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It’s Kavanaugh For the Supremes.

In case you missed it or were living under a rock, on Monday night President Trump nominated Judge Brett Kavanaugh to be the next Supreme Court Justice.

Kavanaugh sits on the DC Court of Appeals, which is often described as the “second most influential court in the land” as due to its location, it hears cases dealing with Federal authority in such areas as agency regulations, scope of agencies, etc.

Dacid Lat at Above the Law writes of Kavanaugh:

Judge Kavanaugh, 53, has authored more than 300 opinions during his 12 years on the D.C. Circuit — which will, together with his work as a lawyer before taking the bench, provide some grist for the opposition mill. He worked for Ken Starr on the Whitewater/Monica Lewinsky investigation, and he served in the Bush White House, in the counsel’s office and as White House Staff Secretary. He will get tough questions from senators about his work as both a lawyer and a judge.

[….]

Judge Kavanaugh has an impeccable résumé: Yale College, Yale Law School, a SCOTUS clerkship, government service (the Justice Department and White House), Biglaw practice (partnership at Kirkland & Ellis), and more than a dozen years of distinguished service on the D.C. Circuit. There are no objective or qualification-based reasons to oppose him. Judge Kavanaugh is not just brilliant but also extremely likable, and he will perform superbly at his hearings (even better than Justice Gorsuch, I predict).

(See also Lat’s article The Supreme Court Sweepstakes: The Case For Judge Kavanaugh)

That won’t stop the left from trying to stop the nomination. As Jonathan H. Adler notes:

Judge Kavanaugh’s extensive record has created an extensive paper trail. There will be lots of documents for the Senate Judiciary Committee to review — and it’s certain that Senate Democrats will seek to slow things down on that basis. On the other hand, insofar as Senate Democrats have already announced their opposition to the nomination — some even before the nomination was announced — it’s not clear why they would need more time to review the record. After all, they don’t need more time to review materials if they’ve already made up their minds.

This opposition before the announcement was even made is exemplified by the Women’s March
:

No matter who Trump nominated, the Women’s March was going to oppose them.

There are two things about Kavanaugh that won’t get mentioned much in the press but they should. First, he is a pipeline for clerks to the Supreme Court on both sides of the ideological line. The law, and not politics, are what guides him and his judicial philosophy. The second thing is the number of times his dissents on the DC Court of Appeals have become the basis of majority opinions from the Supreme Court. That is impressive on so many levels that it is hard for the lay person to grasp. What it shows is that Kavanaugh has a great legal mind that is in tune with the Constitution.

What you will hear is that Kavanaugh says that sitting Presidents should not be held criminally liable for their actions.

That’s not what Kavanaugh has said.

In 2008, Kavanaugh wrote a paper for the Minnesota Law Review on the separation of powers.

The timing of the paper is important to understanding the context in that 2008 was the end of the Bush presidency and the beginning of the Obama presidency. Kavanaugh we looking back to see how the separations of powers (or lack of separation of powers) had harmed or distracted the then sitting president.

In President Clinton’s administration, separation of powers disputes arose over:
• War powers, and especially whether the President’s decision to take offensive military action in Kosovo in 1999 was consistent with the Constitution and the War Powers Resolution, particularly after the House failed to authorize the bombing;
• Impeachment, and whether perjury and obstruction of justice in a civil sexual harassment case and subsequent criminal investigation can constitute high crimes and misdemeanors justifying removal of a President;
• The independent counsel law, concerning both the statute itself and independent counsel Kenneth Starr’s exercise of his investigative and prosecutorial authority;
• Executive privilege, primarily whether government attorneys and Secret Service agents enjoy a privilege in federal criminal investigations of the President;
• Presidential immunity, particularly whether the President has the right to a temporary deferral of civil suits while in office, an issue the Supreme Court addressed in Clinton v. Jones;
• The pardon power, most notably whether President Clinton properly used that power when he pardoned certain people at the end of his presidency;
• The President’s control over executive branch personnel, particularly President Clinton’s decision shortly after taking office to fire all ninety-three United States Attorneys in one fell swoop;
• The President’s ability to obtain votes for his federal judicial nominees, as large numbers of Clinton judicial nominees never received an up-or-down vote in the Senate.

That is a significant list. And President Bush’s administration has sparked its own separation of powers disputes. Some of the most contentious struggles have been over:
• Presidential power and the wars against al Qaeda and later Iraq, most notably the controversies surrounding the detention and treatment of detainees at Guantánamo Bay and elsewhere, and the Terrorist Surveillance Program;
• Executive privilege, including disputes over the Presidential Records Act and conflicts over congressional access to executive branch information;
• The President’s control over executive branch personnel, especially the decision to dismiss certain United States Attorneys;
• The President’s use of signing statements to indicate his view that certain laws have potentially unconstitutional provisions or applications;
and
• The President’s power to obtain a vote for his federal judicial nominees, as large numbers of President Bush’s judicial nominees (like President Clinton’s) never received an up-or-down vote in the Senate.

This also is a rather extraordinary list. Between the Clinton and Bush administrations, moreover, the Supreme Court considered Bush v. Gore and decided an issue that effectively resolved the outcome of a national presidential election.

Given all of those events and controversies, it is no wonder that our system of separation of powers and checks and balances has come under stress.

Kavanaugh then proposed that Congress should pass laws deferring both civil and criminal cases against a sitting president as they are distractions from doing the most difficult job in the United States.

Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.”

The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Even in the case of Jones v. Clinton, the Supreme Court noted that a deferment of civil cases against sitting presidents might be a good thing as the process of such trials could be a devastating distraction to the President and therefore to the country.

Kavanaugh discusses the objections to the ideas he presents on deferrals:

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.

Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.

The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.

Those who oppose the Kavanaugh nomination will point the Minnesota Law Review article and say “see? Kavanaugh believes a President can act contrary to the law!” or “Kavanaugh would strike down any criminal prosecution of a sitting President!”

Nothing is further from the truth and the proof is in his comments on the Supreme Court decision in Jones v. Clinton.

As you go further into the article, you’ll find that as the law at the time of Jones v. Clinton allowed for civil suits against sitting presidents, Kavanaugh agrees with the decision. He also agrees with the Supreme Court that the Congress may want to consider a law deferring civil cases (and by extension criminal cases) until after the President is out of office. Kavanaugh makes the point that absent such laws, the courts are bound by laws that let the cases go forward.

Far from saying that as a judge he would strike down cases against a sitting President, Kavanaugh is saying that as a judge, he is bound by the law. He wouldn’t make new law from the bench. He wouldn’t be an advocate judge who doesn’t care what the law says.

Frankly, we had never considered Kavanaugh’s points but we do find them persuasive.

We don’t want a President that is distracted from running the country. At the same time, as Congress can impeach the President by holding a “trial” in the Senate, a sitting President is not immune from the consequences of his actions as president. It is the epitome of the separation of powers designed and codified in the Constitution.

In short, when you see and hear that Kavanaugh would not allow or would vote for not allowing a sitting president to be indicted for crimes, that’s a lie. A bald faced lie from people who either know they are lying or are too stupid and ignorant to read Kavanaugh’s paper to understand the ideas he was putting forth.

The main objection to Kavanaugh is not his judicial disposition. The main objection to the confirmation of Kavanaugh is that he was nominated by President Trump. That’s the real reason why the left is going nuts over this nomination.

Hatred of the president is not a valid reason to deny a nomination and yet that is what Kavanaugh is going to face in his confirmation hearings.

We hope that at the least, we have cleared up one of the lies that will be thrown at him during those hearings



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