The Washington Post has just published a memo written by Brett Kavanaugh back when the Supreme Court nominee was working as an attorney drafting the Starr Report. No doubt, it will further existing, idiotic complaints of hypocrisy.
Kavanaugh went after Democrats like President Bill Clinton, they will say, before later urging restraint for Republicans. He is, they argue with a straight face, a legal insurance policy for President Trump.
Sen. Cory Booker, D-N.J., has offered a nice encapsulation of this hysteria:
This will serve as proof positive that Kavanaugh has two different kinds of legal standards. One where he was aggressive with a president and wrote, like he did in the 1998 memo, that a special prosecutor should make Clinton’s “pattern of revolting behavior clear.” Another where he was deferential and argued, like he did in a 2009 Minnesota Law Review article, that subjecting a president to the normal obligations of citizenship was “a mistake.”
[More: Brett Kavanaugh proposed list of sexually explicit questions for Bill Clinton, memo shows]
But wait. These are not parallel tracks of jurisprudence. It is an evolved academic idea. If Kavanaugh is guilty of anything, it is changing his mind after considering new evidence and experiences. His work on the Starr investigation convinced him that such investigations are bad. And he put this idea to paper later, when Barack Obama was president.
It is true that Kavanaugh changed his thinking after working with Solicitor General Ken Starr and then later in the George W. Bush administration. It is not true, however, that Kavanaugh has changed his approach to the law. Throughout his legal career, Kavanaugh has adhered to a strict and stalwart originalism. Occasionally, as in this case, he has recommended that Congress should change a law. Never has he said that judges should act on their own to do so.
Kavanaugh said that the Supreme Court ruled correctly in Clinton v. Jones that the president is not immune from civil law litigation. He also said that the special prosecutor investigating Clinton acted correctly by following the law. The only thing anyone can take issue with the judge over is his 2009 suggestion that Congress should change that law:
A decade later, Congress still hasn’t taken his unsolicited advice. This means that Kavanaugh, originalist that he is, wouldn’t go easy on any president even if given the chance. He would, you know, follow the law. That means the memo won’t be an impediment to confirmation.
