investigation may end up before the Supreme Court, and that the president may have hand-picked a judge solely for the possibility that he may vote to exonerate him.

While we don’t yet have a full picture of the scope of Kavanaugh’s record about the boundaries of an imperial presidency, we do know that, as Garrett Epps put it Monday night, “Not since Warren Harding in 1921 nominated former President William Howard Taft to be chief justice has the country been presented with a high court nominee so completely shaped by the needs and mores of the executive branch as Brett Kavanaugh.”

More specifically, we know that when the U.S. Court of Appeals for the District of Columbia Circuit upheld the constitutionality of the Affordable Care Act in 2011, Kavanaugh wrote in dissent that if a president takes issue with an existing law, he can simply declare it unconstitutional and refuse to enforce it. “Under the Constitution,” he wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

We also know that Kavanaugh is a staunch proponent of dismantling the administrative state, having issued multiple rulings against the EPA and a famous dissent claiming that the Consumer Financial Protection Bureau is unconstitutional. He has pushed for an extremely broad view of executive power in the name of national security. He has signaled an intent to do away with what is known as Chevron deference wherein judges defer less to federal agencies’ interpretations of their own rules.

In short, to the extent that the president looks like he went on a shopping spree for the justice who’s inclined to put his legal imprimatur on the proposition that Trump gets what Trump wants, he seems to have found what he needed. And I, for one, am exceedingly glad that we have a 12-year judicial record, in addition to years of government service, to probe for clues on whether Kavanaugh will be an independent vote or not. This is a vastly better outcome than getting someone who’s written a pile of law-review articles and has no meaningful judicial record.

Nevertheless, if Trump wanted to keep the Mueller “witch hunt” off the front pages, he may have seriously miscalculated in choosing the Supreme Court nominee who could push the glassy-eyed public into refocusing on Trump’s personal corruption, pointless cruelty, and attacks on judicial independence. Maybe that’s a winning issue for this president. I don’t think so.

Trump would have done better choosing a religious conservative and turning the midterms into a fight over the religious freedoms of Christian dissenters. The midterms, effective this week, will instead be about whether Trump’s proposed new justice thinks the president can pardon himself. As Republican get-out-the-vote messages go, it’s not a strong one.