In all of U.S. history, only 37 Supreme Court nominees have fallen short of confirmation. Eleven were rejected by Senate vote. The remainder withdrew or had their nominations lapse at the end of a congressional session. That makes for a strong historical bias in favor of a president’s nominees.
No matter which party holds the presidency or the Senate majority, there has been a recognition that justices become part of the chief executive’s legacy and are likely to reflect the values of that president.
And, yet, the advice and consent role of the Senate was not intended as a mere rubber stamp. Unfortunately, in the vetting of Judge Brett Kavanaugh, Republicans chose to ramrod through a nomination that should have, by any measure, received far closer scrutiny than it has.
Their refusal to release more than 100,000 documents that include Kavanaugh’s time as a high-level political operative in the George W. Bush White House and as investigator for special counsel Kenneth Starr in his pursuit of President Bill Clinton, is a shameful and deliberate abrogation to fulfill their check-and-balance responsibility, particularly as regards a lifetime appointment.
As it stands, there remain too many troublesome aspects of Kava-naugh’s background, too much evasion of questions that deserved deeper answers, for the Star Tribune Editorial Board to support his confirmation.
That is a departure for this board, which earlier supported the nomination of conservative Judge Neil Gorsuch to the high court. Our opinion on Kavanaugh is not based on his positions on issues such as abortion rights, gun rights and voting rights. A Republican president would be expected to nominate someone aligned with his values, and, for the most part, Kavanaugh is fairly typical of judges who could pass muster with the Federalist Society, to whom President Donald Trump delegated the initial cull.
But there is something different about this nominee. Alone among the more than two dozen names Trump considered, Kavanaugh has endorsed a singularly expansive view of executive power, even stating in a paper and speech that the president should be immune from criminal investigation or prosecutorial questions while in office.
Given the ongoing investigation by special counsel Robert Mueller, Kavanaugh had a responsibility to fully air his thinking. Instead, he evaded, suggesting during hearings that his 2009 Minnesota Law Review article was simply a call for Congress to pass a law shielding presidents from legal inquiries.
That paper, however, also contains this telling footnote in which Kavanaugh himself raised the issue of constitutionality: “Even in the absence of congressionally conferred immunity,” he wrote, “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” (“Separation of Powers During the Forty-Fourth presidency and Beyond,” pg. 8, footnote 31.)
Sen. Amy Klobuchar, D-Minn., a member of the Judiciary Committee and a former prosecutor, told an editorial writer that Kavanaugh’s notion of presidential power and immunity “are not a commonly held view at all” and even include support for the ability of a president to remove a special counsel. Klobuchar noted that Trump’s list had included “plenty of people with good credentials, but the White House picked the one with the most expansive view of presidential power.”
Kavanaugh’s evasiveness may have been rooted in the knowledge that his confirmation required but 51 votes in a body where Republicans hold … 51 seats. Earlier rules that required 60 votes to stop a filibuster might have prompted a much different strategy, perhaps motivating Kavanaugh to be more forthcoming in his answers.
Republicans might have thought twice about withholding most of the relevant documents from Kavanaugh’s time in the White House and as an investigator for Starr. Trump might have needed to select a nominee with a modicum of bipartisan appeal. Instead, the Republican Senate jettisoned the last vestiges of the filibuster rule in 2017 to confirm Gorsuch. Even so, Gorsuch managed to avoid a strictly party-line vote, gaining several Democratic votes.
The committee vote on Kavanaugh has been delayed until Thursday. Republicans may yet manage to muscle through his confirmation, cementing a conservative majority on the court. The more responsible course would be to reject this flawed nominee and allow the president to make another selection, with a promise to work toward the strong bipartisan support that until recently was a regular feature of Supreme Court nominations.