Blog No. 190. Judge Kavanaugh Will Be Confirmed (And Probably Should Be)

The sturm und drang provoked by the Cohen and Manafort episodes, and the confusion of everyday hi-jinks in the Trump White House, were interrupted by the shock of John McCain’s death. Even then confusion and pettiness prevailed as it took the  president two days to offer a brief, pro forma “appreciation” of McCain’s extraordinary service and, in the meantime, he had difficulty figuring out  how long the White House flag should fly at half-mast. Against that background, it may  seem something of a relief to turn to a more “normal” sort of issue, the confirmation of  a Supreme Court justice, but even that matter has been infected by the toxic winds that swirl about our president.

Before facing up to those winds, it may be observed that, even without them, the  nomination of Judge Brett Kavanaugh would have generated considerable controversy. Kavanaugh once clerked for the justice he is to replace, Anthony Kennedy, but it is clear that he is decidedly more conservative than Kennedy, his heroes among previous justices being Rehnquist and Scalia. It will not surprise readers to know that RINOcracy.com, unlike the Federalist Society, was not asked to submit to President Trump a list of possible nominees. Had we been asked, it is not at all clear that Judge  Kavanaugh’s name would have been on our list as his record on various matters is decidedly more conservative than RINOs might wish. On the other hand, from Trump’s perspective, Kavanaugh was a sound choice and one that at least reflected greater deliberation than he has shown on other occasions.

When Kavanaugh’s name was initially floated, it prompted some grumbling from social conservatives who apparently wanted a nominee more full-throated in his or her opposition to abortion and same-sex marriage. Since the nomination was announced, however, the grumbling has disappeared and will surely not be a factor in Kavanaugh’s confirmation. Democrats, for their part, have expressed almost unanimous opposition to Kavanaugh, with Senate Minority Leader Chuck Schumer immediately vowing to fight the nomination “with everything I’ve got.” The Democratic reaction may be unsurprising, but it will almost certainly be futile. The Democrats may generate enthusiasm, and perhaps campaign contributions, but the Republicans have the votes. Barring an unexpected development of major proportions, Kavanaugh will be confirmed.

Despite the virtual certainty of confirmation, the Kavanaugh hearings will command huge amounts of media attention. Kavanaugh’s record will be exhaustively scrutinized, but at this point it appears that, from a personal standpoint, it is not merely unblemished but distinguished. Inevitably, Democrats will attempt to probe, sometimes with imagination and skill, how Kavanaugh might vote on this or that issue, but it is predictable that Kavanaugh will gracefully deflect those queries. Democrats should consider along the way that, even if they were somehow able to derail Kavanaugh’s nomination, the possibility of Trump’s coming up with another nominee more to their liking is approximately zero. Kavanaugh is not uniquely, of even particularly, Trumpian; he would likely have been high on the list of potential nominees for any Republican president.

The issue of abortion may be illustrative. Opposition to abortion has, in varying degrees, been a pillar of Republican orthodoxy for decades and will be found in virtually all judges with a Republican pedigree. In Kavanaugh’s case, Senator Susan Collins, who has been considered to be one of the very few possible “no” votes among Republican Senators, announced with evident satisfaction that he had assured her of his belief that Roe v. Wade is “settled law.” In fact, Roe is, literally, not settled law and has not been since it was modified in the 1992 case of Planned Parenthood of Pennsylvania v. Casey. In Casey, the Court followed Roe in finding a constitutional right to abortion, but significantly departed from that decision by holding,  among other things,  that restrictions on abortion are not unconstitutional unless they place an “undue burden” on a woman’s right to obtain an abortion.

Kavanaugh’s acknowledgement that he regards  Roe/Casey as settled law is not a commitment to avoid unsettling the law by overruling the two cases, as the Supreme Court does to settled law from time to time.  While Democrats will  get no commitment from Kavanaugh to preserve Roe/Casey, the absence of such a commitment does not mean that he will necessarily vote to overule those decisions. In opposing Kavanaugh, Schumer and other Democrats have seized on the fact that as a candidate Trump said that he would appoint justices who would overrule Roe, but there are two problems in putting much weight on such statements. First, those pronouncements, like many others from Trump, are hardly self-executing and are frequently subject to change. Second, to the extent that they are taken literally and seriously, they would apply to anyone whom Trump might nominate.

With Kavanaugh or any other Trump nominee, the risk to abortion rights may lie less in an outright overruling of Roe/Casey than in reinterpretation and modification, as Casey did with Roe, but with more severe impact on abortion rights. The very standard of “undue burden” is itself inherently susceptible to varying interpretations. That is illustrated, for example, by Gonzales v. Carhart, in which the Supreme Court decided, 5-4, in a 2007 opinion by Justice Kennedy, that a ban on so-called “partial birth abortions” did not constitute an undue burden; Justice Ginsburg disputed the point vigorously. On the other hand, in 2016, Justice Kennedy joined a 5-3 majority in Whole Women’s Health v. Hellerstedt, holding that certain restrictions placed on abortion clinics by the State of Texas did constitute an undue burden.

