The High Crimes Justice

If Brett Kavanaugh is elevated now, it will leave an indelible stain on the Supreme Court.

President Donald Trump introduces U.S. Circuit Judge Brett M. Kavanaugh as his nominee to the United States Supreme Court during an event on July 9 in Washington.
President Donald Trump introduces U.S. Circuit Judge Brett M. Kavanaugh as his nominee to the United States Supreme Court during an event on July 9 in Washington. Mark Wilson/Getty Images

Michael Cohen’s guilty pleas on Tuesday not only directly implicate President Donald Trump in campaign finance felonies. They also implicate the Supreme Court and Judge Brett Kavanaugh’s nomination.

No president in American history who faced direct, concrete evidence of high crimes has ever appointed a Supreme Court justice. The Senate should not endanger the Supreme Court’s legitimacy by allowing Trump to appoint a justice under an undeniable cloud of impeachment, removal, and potential prosecution. On Wednesday, it became clear that Senate Democrats were at least beginning to understand the stakes here. Senate Minority Leader Chuck Schumer again asked Judiciary Committee Chairman Chuck Grassley to delay Supreme Court confirmation hearings on Kavanaugh. At least one Democratic senator cancelled a scheduled meeting with Kavanaugh and others said they would not meet with him. Senate Republicans like Susan Collins and Lisa Murkowski have it in their power to delay the nomination process for the sake of court and the rule of law.

First, let’s note that Trump had been under this cloud for a while. There is ample evidence he obstructed justice in many ways, even if obstruction is a crime that requires proof of mens rea, or intent. There is circumstantial evidence he knew of the Trump Tower meeting on June 7, 2016, which would seem sufficient for a charge of conspiracy against the United States. Even prior to Tuesday, there was the reported evidence of campaign finance felonies involving his former personal attorney. But Cohen’s guilty pleas and statements in court turn a new corner legally.

These felonies raise increasingly overwhelming questions about the legitimacy of Trump’s election. Now that the evidence is so inescapable, they raise inevitable questions about the legitimacy of his judicial appointments going forward.

Let’s review the history of presidents facing concrete evidence of high crimes. Andrew Johnson did not commit felonies, but his high political crimes or misdemeanors were violating statutes and defying Congress in trying to undermine Reconstruction. He was impeached and narrowly avoided removal. After pro-slavery Justice John Catron died during Johnson’s presidency, Congress abolished his Supreme Court seat in 1866 rather than allow him to appoint a new justice.

During Richard Nixon’s second term and Bill Clinton’s second term, there was direct evidence of high crimes and misdemeanors. The Supreme Court had been involved in these cases (U.S.
v. Nixon
and Clinton v. Jones) and faced further potential involvement, and no justices retired.
Thus, neither president nominated a justice while under a cloud of impeachment.

What about other scandals, such as Reagan’s Iran-Contra, or Clinton’s Whitewater allegations investigated during his first term, or Credit Mobilier under Ulysses S. Grant, or Teapot Dome under Warren G. Harding? All were serious scandals, but none produced direct and concrete evidence of the president’s criminal conduct, nor a clear “high crime or misdemeanor.” None raised a plausible specter of presidential removal.

Supreme Court justices in the past have exercise wise judgment about the timing of their retirements to avoid illegitimacy crises. At an election night party in 2000, when it looked like Al Gore would win, Justice Sandra Day O’Connor reportedly exclaimed, “This is terrible.” As Newsweek reported, her husband explained to partygoers that she “was upset because they wanted to retire to Arizona, and a Gore win meant they’d have to wait another four years.” But O’Connor didn’t retire until Bush’s second term. After she cast the deciding vote in Bush v. Gore, her retirement after the 2000 election would have undermined the legitimacy of the court. O’Connor likely understood this. She chose not to retire until after a new presidential election in 2004. For whatever reason, Justice Anthony Kennedy chose a different path this past summer, and it at least raises valid questions about his own legacy. The Senate, though, shouldn’t overlook this legitimacy crisis either.

Kavanaugh’s views on overturning Roe v. Wade and on creating unprecedented new presidential powers already raised valid questions for confirmation under any circumstances. Trump’s criminal liability exacerbate these problems to a breaking point. Meanwhile, Senate Majority Leader Mitch McConnell is rushing the Kavanaugh confirmation—without acquiring full access to Kavanaugh’s records—precisely because of Trump’s legal and political problems. Anyone who supports a Trump nomination to the Supreme Court after Tuesday needs to grapple with the following: Other shoes will drop about Trump’s criminal conspiracy, the confirmation vote will coincide with another Paul Manafort trial and perhaps a Cohen deal, and eventually more damaging documents about Kavanaugh, may come out after the vote. How will this confirmation—essentially a form of court-packing—look in a year? How could Republicans have any coherent argument against the Democrats responding in kind should they retake the White House and the Senate after the 2020 election?

There will be a legitimacy crisis if the Senate appoints a Trump nominee to the court in 2018. But there is no crisis if the court has eight justices for months, or even years. When Congress created the Supreme Court in 1789, they created six seats, and it remained at six for 18 years. The Supreme Court has had an even number of seats many times throughout its history—and it is often not a bug, but a feature—a feature of consensus to build a majority, rather than an even split.

Trump’s judicial appointments already have a taint of illegitimacy. Justice Neil Gorsuch has multiple clouds over his appointment, including not only Trump’s criminal liability but also the unprecedented stonewalling of Obama appointee Judge Merrick Garland that led to Gorsuch’s elevation by a narrow Senate majority. But now, in the wake of Tuesday’s news, if the Senate confirms a second Trump nominee to the Supreme Court, it will be fundamentally and inexorably undermining the court’s legitimacy. Again, one might as well call it a brave new kind of court-packing. No matter how such a move is described, it would be yet another unprecedented violation of norms and a threat to the rule of law in America.

If Republicans want a legitimate Kavanaugh nomination, they can wait for the investigation to be complete. Perhaps a new president could make this appointment, and give the Senate a chance to review the full record then. But if the Republican Senate violates another previously standard Supreme Court confirmation practice, it will be utterly predictable that the pendulum will swing the other way when they are out of power. When it comes to the Supreme Court right now, eight is enough.