Since Day 1, Brett Kavanuagh’s nomination for the Supreme Court has been a complete disgrace. The Federalist Society had more sway over this pick than President Donald Trump, the Senate Judiciary Committee had any unprecedentedly low amount of documents, and serious allegations of sexual assault have dismissed as a partisan conspiracy. This article will take a close look at Kavanaugh’s Supreme Court nomination process and explain why it’s been a sham every step of the way.
Why Kavanaugh Was Nominated
It’s indisputable that the Federalist Society, a right-wing and libertarian group who believe in an originalist interpretation of the Constitution, played a significant role in Trump picking Kavanaugh. Donald McGahn, the Trump campaign’s top lawyer, helped the then-GOP primary candidate create a list of potential Supreme Court picks to replace the deceased Antonin Scalia.
This helped reassure the undecided GOP base that Trump could be relied on if he were to win the Presidential election. What wasn’t so widely reported was the fact that while this list was being constructed, McGahn received significant input from Leonard Leo, who at the time was the executive Vice President of the Federalist Society. McGahn later made a speech at a Federalist Society event in November 2017.
To make things even more interesting, Brett Kavanaugh wasn’t even on Trump’s original list of potential Supreme Court nominees. Kavanaugh made the revised list, which was published in November 2017, right around the same time McGahn was making speeches at the Federalist Society.
Coincidence? Perhaps, but you deserve to know that at least one right-wing special interest group has a significant influence over who gets a lifetime appointment on the highest court in the United States.
Very Few Kavanaugh Documents Were Given To The Senate Judiciary Committee
One of the main arguments the Democrats in the Senate Judiciary Committee was that very few Brett Kavanaugh documents had been released. Republicans in the Committee made the argument that tens of thousands of documents were released to the public, but Democrats accurately pointed out that only a very small percentage of documents had actually been released.
Democrats were especially frustrated that they didn’t have access to documents where Kavanaugh would’ve addressed issues like healthcare, Enron, and torture.
Tensions really boiled over when Cory Booker (D-NJ) released allegedly confidential documents. When Senate Republicans objected to the release and stated that he could legal repercussions, Booker simply said, “Bring it.”
It was later announced that the documents Booker released had already been declassified, making his actions a little less heroic. Regardless, this outburst really shined a light on how much of a struggle it was for Democrats on the Senate Judiciary Committee to access documents and show them to the public.
The Sexual Assault Allegations
Sexual assault allegations are difficult to prove, especially when the event in question happened nearly four decades ago. In my opinion, it’s unlikely we’ll ever have definitive proof that Christine Blasey Ford’s accusations are true.
However, her accusation and the ones that followed clearly demonstrated that a further FBI investigation was absolutely necessary. Fortunately, Jeff Flake (R-AZ) stated that he wouldn’t vote for Kavanaugh until the FBI was allowed to investigate further.
Unfortunately, the investigation is being severely limited in its scope. Republicans set an arbitrary one week deadline. The FBI can’t question question Julie Swetnick, Kavanaugh’s third accuser. The FBI can’t question the supermarket where Mark Judge, the other man allegedly involved in the sexual assault, worked at the time, which could help construct a clear timeline of events.
Why are the GOP and White House trying to rush this investigation? Why isn’t the FBI being given as much as they need to perform as thorough an investigation as possible?
There are only three logical conclusions:
- The GOP is afraid they’re going to lose the House and the Senate, which could force them to nominate more liberal judges. I think this fear is a bit unwarranted, as any judge Trump nominates would have a conservative lean and the Democrats haven’t demonstrated the willingness to delay votes on judges.
- The GOP really believes these claims are completely baseless. However, if this were really true, wouldn’t they want a thorough investigation so they could clear Kavanaugh’s name and eliminate the controversy surrounding his nomination?
- The GOP is afraid of what a thorough investigation could uncover. They’re worried an investigation could sink Kavanaugh’s nomination, and they don’t want to go through another nomination process from step one.
So What’s The Big Rush?
First, let me say this — it’s hard to ignore the irony of the Republican Party rushing through a Supreme Court nominee after they obstructed the nomination of Merrick Garland and left a seat vacant for more than 400 days. If this were a movie, viewers would be disappointed by the lack of subtly in this hypocrisy.
The simplest explanation for the rush of Kavanaugh’s confirmation is that the GOP wants the Supreme Court to have a conservative edge as soon as possible. The GOP is in serious risk of losing both the House and Senate, giving the Democrats more control over what type of judge would get confirmed to the Supreme Court.
If you dig a bit deeper, things get a lot more interesting and a lot more troubling. There’s a major case on the Supreme Court’s docket that could benefit Trump in the looming Russia meddling investigation. That case is Gamble v. United States, which will rule on whether or not people who are pardoned by the President of the United States are subject to the 5th Amendment’s double-jeopardy clause.
Essentially, if overturned, individuals pardoned of federal crimes could not be tried in civil court. This has huge ramifications for the Trump-Russia investigation.
Let’s say Trump pardons Paul Manafort, who was convicted of bank fraud and agreed to cooperate with the Mueller investigation. Manafort could no longer be convicted of a crime, protecting him from punishment and deincentivizing him from cooperating with Mueller’s investigation. Theoretically, Trump could do this for a number of his associates, potentially leading the Mueller investigation to a dead-end.
Trump isn’t the only one who could benefit from the Gamble v. United States decision. Orrin Hatch (R-UT), a member of the Senate Judiciary Committee, submitted a forty-four page amicus brief in the case. Hatch has said that he would like to see the dual-sovereignty doctrine overturned.
Regardless of motivations, it’s clear the Republicans are rushing this nomination process. At the very least, this process needs to be slowed down to allow the FBI to fully investigate the accusations made against Kavanaugh.
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