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Does this belong in the Kavanaugh part?

Keep sight of these two facts and the stakes are very clear.

1. Much like the election the fix was in on this pick. During the Gorsuch nomination fight 15 months ago in April 2017, Trump and Anthony Kennedy were overheard discussing the next vacancy on the Court and Trump praised Kennedy’s son. Hey-you’d praise him too if he’d given you a total of $1 billion dollars in loans over the years from his powerful position at Deustch Bank.

So already by April, 2017 Kennedy and Trump were discussing Kennedy’s retirement, and corroborating on who to replace him with-as I noted in an earlier chapter. 

In itself this collaboration, this collusion between the executive and judicial branch is highly unusual and unethical.

So Trump and Kennedy were planning Kennedy’s replacement far in advance-Gorsuch hadn’t even been confirmed yet.

While the Federalist Society (in)famously gave Trump a list of nominees, Trump eventually chose Kennedy’s recommendation: his former law clerk, Brett Kavanaugh.

2. In a ‘total coincidence and surprise’ to Illegitimate ‘President Trump’ Kavanaugh has an extremely expansive view of Presidential power-he effectively believes the President-even a fake one like Trump-or is it especially a fake one like Trump?-is above the law.

Not only does he hate the law for the independent counsel and want it fully repealed as he joked about to his Federalist Society friends a couple of years ago-again this was in 2016  not some eccentric view he had in college-he thinks the President should be exempt from special counsels, and indeed, most investigations while President.

Meanwhile the conservative defense of Kavanaugh is-such that it is!-seems to be that he didn’t think a special counsel like Mueller’s was unconstitutional but that perhaps it should be. Further they argued that Kavanaugh was opposed to ‘legislating from the bench’ so you don’t have to worry about him ruling Mueller unconstitutional if/when-likely when-the Trump WH brings the case before the SJC. All Kavanaugh was saying per his defenders was that Congress should change the law and special counsels.

But based on what he said at the Federalist Society in 2016 this is no longer a sustainable position as Kavanaugh specifically said this is a law he will change-as opposed to Congress. Then there is the rather surreal opinion he ventured in 1999-that Nixon got a raw deal and that the tapes shouldn’t have been handed over as I noted in another previous chapter. 

If he thinks that Nixon got a raw deal then his view on independent counsels and special counsels has real consequence.

Of course, I was kidding above about the total coincidence and surprise thing-like Malcom Nance argues there are no coincidences or coincidences take a lot of planning. 

If you honestly believe that of all the nominees on the Federalist Society list, Trump just happened to choose the one guy who might really think the Mueller probe is unconstitutional and judging by what he said in 2016 might be willing to do something about it-not just hope Congress does-then I’ve got a Trump U diploma to sell you.

This is why, as I argued in the link above, while the conservatives have gotten these Supreme Court nominations down to a fine science-they may have miscalculated this time-or rather Trump called an audible in his hope that Kavanaugh will save him from Mueller and his pick totally violates the conservatives sensible rules around nominees. The whole key is to find nominees who don’t have too many  known controversial decisions or views. This is why John Roberts was a perfect pick for Chief Justice on the SJC-he had little paper trail.

FN: In retrospect we must admit they did not miscalculate-after all the GOP Senate has no shame. If I miscalculated anything in the hope that Kavanaugh would be an overreach it was the extent to which the Democrats would roll over on Kavanaugh without a fight. Find Salon piece about Schumer telling Dems to stand down-documented in book.

 

End of FN

You know controversial views like-the President is all powerful or that Nixon got a raw deal on the tapes.

One more observation on Kavanaugh’s extreme view of executive power: while he thinks that most investigations of a sitting President are wrong and should be unconstitutional this didn’t prevent him from reopening the investigation into Vince Foster’s death in 1994 or writing much of the Ken Starr report the GOP would use to vote to impeach Bill Clinton. 

So is his real view that President’s should be free from costly and time consuming investigations or just that Republican Presidents should?

Give Mitch McConnell credit-the man is utterly shameless. After what he did in 2016-refused to even hold a hearing for Merrick Garland he’s still capable of making the noises of indignation that the Democrats want to see Kavanaugh’s documents. 

But this Nixon got a raw deal thing is a game changer. 

“If Kavanaugh would’ve let Nixon off the hook, what is he willing to do for President Trump?” Senate Minority Leader Charles E. Schumer (D-N.Y.) asked Monday.

FN: But in a sense Schumer let Kavanaugh off the hook instructing Dem Senators to hold their fire.

Indeed.

“Democrats have also focused on Kavanaugh’s rulings in favor of broad presidential power and his criticism of the independent counsel law to suggest that he would protect Trump from special counsel Robert S. Mueller III’s probe. The judge has been outspoken in saying, for instance, that he would “put the final nail in” the now-defunct independent counsel law.”

