Mitch McConnell and Chuck Grassley (and even Susan Collins) have basically responded to this hackery with a polite versions of "pound sand," but this attempted obstructionism by all ten Senate Judiciary Committee Democrats should be mind-focusing and instructive nevertheless. Following Chuck Schumer's cynical lead, Democrats on the panel -- all drawn from their party's left flank -- are pouncing on the Manafort and Cohen news to invent a justification to stymie the confirmation of Brett Kavanaugh to the US Supreme Court, something many progressives vowed to do before Kavanaugh was even selected:
All 10 @JudiciaryDems: “Given the possibility of criminal wrongdoing by the President, doubts that Judge Kavanaugh believes a president can even be investigated, and the unprecedented lack of transparency regarding this nominee’s record, we should not move forward with hearings." pic.twitter.com/gCmbz661pV
— Vanita Gupta (@vanitaguptaCR) August 24, 2018
Let's address each argument, one at a time.
(1) The "possibility of criminal wrongdoing" by a sitting president does not revoke or suspend his or her constitutional powers. For instance, nobody would seriously argue that the Mueller investigation or accusations from the likes of Michael Cohen somehow prevent Trump ordering military action, in his capacity as Commander-in-Chief. Similarly, allegations and controversy do not strip the chief executive of his duty to name a candidate to fill a Supreme Court vacancy. There is a zero percent chance that Senate Democrats would allow a potential scandal to stop a Democratic president from fulfilling this constitutional role. Indeed, this isn't a hypothetical. Liberal law professor Jonathan Turley writes:
The constitutional implications are staggering if a president could be effectively blocked by the mere initiation of a criminal investigation on the state or federal levels...Nothing in the Constitution or history supports the claim that any “cloud of investigation” over a president is a barrier to the confirmation of a nominee. Indeed, not a single such objection was voiced when President Clinton appointed Stephen Breyer on April 6, 1994, to replace Associate Justice Harry Blackmun, three months after the appointment of the Whitewater independent counsel. During the summer Breyer was confirmed, Congress subpoenaed 29 Clinton administration officials in its own investigation, and the Clinton legal team ramped up for challenges.
Thomas Jippining of the Heritage Foundation fleshes this point out even further:
These investigations were live when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court on June 22, 1993, and when the Senate confirmed the nomination on August 3, 1993. No one said a word about pending investigations affecting the confirmation process...On May 17, 1994, Clinton nominated Judge Stephen Breyer to replace Justice Harry Blackmun on the Supreme Court. The Judiciary Committee held a hearing on July 12-14, and the full Senate voted 87-9 to approve the nomination on July 26. Again, no one suggested that the confirmation process should be changed in any way to accommodate this investigation. In other words, Clinton appointed not one, but two, Supreme Court Justices while he was under investigation. The second appointment came while he was actually “under subpoena.”
Judiciary Democrats don't have a leg to stand on here.
(2) Let's set aside leftists' debunked distortions of Judge Kavanaugh's record and writings on issues surrounding presidential investigations (read this, this, and this for examples of their desperation and dishonesty on this front). In their letter, Feinstein and friends cite "doubts that Judge Kavanaugh believes a president can even be investigated." Again, click the previous links to see how absurd this claim is. But beyond the substantive evidence, it's preposterous that "doubts" over a nominee's views on controversial topics would being held up as an excuse to prevent hearings, during which Senators would have an extended opportunity to...probe the nominee's views on controversial topics, under oath? The whole purpose of hearings is to address and explore such "doubts." Democrats should be eager to pepper Kavanaugh with questions about his views on these and other matters (such questions are entirely appropriate, by the way, and I suspect Kavanaugh will be prepared to address them in detail). That they're instead pointing to their doubts as a means to derail the hearings tells us everything we need to know.
(3) These Democrats are exploiting their unrealistic records requests, which have resulted in extraordinary document production, to complain of "unprecedented lack of transparency." Writing at National Review, Ed Whelan exposes Democrats' machinations, including this amusing piece of hypocrisy that gives away the game:
Senate Democrats are complaining that, pending the Bush team’s executive-privilege review and NARA’s own review, documents that have not yet been deemed to be publicly releasable are temporarily being provided to the Committee on a “committee confidential” basis. Hmmm, why would Senate Democrats complain that Committee members—including, of course, the Democrats on the Committee—are receiving documents more quickly than they otherwise would? The Democrats’ game of obstruction and delay is transparent. It is routine for privileged documents to be provided to the Committee only on a “committee confidential” basis. As this SCOTUSblog report on the Kagan nomination discusses (on page 2), “roughly two thousand documents” from the Clinton White House were deemed “committee confidential” and withheld from the public on that basis. Because of the vastly larger volume of Kavanaugh documents, the Bush team is expediting the provision of potentially privileged documents. That is nothing that Democrats can fairly complain about.
(4) More broadly speaking, the weak and specious objections advanced by these ten Democrats underscore the degree to which judicial confirmations would grind to a halt if the opposition party wins back the Senate in the midterm elections. Still irate over Republicans' application of their own hardball tactics (which was a long time coming), Democrats are signaling how they'll yet again escalate the confirmation wars just as soon as they have the opportunity -- and will push any rationalization to do so, no matter how unserious or unprincipled. Their feeble and likely quixotic attempts to blockade Kavanaugh may fail this time, but they serve as an important reminder of the stakes in November.
Parting Thought: I'll leave you with a reminder that Schumer also tried to use the Russia investigation as an excuse to stop Justice Gorsuch -- thus exposing supposed worries about document transparency and executive immunity views as window dressing.
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