The Rule of Law Is Now Debatable

With Donald Trump as president, unambiguous first principles have become “political controversies” that a Supreme Court nominee must avoid.

Sen. Kamala Harris questions Supreme Court nominee Judge Brett Kavanaugh on the third day of his Supreme Court confirmation hearing on Thursday.
Sen. Kamala Harris questions Supreme Court nominee Judge Brett Kavanaugh on the third day of his Supreme Court confirmation hearing on Thursday.
Photo edited by Slate. Photo by Drew Angerer/Getty Images.

During Thursday’s final round of questioning of Judge Brett Kavanaugh at his Supreme Court confirmation hearings, Democratic Sen. Kamala Harris asked the nominee what seemed like a simple question.

“Judge, you’ve spoken about the president’s unlimited prosecutorial discretion,” Harris noted. “Does that discretion allow him to target his political enemies for prosecution and spare his friends?”

Kavanaugh began droning on about how the limits of prosecutorial discretion require further study before Harris cut him off, repeating a version of the simple yes-no question. “Do you agree with the principle that a sitting president should not politicize the Justice Department?” she asked. Kavanaugh said he couldn’t answer. “That is asking me to weigh in on the political arena,” he offered.

And so, this week, the question of whether or not a president can use the Department of Justice to punish political enemies and offer his friends impunity to commit crimes became a debatable, two-sided political question. Kavanaugh’s refusal to comment on the question of whether the president can turn the DOJ into his own personal Stasi was part of a pattern of refusals to answer once-simple questions that are now, in Trump’s America, considered “political controversies.”

By saying nothing, Kavanaugh revealed the extent to which he will be Trump’s Supreme Court justice. He also showed that Trumpism has become the ethos of the Republican Party. As GOP senators, constitutional scholars, and even the American Bar Association argued during the hearings, Kavanaugh is considered to be a mainstream conservative judge. If a supposedly independent jurist like Kavanaugh sees Trump’s authoritarian decrees as debatable political points rather than clear constitutional violations, then there’s no mistaking that we’ve moved into a new era in American jurisprudence.

Harris’ question was just one of many questions that Kavanaugh felt unable to discuss. Here’s a list of instances in which the Supreme Court nominee refused to draw a line in the sand, or to get within three ZIP codes of the sand, or to express any opinion whatsoever about lines or sand:

• Democratic Sen. Dianne Feinstein asked Kavanaugh how he felt about Trump’s declaration that it was within his authority to order torture worse than waterboarding. “I’m not going to comment on—and don’t think I can, sitting here—on current events,” Kavanaugh responded.

• When Republican Sen. Lindsey Graham asked him about special counsel Robert Mueller’s investigative authority, Kavanaugh responded, “I don’t want to talk specifically about current events.”

• Democratic Sen. Sheldon Whitehouse asked Kavanaugh about his previous statements that President Bill Clinton’s attacks on Ken Starr’s Office of Independent Counsel constituted “a presidentially approved smear campaign,” “a disgraceful effort to undermine the rule of law,” and an effort to “disgrace [Starr and the independent counsel’s] office with a sustained propaganda campaign that would make Nixon blush.” Whitehouse wondered if Kavanaugh’s “views of presidential interference, or smearing of independent or special counsel, changed since you made those statements.” Kavanaugh’s response: “I think I’ve been clear, I don’t want to talk about current events.”

• During Wednesday’s opening round of questioning, Harris asked Kavanaugh about President Trump’s statements that there was “blame on both sides” after a protester was killed during a white supremacist rally in Charlottesville last year. “I’m not here to assess comments made in the political arena, because the risk is I’ll be drawn into the political arena,” Kavanaugh responded.

• Democratic Sen. Cory Booker asked Kavanaugh, “Do you still think character matters for the president of the United States?” Again, the nominee responded: “I need to stay so far away from political commentary. … Three ZIP codes.” When then asked if Kavanaugh would asked to be willing to repeat the statement he made about George W. Bush during his previous confirmation hearing and say he “respects” the president, Kavanaugh demurred.

• Democratic Sen. Richard Blumenthal asked Kavanaugh if it was right for Trump to attack Judge Gonzalo Curiel for his Mexican heritage. “Again, I’m not going to comment on current events,” Kavanaugh’s responded. Blumenthal noted that President Trump’s previous Supreme Court nominee, Neil Gorsuch, was willing to say that Trump’s attacks on the judiciary were “disheartening” and “demoralizing.” Asked if he agreed with Gorsuch’s comments, Kavanaugh refused to answer, saying he had to “stay well clear of political” controversies. (Perhaps Kavanaugh had read the Washington Post report indicating that Trump had discussed rescinding Gorsuch’s nomination after those comments because they weren’t “loyal” enough.)

• During that same sequence, Blumenthal also asked Kavanaugh if he agreed with President Trump’s personal attacks on Justice Ruth Bader Ginsburg. “Do you believe that Justice Ginsburg has ‘embarrassed us all?’ ” Blumenthal asked. “I’m not going to get within three ZIP codes of a political controversy,” Kavanaugh responded.

• In referencing Blumenthal’s testimony, Democratic Sen. Mazie Hirono got to a bigger-picture point. “Is disagreeing with the president a concern to you?” she asked. “We don’t comment on politics, we don’t comment on comments made by politicians. We stay out, way away from politics,” Kavanaugh responded.

Here, then, is a condensed list of what Kavanaugh considers to be political questions: whether it is possible to disagree with President Trump; whether Ruth Bader Ginsburg is an “incompetent judge” who has “embarrassed us all”; whether attacking a judge for his Mexican heritage is acceptable; whether the president’s character matters; whether anti-Nazi protesters share moral culpability with Nazis themselves; whether daily presidential attacks on a special counsel are acceptable; whether the president can order torture worse than waterboarding; and whether he can order the prosecution of his political enemies and command that prosecutions of his political allies be dropped.

That last point is not some absurd hypothetical. Trump has repeatedly requested that his Department of Justice go after his enemies and drop the “witch hunt” investigations centering on the president and his friends. This week, it emerged that one of Trump’s political targets, former Deputy FBI Director Andrew McCabe, is under a grand jury investigation. It is impossible to ignore the fact that the president has repeatedly called for that investigation. Trump this week also attacked his own attorney general, who he is expected to fire, saying that Sessions failed to protect two Republican congressmen from corruption charges. “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department,” the president wrote. “Two easy wins now in doubt because there is not enough time. Good job Jeff…… ”

On Tuesday, Republican Sen. Jeff Flake questioned Kavanaugh about whether this tweet was appropriate. “Should a president be able to use his authority to pressure executive or independent agencies to carrying out directives for purely political purposes?” Flake asked.

“I don’t think we want judges commenting on the latest political controversy,” Kavanaugh said.

The principle that the Department of Justice does not exist to imprison the president’s personal and political enemies should not be a “controversial” question that must be hashed out in the “political arena.” In the very recent past it would not have been described as such by any nominee, Republican or Democratic. But for Trump’s Supreme Court justices, the rule of law will be debatable.