After Kavanaugh was nominated, attention was quickly focused on his opinion in Garza v. Hargan, in which a pregnant minor had entered the United States illegally, and was apprehended and placed in custody. A majority of the D.C. Circuit, sitting en banc, held that the minor, then in her 16^th or 17^th week of pregnancy, was entitled to an immediate abortion. Judge Kavanaugh dissented, writing that, applying Roe/Casey, the government was entitled to a brief delay in which to place her with an immigration sponsor. After placement, she could consult with her sponsor concerning her decision, but would not be required to do so. The delay would have amounted to 7 days. One may agree or disagree with Judge Kavanaugh’s decision, but it is not likely to mark him as an extremist on a mission to overturn Roe/Casey.

Analyses could be made of Kavanaugh’s decisions on various other issues, but the most significant questions may concern how he might rule in a case directly involving President Trump and the Mueller investigation. Several Senate Democrats, and Harvard scholar Larry Tribe, have suggested that the pendency of the Mueller probe warrants a delay in the confirmation process. In this, they have been joined by the estimable Jennifer Rubin:

Kavanaugh himself should insist his nomination be delayed until after the special counsel’s report is issued or recuse himself from matters pertaining to Trump arising out of the investigation. Trump can withdraw the nomination but Kavanaugh will have sent a powerful signal that he is his own man and that he will not allow the Supreme Court’s legitimacy to be questioned.

Throughout the Trump presidency, Jennifer Rubin has been a beacon of conservative courage and common sense. In this instance, however, she may have gone astray.  Kavanaugh is not likely to follow her advice to ask for a delay, nor could he realistically. A delay in the confirmation process is not the prerogative of the nominee and a suggestion of delay might well lead Trump to withdraw his nomination. Nor is there any reason for an advance recusal from “matters pertaining to Trump arising out of the [Mueller] investigation.” There is no basis to question his impartiality on such matters more than that of Trump’s other appointee, Justice Gorsuch or, for that matter, other conservative justices.

During a floor speech, Senate Minority Leader Chuck Schumer was guilty of sloppy language at best in arguing that it is “unseemly for the president of the United States to be picking a Supreme Court justice who could soon be effectively a juror in a case involving the president himself.” If some sort of case involving Trump does reach the Supreme Court, the justices’ roles will not resemble those of jurors. That said, it must be acknowledged that, even assuming complete impartiality on Kavanaugh’s part, his record may provide some ground for concern as to how he might rule on, say, the enforceability of a Mueller subpoena.

In a 2009 Minnesota Law Review article, Kavanaugh wrote:

Congress should consider [providing temporary immunity] with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.

It should be noted that Kavanaugh was speaking not of what the law now requires, but what Congress might provide (but has not provided and is unlikely ever to provide). Moreover, writings in a law review are never a firm basis for predicting how a justice would rule in a particular case with very particular circumstances and after considering arguments of counsel and other justices. Nevertheless, Kavanaugh’s expressed concerns over the distraction and burden that a criminal investigation places on a president, could be relevant to enforcement of a subpoena. Indeed, the Supreme Court considered burdens on the president in United States v. Nixon in ruling on a subpoena for tapes of presidential conversations.

In Nixon, the Court concluded that burdens on the presidency were out-weighed by the need for evidence in an ongoing criminal trial. In contrast, a subpoena seeking testimony from Trump raises different issues that could lead any justice to a different result. To begin with, there may be a difference between seeking tapes or written material and demanding oral testimony. Second, in the case of a Trump subpoena, it seems unlikely that his testimony will be required for the criminal prosecution of Trump or anyone subject to grand jury indictment.  Given the prevailing view that a sitting president cannot be indicted, Trump’s testimony is likely to be relevant primarily to a possible impeachment proceeding. If so, the Court could decline to enforce a grand jury subpoena on that ground. The foregoing brief comments do not approach a complete analysis but are intended only to indicate the complexity of the issues and suggest that it would be unwise to deny confirmation to Kavanaugh on the basis of speculation as to how he might vote on a case that might or might not come before the Court and, if it did, would raise difficult issues that are presently undefined.

One element in Democratic thinking may be that, if they are somehow able to delay the confirmation beyond November, they might take control of the Senate in the midterm elections. Both prongs of the hypothesis are unlikely, but if both should come to pass, what then? Would Democrats then refuse to confirm Kavanaugh, and any other Trump nominee, until after the 2020 election? That would be a severe form of retaliation for Republicans’ refusal to confirm Judge Merrick Garland in 2016. It would be understandable, given the depth of Democrats’ continuing resentment over Garland’s treatment, but it would be indefensible and could well backfire on Democrats in 2020. On the whole, Democrats should probably expect to get used to the idea of Justice Kavanaugh and hope to regain the White House before another vacancy occurs.