Having utterly failed to mount a substantive case against Supreme Court nominee Brett Kavanaugh thus far, liberals are now attempting to exploit the Manafort and Cohen developments as a basis to delay or derail his confirmation process. It's a cynical exercise in non-sequitur partisanship, rooted in desperation. It should not be taken seriously. Here's Senate Minority Leader Chuck Schumer calling on Republicans to freeze the calendar on the "dangerous" Kavanaugh, in light of convictions and guilty pleas that might -- maybe -- affect President Trump at some point down the line. Ridiculous:
Judge Kavanaugh’s refusal to say a POTUS must comply w a duly issued subpoena & Mr Cohen’s implication of POTUS in a federal crime make the danger of Kavanaugh's nomination to the SCOTUS abundantly clear.
— Chuck Schumer (@SenSchumer) August 22, 2018
It's a game changer & Chairman Grassley should delay confirmation hearings
It's not a "game changer" on any level for the nominee, whose qualifications and integrity are precisely the same today as they were on Tuesday morning. President Trump very much remains the duly and legitimately elected President of the United States, and the constitution explicitly empowers him to fill the Supreme Court vacancy that arose earlier this summer. Those are the relevant facts, and zero of them have been altered by this week's events. Furthermore, Democrats have been raising the issue of potential Trump legal jeopardy ever since Kavanaugh was nominated, often grossly distorting Kavanaugh's mainstream writings and views on related matters. This New York Times story lays out a case that even if thorny questions regarding presidential obligations in legal proceedings were to come before the Court, the likelihood that Justice Kavanaugh would furnish a decisive vote is quite slim. And contra Schumer, we do have a sense of Kavanaugh's attitude about whether a sitting president must comply with a subpoena:
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Supreme Court Justice nominee Brett Kavanaugh, while working on the independent counsel investigation into President Bill Clinton in 1995, argued that a sitting president would likely have to testify before a grand jury if subpoenaed. Kavanaugh, who worked for independent counsel Ken Starr at the time, asked in a memo whether "there could be some kind of argument based on the 'dignity of the Presidency' and/or separation of powers" protecting the disclosure of then-President Clinton and first lady Hillary Clinton's testimonies under grand jury secrecy rules. Kavanaugh calls that argument "weak" in the memo to Starr and other members of the independent counsel team on January 25, 1995. "This argument seems weak, however, given the deeply rooted history and tradition of this country's jurisprudence that the President is not above the law," he said, later asking, "Why should the President be different than anyone else for purposes of responding to a grand jury subpoena ad testificandum?" Kavanaugh, currently a federal appeals judge, also contends in the memo that "once in the grand jury room, the President might claim executive privilege if asked about certain communications, but that seems a different issue altogether."
Trying to build a sense of momentum behind Schumer's silly Hail Mary, a Democratic Senator (who has already ruled out supporting any Trump SCOTUS nominee) publicly announced that she was canceling her scheduled meeting with Kavanaugh. Any chance Republicans would bite on this nonsense? Doesn't look like it:
Grassley spox say the Kavanaugh hearings WILL start ON TIME https://t.co/BFIbrimG87
— Steven Dennis (@StevenTDennis) August 22, 2018
GOP SC Sen Graham: I strongly oppose any postponement of the Supreme Court confirmation hearings for Judge Kavanaugh...Senator Schumer may believe that the Michael Cohen and Paul Manafort cases invalidate the election – I do not.
— Chad Pergram (@ChadPergram) August 22, 2018
If the Senate Judiciary Committee Chairman is correctly refusing to indulge these tactics, backed up by other influential Senators -- including the most moderate member of the GOP caucus (who came away from her meeting sounding reassured on Roe v Wade, for what it's worth) -- Schumer's "game changer!" stunt looks like another whiff by the Democrats. There's also been a pernicious campaign among elements of the Left to preemptively begin assailing the legitimacy of the Court itself. Angered that President Trump will likely install at least two justices, some leftists are venting their impotent (thanks, Harry Reid) frustration by intentionally undermining public faith in a major American institution -- which is exactly what they often savage Trump for doing:
Yes. Kavanaugh may yet be confirmed, but this will make the SC fundamentally illegitimate. https://t.co/gLLad36KrD
— Paul Krugman (@paulkrugman) August 21, 2018
This is such a sham. This nomination process is illegitimate and so will be any Supreme Court with Brett Kavanaugh on it.https://t.co/o4yGsKgv0Z
— Brian Fallon (@brianefallon) August 10, 2018
This is dangerous rhetoric that should be harshly condemned and combatted by anyone who cares about the rule of law and our constitutional order. Not a single thing that has occurred this week, or is related to a dispute over the proper extent of document production, affects the president's legal duty to nominate a candidate to fill an open Supreme Court seat. Nothing. Using these excuses to undercut the legitimacy of the Court itself is nothing less than an unseemly and damaging temper tantrum in advance of an anticipated political loss. Reading Paul Krugman's characteristically reactionary hot take, I became curious about how many Supreme Court justices Richard Nixon selected. The answer is four. The Nixon presidency was famously marred by corruption and scandal, nearly all of which came to light after his quartet of justices were confirmed and actively serving.
But two of the nominees were approved by the Senate after Nixon's cronies started breaking laws on his behalf, based on the publicly-known timeline. And three of those four justices went on to join the Court's controversial Roe opinion, conjuring the constitutional "right" to abortion now viewed as sacrosanct by many on the Left. Does Kurgman believe Roe to be legally legitimate, despite the fact that Nixon-picked justices were essential to the formation of that majority? Fruit of the poisonous tree, etc. Krugman defenders might argue that Nixon was not implicated in his crimes at the time of those nominations, but in retrospect, we know for a fact that he was criminally corrupt. By contrast, President Trump is merely alleged to have violated campaign finance laws at this point. Come to think of it, Bill Clinton tapped more than a dozen circuit court nominees after he was actually impeached over crimes for which he was ultimately disbarred (and to which he eventually confessed). Should any or all of their subsequent rulings also be considered "illegitimate"?
The obvious truth is that allegations against a sitting president are insufficient grounds to suspend his or her constitutional prerogatives. Krugman surely knows this, and being a prodigious hack, he'd almost certainly argue in the opposite direction if a liberal nomination were at stake, under the exact same circumstances. Senate Democrats are welcome (I'd even say encouraged) to question Kavanaugh under oath about his philosophy on presidential immunity. But the relevant issue on the table is not whether President Trump may one day be forced out of office due to misconduct, which remains a total hypothetical. It is whether the man he has chosen -- under the constitutional authority afforded to the office he legitimately occupies -- to replace Justice Anthony Kennedy on the United States Supreme Court is fit to serve. And there is simply no serious debate about the fitness or preparedness of Brett Kavanaugh. That's why Democrats and their allies are reduced to these games and machinations. It's not working.
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