Jurisprudence

The Kavanaugh Rule

The GOP has only one principle: Judges must be seated, quickly and permanently, but only by Republicans.

Supreme Court nominee Judge Brett Kavanaugh leaves a meeting with Senate Minority Leader Chuck Schumer on Tuesday in Washington.
Supreme Court nominee Judge Brett Kavanaugh leaves a meeting with Senate Minority Leader Chuck Schumer on Tuesday in Washington.
Zach Gibson/Getty Images

Donald Trump suffered the worst day of his presidency on Tuesday, as his former campaign manager Paul Manafort was found guilty on tax and bank fraud charges and his former personal lawyer and fixer Michael Cohen pleading guilty to tax fraud and campaign finance violations. Moreover, Cohen all but implicated Trump himself as an unindicted coconspirator in a scheme to violate federal campaign finance law to influence the presidential election.

In any normal political universe, the prospect of the president himself conspiring to break the law to win an election would be the beginning of the end—we’d be talking seriously about the prospect of impeachment. But the Trump administration clearly intends to brazen it out, as it has done after the fiasco in Helsinki, the meltdown at NATO, and every other political shocker that would be eclipsed by the one to follow. The plan appears to be to stay the course of irrationally blaming Robert Mueller, insisting that there is still no proof of collusion and tweeting daily doses of rank stupidity. Rudy Giuliani’s full, existential poetry slam madness adds to the general theme that all criminality is in the eye of the beholder. Democrats, meanwhile, have started to call for delaying Brett Kavanaugh’s confirmation hearings, pointing out that a president who has been credibly implicated in a criminal conspiracy shouldn’t be allowed to seat a Supreme Court justice. It certainly seems reasonable to argue that rushing to confirm Kavanaugh to a lifetime appointment is insane under the present circumstances. Trump’s hand-picked justice will almost certainly someday cast deciding votes about Trump, and to confirm him without access to the full range of his writings on executive power now borders on the incomprehensible.

But to make these arguments is to get the causation precisely wrong: Kavanaugh is being rushed through to confirmation, with writings vetted by a partisan Republican lawyer instead of the National Archives, precisely because having him seated before the Trump presidency collapses in upon itself is the priority. There is no point in reading the so-called McConnell rule back to Republicans—the maxim about how presidents in their final terms have no authority to seat justices and the people should decide. But there never was any McConnell rule. There was only an imperative that the court would be packed and that an Obama seat would be stolen.

Democrats hoping to embarrass GOP senators into standing down on Kavanaugh until the legitimacy of Trump’s presidency can be established miss the point. Kavanaugh and Neil Gorsuch, and the Kavanaughs and Gorsuches that follow them, are the sole basis for Republicans’ claims that the Trump presidency is legitimate. The reason Republicans like Susan Collins won’t break with Trump even over the stench of future criminal convictions—there is “no basis” for delaying Kavanaugh’s hearings, Collins said on Wednesday—is that Trump is the lever by which packing the courts can continue.

Don’t expect consistency here. In the broadest sense, consistency means that only Republican presidents get to fill court vacancies. The reason Obama was deemed an illegitimate president in his last year in office wasn’t because anything was wrong with his presidency. That was a wholly made-up argument to block his nominee. And the fact that Trump may not be a legitimate president—and certainly now acts under a palpable cloud of corruption—will not be the basis for stalling a Kavanaugh hearing. It is, instead, the very reason for fast-tracking the confirmation. Judges—all judges, any judges—must be seated, quickly and permanently, but only by Republicans. That is the only principle that matters. And in order to achieve that end, any bad acts by Donald Trump, up to and including alleged criminal conduct, will be minimized and swept aside.

Nor will this rationalization end when Kavanaugh is seated. There are still dozens of lower-court vacancies to fill, and Republicans won’t be satisfied with a mere majority at the Supreme Court. Not when Ruth Bader Ginsburg’s seat shimmers tantalizingly on the horizon and Stephen Breyer’s glimmers in the mist behind it. If Republicans in the Senate were willing to sacrifice whatever dignity they possessed to support Trump’s promise to pack the court, they aren’t going to shift course in the week before achieving the conservative majority they have fantasized about for decades. Trump could, one suspects, quite literally shoot a man on Fifth Avenue in the next two weeks and still preside over Kavanaugh’s successful confirmation. That is the whole point of Trump, and that is why the more tenuous the Trump presidency becomes, the more likely it is that Senate Republicans will support him.

Nothing has changed since November 2016. Back then, Trump was a grifter and a liar who would deliver on the courts. Today, he is a grifter and a liar now who will deliver on the courts. It’s just that today he needs to work faster because the walls are closing in. And why won’t Republicans cut Trump loose and let Mike Pence continue the work of court-packing? In part because they are terrified of losing Trump’s base. In part because the mayhem allows the relative normalcy of the court system appear alluring. And in part because nothing Trump does seems to cost them anything.
Yet.

What does that mean for Senate Democrats hoping to link Trump’s putative criminality to the Kavanaugh hearings? For one thing, that appealing to consistency or principle or history is a waste of time. It means that if ever there were an argument for Democratic unity on the Kavanaugh vote, this is it: No president suspected of criminal conduct should be allowed to seat a Supreme Court justice. This is no longer a vote on Kavanaugh’s merits.
It’s a message about the illegitimacy of the presidency. Kavanaugh himself is just elevator music now, as was Merrick Garland in 2016.

It also means Democrats should question Kavanaugh on his newly revealed writings about Bill Clinton, whose behavior he condemned as immoral and “revolting.” As he wrote in 1998, when he was working for independent counsel Kenneth Starr, “The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into shambles—callous and disgusting behavior that has somehow gotten lost in the shuffle.”

It’s fair game, then, to ask Kavanaugh about the immoral and criminal behavior of the president, as well as his lying and predation. Does he believe that Michael Cohen’s claims about Trump make the president a criminal? Is he as solicitous of Trump’s female victims as he was of Clinton’s? Let the president’s alleged criminal conspiracy to silence women be held up for debate.

This issue needs to be at the forefront of the 2018 election conversation for Democrats seeking to retake the House and Senate. The Supreme Court matters so much to Republicans that they are willing to forgive an alleged criminal conspirator to protect it. Shouldn’t Democrats at least care enough about the same court to go to the polls and vote?

For the Republican Party, Trump is now just a useful idiot who serves to pack the courts, and also to distract from his packing of the courts. Nothing the president says or does is likely to weaken Republican support for that project, and we thus wait for the Big One—the final failing or misstep that will send him packing—in vain. “But Kavanaugh” becomes the new “But Gorsuch.” And if that lesson was ever in doubt, it really shouldn’t be after Tuesday.