“But it is unclear whether Kavanaugh’s dim view of the independent counsel law extends to separate special-counsel regulations governing Mueller’s investigation into Russian interference in the 2016 presidential election. Mueller’s legal battle with Trump’s lawyers over his request to interview the president could end up before the Supreme Court.”

UPDATE: Turns out Mueller punted making such a SJC confrontation unnecessary.

“But when you look at the totality of Kavanaugh’s opinions it’s not just opposition to the independent counsel but a general belief that investigations are a costly on a President’s time and resources. The view Nixon shouldn’t have had to hand over the tapes-and without the tapes he wouldn’t have had to resign-had nothing to do with the independent counsel law.”

“On the Nixon decision, Kavanaugh’s allies rallied to his defense. They pointed out that he had praised the unanimous ruling in the case — which forced Nixon to turn over the Watergate tapes and ultimately led to his resignation — in other venues, such as a law review article in 1998 and a speech in 2016.”

“Former independent counsel Kenneth Starr, for whom Kavanaugh worked during the 1990s probe into President Bill Clinton, and two other deputy counsels issued a statement Monday stressing that they discussed the Nixon case multiple times during their investigation and that Kavanaugh “viewed that decision as one of the most important decisions in Supreme Court history.”

“We repeatedly relied on Nixon in opposing efforts by the Clinton Administration to shield important evidence from disclosure,” said Starr and the deputies, Mark Tuohey and Bob Bittman. “Our clear recollection of Brett’s views on Nixon is that they are entirely consistent with those he expressed in articles published in 1998 (where he wrote that Nixon should be followed by the Supreme Court), in 2014 (where he identified Nixon as one of the ‘most significant cases in which the Judiciary stood up to the President’), and in 2016 (where he called Nixon one of the ‘greatest moments in American judicial history’).”

But let’s listen to how Philip Lacovara remembers it-Lacovara actually argued United States v. Nixon.

“Philip Lacovara, who had argued United States v. Nixon, said in the discussion that Nixon had taken the position that under the Constitution, no one in the executive or judicial branch could challenge his decision to prevent White House information from being released.”

“This question is actually very interesting,” Kavanaugh said, noting that Clinton White House lawyers involved in the roundtable discussion had not questioned whether the court’s ruling was correct.

It’s interesting if you don’t believe in separation of powers…

“But maybe Nixon was wrongly decided — heresy though it is to say so,” Kavanaugh said, according to a transcript of the discussion published in the January-February 1999 issue of the Washington Lawyer. “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently.”

In an interview Monday, Lacovara said Kavanaugh was not being provocative or playing devil’s advocate.

“The idea that Brett was expounding was this very philosophical approach” regarding whether a president must disclose information because a government subordinate seeks it in a federal criminal investigation, he said.

A very philosophical approach to his belief that the President is above the law-cannot be checked by the judicial branch and that it’s an outrage that a ‘subordinate executive official’ can put out a subpoena on him. Or it could be seen as a proper constitutional check on his power…

“Democratic senators said they would ask Kavanaugh to discuss the precedent in his confirmation hearing because he discussed it at the panel discussion.”

More generally they need to ask him his view of special counsels. As his words and writings open it up they should also push him on the Mueller probe-what are his thoughts on it? In light of his expressed views shouldn’t he recuse himself from any decision regarding the investigation?

In addition to his comments on the Nixon ruling, Democrats also say Kavanaugh’s past interviews, writings and judicial opinions reveal a philosophy greatly deferential to the chief executive — a view that Schumer has called “almost monarchical.”

“It is revelatory of his beliefs, and they fit a pattern that is deeply disturbing,” Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, said Monday

Again what a great coincidence for so-called ‘President Trump’ that he managed to select a nominee who’s philosophical approach is very similar to his own-almost monarchical.

Again though coincidences take a lot of planning.

UPDATE: Kavanaugh of course refused to commit to recusing just as AG Barr refused to recuse on overseeing the larger Mueller probe. It seems that both are in Trump’s mold-blatant GOP partisans in very powerful roles that in principle require a lot of independence.

The refusal of Kavanaugh and Barr to recuse is in itself precedent setting where high ranking members in the justice system refuse to recuse despite as blatant a conflict of interest as the day is long. We’re supposed to accept that once Barr and Kavanaugh took their new positions they magically shed themselves of their previously strongly held opinions.

In retrospect nominating Kavanaugh wasn’t overreach-it’s the Trumpian moment where Trump and his GOP co-conspirators practice a new chutzpah. Trump’s criticism of ‘political correctness’ amounted to the idea that the GOP should no longer pretend not to be the racist, sexist. corrupt economic royalists we always knew they were anyway.

This new Trumpian chutzpah explains why some Red states like Georgia have moved beyond de facto overturning to blatantly overturning Roe v. Wade.

Will such blatant defiance of federal law work? It’s certainly logical for them to try and they  have  sympathetic SJC beyond their wildest dreams.

 

 

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