It might be inherent in our Constitutional design that a Supreme Court nominee would reflect the values of his or her appointing president. But when that nominee is the mirror image of a deeply corrupt president, whose authoritarian impulse to put himself above the law flashes through in 140-character outbursts, it’s not a family resemblance we can afford to ignore.
Brett Kavanaugh has shown throughout his nomination process that he has a distinct leaning toward holding the president immune from a criminal investigation, even as President Trump seems ever closer to drowning in one. Even more disturbing, however, is a comparison of President Trump’s most erratic and lawless statements with the more erudite and crafted positions of Judge Kavanaugh.
From a President who repeatedly sought loyalty pledges from other government officials—telling former FBI Director James Comey, “I need loyalty, I expect loyalty”—we got a Supreme Court nominee whose first words on the public stage were reminiscent of the early Trump Cabinet meetings, where each member was required to lavish absurd praise on Trump, their Dear Leader, at the outset.
“I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh told Trump, who has literally accused every judge who ruled against him of either being corrupt or racially inferior. “No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” he added, without the slightest bit of ironic recognition that the president chose him from a list circumscribed by powerful special interests.
Regarding the investigation that has engulfed his presidency, Trump has made clear that he finds the special counsel a tremendous distraction. “The MAKE AMERICA GREAT AGAIN agenda is doing very well despite the distraction of the Witch Hunt,” Trump has said. Similarly, Trump’s lawyers have requested that lawsuits brought by his sexual harassment victims be halted because they “could distract a president from his public duties, to the detriment of not only the president and his office but also the nation.” Here again, Kavanaugh has provided the mirror image: “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office.” He went on, “Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting … We should not burden a sitting president with civil suits, criminal investigations or criminal prosecutions.”
Even in their discussions of Watergate, we can some similarities. Trump took a unique view of John Dean: “The failing @nytimes wrote a Fake piece today implying that because White House Councel Don McGahn was giving hours of testimony to the Special Councel, he must be a John Dean type ‘RAT.’ But I allowed him and all others to testify – I didn’t have to.” That suggests a White House employee giving testimony about executive branch wrongdoing, without the president’s authorization, was a fundamental violation.
Certainly Kavanaugh would never describe Dean as a “rat.” Indeed, he took great care in his hearing to praise the justices who decided U.S. v. Nixon. But in 1999 he expressed a view that comports with Trump’s underlying view of the presidency: “Maybe Nixon was wrongly decided—heresy though it is to say so. 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. Maybe the tension of the time led to an erroneous decision.”
Similarly, Trump has consistently made sure to clear a runway for himself to take drastic action against the special counsel investigation, in statements that have a distinct authoritarian slant: “I have absolute right to do what I want to do with the Justice Department.” Here, too, Kavanaugh’s beliefs on the unitary executive and, for that matter, the Nixon case, are unmistakably well-matched: “Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute?” he said, suggesting that the law and the judiciary have no business in the president’s prerogatives. “Maybe so.”
Trump has apparently tried to fire special counsel Mueller, only to be rebuffed by his own White House Counsel—but he has made it a point to reserve the right. It just so happens that this aspiring dictator, who holds any law or constraint on his power in contempt, has a legal soulmate.
In just a few months, Kavanaugh’s own quotes from last week could be cited to him by Trump’s Solicitor General, should he fire Robert Mueller. “Justice Scalia also argued that a federal prosecutor should be removable at will for more practical reasons,” Kavanaugh told senators in defense of his disdain for independent counsels. “If there is an out-of-control prosecutor, Justice Scalia reasons that the president should possess the authority and the responsibility to remedy the situation.”
And then, of course, there is the question of recusal. Given all these striking similarities, it’s no surprise that senators raised the question. White House Counsel Don McGahn, a central witness, if not a target in the investigation, was sitting directly behind Kavanaugh during the hearing, and he’s reportedly been his chief advocate for the nomination. What’s more, Kavanaugh’s records were being reviewed, screened, and provided by Bill Burck, who just happens to represent McGahn, former White House Chief of Staff Reince Priebus, and former White House Chief Strategiest Steve Bannon regarding the special counsel. Both Burck and McGahn held the keys to Kavanaugh’s future, and yet both have an unquantifiable interest helping Kavanaugh quash the investigation, if given the chance.
The imperative of having Kavanaugh recuse himself on any such case is overwhelming. But there was an obvious tension for him, given Trump’s near-constant airing of his views on his attorney general, Jeff Sessions, recusing himself from the Russia probe. “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,” he told The New York Times.
Recusing himself would be an obvious, and seemingly well-warranted assertion, of Kavanaugh’s judicial independence. Ironically, the answer we got instead came first from the White House. “Pledging a decision on a particular matter or case—including the decision whether to hear the case–for political reasons, like obtaining confirmation votes, would violate the bedrock constitutional principle of judicial independence,” said Trump Spokesman Raj Shah.
Kavanaugh sat in his hearing and echoed almost verbatim the White House line, making the contradictory claim that acting independently of the White House would actually show a lack of judicial independence: “If I committed to deciding a particular case, which includes committing to whether I would participate in a particular case, all I would be doing is demonstrating that I don’t have the independence of the judiciary.”
If Kavanaugh is confirmed, these echoes of Trump’s authoritarianism will ring through Supreme Court opinions for decades to come. But we should step back and ask ourselves: if virtually every senator is horrified at the lawless, autocratic themes of Trump’s mis-capitalized tweets, why should we not be just as revolted when they are dressed up in legal sophistry by a career partisan political operative? We don’t know whether Kavanaugh himself is corrupt, but we do know his Supreme Court nomination was made with corrupt intent.