President Trump's Supreme Court nominee, Brett Kavanaugh, has written that the President should be exempted from prosecution. Is that Trump's "ace in the hole?"
Kavanaugh's assertions in a 2009 Minnesota Law Review article three years after he assumed his current position on the DC Circuit Court of Appeals play directly into Trump's autocratic desires and as an ace in the hole for the President, should he face prosecution once Special Counsel Robert Mueller's investigation comes to a close.
“I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible," Kavanaugh wrote. "The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
Kavanaugh wrote that “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.”
All of this is recounted in The Nation by John Nichols, who writes that Sen. Jeff Merkley (D-OR) was correct when he said "A President under investigation should never be allowed to appoint a Justice to the Supreme Court.”
Nichols points out that Kavanaugh, a former staff secretary in the Executive Office of the President under President George W. Bush, who now serves on the United States Court of Appeals for the District of Columbia Circuit, is a rigid right-wing ideologue who, if confirmed, would move the court far to the right. He quoted Sen. Tom Udall (D-NM):
“The president pulled Judge Kavanaugh’s name from a pre-approved list concocted by radical, far-right special interests that are committed to undermining a woman’s right to choose, health care protections, safeguards for workers and seniors, LGBTQ rights, and a host of other critical public protections that touch the lives of every New Mexican and every American. These extreme groups put Judge Kavanaugh’s name on their list for a reason.”
Those issues are of deep concern to many Americans, as they should be, and for many of us, they should disqualify him from serving on the high court.
But even more concerning (if that is possible) is Kavanaugh's view, as expressed in his Law Review article, that the President should be above the law. As Nichols points out, Kavanaugh could be the swing vote in Trump's favor should a case against the President reach the Supreme Court.
It is generally assumed that Republicans have enough votes in the Senate to confirm Kavanaugh and that Democrats are helpless to prevent his confirmation. But, really, their 51-49 plurality is razor thin and even more so since Sen. John McCain (R-AZ) is at home battling brain cancer and may not be able to vote.
If ever there was a time when those opposed to Trump and his policies should rise up, this is it.