Brett Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia, is said to be one of the five or so jurists on the short-list for nomination to the Supreme Court. The Washington Post is concerned that Kavanaugh would try to shield President Trump from the Russia investigation and its various non-Russia related offshoots. That concern gives rise to this piece by Michael Kranish and Ann Marimow called “Top Supreme Court prospect has argued presidents should not be distracted by investigations and lawsuits.”
The basis for the Post’s attack on Judge Kavanaugh is a 2009 law review he wrote about criminal investigations of, and lawsuits against, presidents. Kavanaugh would be entitled to find irony in this attack.
He had been a member of Ken Starr’s team in its investigations of President Clinton. Yet, Kavanaugh’s 2009 law review article was sympathetic to Clinton.
The judge argued that, given the burden investigations like Starr’s place on a president, the nation’s chief executive should be exempt from “time consuming and distracting” lawsuits and investigations that “ill serve the public interest, especially in times of financial or national security crisis.” And he specifically acknowledged that the public interest was not well served by Clinton having to respond to Paula Jones’ lawsuit while still in office.
Naturally, Kavanaugh didn’t say the Starr investigation was improper. Rather, he contended that the statute Starr operated under was “badly flawed.”
It’s unlikely that anything in Kavanaugh’s article bothered Democrats at the time of publication or for a goodly period thereafter. His piece was, as I said, sympathetic to Clinton. Moreover, Barack Obama was in the White House, the potential beneficiary of any relief for the president from investigations, lawsuits, etc.
But in 2018, the left is obsessed with investigating, suing, and eventually impeaching the current Republican president. Thus, Stephen Vladek, a law professor quoted by the Post, is obviously correct in saying that the views Kavanaugh expressed in the 2008 law review article “will be a very central topic of questions from members of the Senate” if Trump nominates him. In fact, these views will make the heads of some Democratic Senators explode.
Here’s another irony, though: Kavanaugh is not among the most conservative nominees under consideration by President Trump.
Before Chief Justice Roberts declared the Obamacare penalty a “tax,” Kavanaugh had described it as such in a case challenging the individual mandate. The Obama administration cited Kavanaugh for this proposition and the notion carried the day before the Supreme Court.
In addition, Kavanaugh has declined to join conservative dissenting opinions in a few high profile cases. One was the minor illegal immigrant abortion case, Garza v. Hargan, 874 F.3d 735 (2017). Another was a suit challenging Obamacare’s requirement that faith-based nonprofits and other religious ministries facilitate access to contraception and abortifacients for their employees, Priests for Life v. U.S. Dep’t of HHS, 808 F.3d 1 (2005).
Kavanaugh dissented from the liberal outcome in both cases. However, he did not join a strong dissenting opinion by Judge Karen LeCraft Henderson in the first case and by Judge Janice Rogers Brown in the second.
To be clear, I think Kavanaugh would be a good Supreme Court Justice. But he is not the left’s worst nightmare. Or he wouldn’t be if the left weren’t so obsessed with hounding President Trump out of office.