Immediately after Justice Anthony Kennedy announced his retirement from the Supreme Court, Sen. Cory Booker made the same argument I did, which is that a nominee should be delayed until after the Mueller investigation is completed. Booker said that for a president to nominate a Supreme Court justice under the current circumstances was a conflict of interest.
During those remarks, Booker pointed to the “loyalty tests” that we’ve all grown accustomed to from this president. We know that he asked for loyalty from the former FBI director and that he has publicly stated that if he knew the attorney general would recuse himself from the Russia investigation, he wouldn’t have nominated him.
Brett Kavanaugh, Trump’s pick to replace Justice Kennedy on the Supreme Court, has made his views known in a way that would pass this president’s loyalty test.
“I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Judge Kavanaugh wrote in 2009 in The Minnesota Law Review. Among those burdens, he said, were responding to civil lawsuits and criminal charges.
“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” Judge Kavanaugh wrote. “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”
When it comes to executive privilege, that is about as extremist as it gets. Kavanaugh would clearly rule that a sitting president can’t be indicted—a question that is very likely to come before the Supreme Court. He also wouldn’t allow a president to be subpoenaed, another question that is waiting in the wings. It even sounds as though he could rule against the entire Mueller investigation taking place if that question were to be posed to the court.
There are a lot of valid concerns about the way Kavanaugh would tip the Supreme Court in the direction of the extremist conservatives. But the truth is that Booker is right. Trump just chose the most self-serving nominee out of the many that were on his list.
During that discussion, Maddow notes that the White House reviewed and overtly considered Kavanaugh’s writings quoted above when choosing a nominee. She also notes that it isn’t just the Mueller investigation that Kavanaugh would object to, it is also ongoing cases like the ones about the Emoluments Clause, the Trump Foundation and the case that could be building based on the raid of Michael Cohen’s offices.
We were already in uncharted waters with a president who might have conspired with a foreign adversary to influence his own election and a Republican-controlled congress that is enabling him. Now that same president has nominated someone to the Supreme Court who has very clearly written that such crimes shouldn’t even be investigated against a sitting president. That is the state of affairs in the United States right now.