Judge Brett Kavanaugh stood before a prime-time audience Monday night with his smiling family beside him, an already prestigious legal record behind him, and prepared remarks about the importance of the rule of law in hand. Somehow, the Left saw an undercover partisan plant.
A chorus of liberal pundits and Democratic politicians now argue that the Supreme Court nominee is part of a conspiracy to establish an imperial presidency. As evidence, they point to Kavanaugh’s warning that a president should not be subject to criminal prosecution in office.
Sen. Cory Booker, D-N.J., summarized the hysteria on MSNBC:
Except no, nothing of the sort is assured. While there are certainly plenty of unanswered legal questions, Kavanaugh hasn’t come down one way or the other on how the Supreme Court must rule on the issue of presidents being subject to prosecution. The judge has only said what he thinks Congress ought to do.
Kavanaugh made this distinction clear in a much maligned 2009 article written for the Minnesota Law Review. Before joining the D.C. Circuit Court, he played a lead role in the Kenneth Starr investigation that lead to President Clinton’s impeachment. Then Kavanaugh worked as counsel to President Bush. Those experiences shaped his personal opinion that “we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions.”
Trump SCOTUS team has looked at Kavanaugh’s past comments on indicting a sitting president, we’ve confirmed. In 2009, Kavanaugh wrote: “The indictment and trial of a sitting President, moreover, would cripple the federal government…” https://t.co/rDHJs5RiUY
— Jim Acosta (@Acosta) July 9, 2018
The pressures of the presidency are so constant and so crushing, Kavanaugh argued even after helping investigate Clinton, that holding the executive to all of the other normal obligations of citizenship would be “a mistake.” An indictment or trial of a sitting president, he wrote, would “cripple the federal government.”
Clinton shouldn’t have been forced to deal with the sexual harassment case brought by Paula Jones. Instead Kavanaugh said, “the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden.”
What is so important and what is conveniently glossed over by critics is the fact that Kavanaugh didn’t believe the Supreme Court or the special prosecutor did anything wrong. They just followed a law which, he believed, “as it existed was itself the problem.” And no, Kavanaugh doesn’t think judges should just strike down laws they don’t like. Kavanaugh thinks Congress should change them:
Those remarks were made almost a decade ago. Since then, Congress has not revisited the issue, meaning that if a similar case came before the Supreme Court, Kavanaugh would likely rule according to the same law.
And here is where the conspiracy theories fall apart. Read any of the more than 300 cases that Kavanaugh has decided, and the judge consistently strives to interpret the law as it is written, not as he would like it to be. Precedent and the Constitution supersede his personal policy preferences and that should bring a mix of comfort and regret to the likes of Sen. Booker.
If Democrats were uneasy about how a conservative Supreme Court might rule concerning presidential indictments and investigations, they should have changed the law. The legislature should have, you know, legislated. At least they know Kavanaugh won’t try to rewrite the law from the bench.
