High Stakes at the Supreme Court

by Don Kohn.

The nomination by President Trump of Brett Kavanaugh to succeed retiring Justice David Kennedy on the U.S. Supreme Court emphasizes in stark terms the absolute necessity of Democrats assuming control of both houses of the U.S. Congress in the November 6 election.

Kavanaugh’s commitment to extreme right wing public policy issues has been well documented in the media. Here’s how Sen. Tom Udall (D-NM) summarized it:

“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.

Above the Law

But just as concerning (if not more so) is Kavanaugh’s view, as expressed in a Law Review article, that the President should be above the law. That is a critical factor today because Kavanaugh could be the swing vote in Trump’s favor should a case against the President reach the Supreme Court.

Thus, Kavanaugh could be Trump’s “ace in the hole.”

Kavanaugh’s assertions came in a Minnesota Law Review article three years after he assumed his current position on the DC Circuit Court of Appeals. They play directly into Trump’s autocratic desires and possible protection 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, is a rigid right-wing ideologue who, if confirmed, would move the court far to the right.

Battle Lines Drawn

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.

That is why it is critical to support and be part of efforts to convince possible swing votes in the Senate to oppose this nomination. They include GOP Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), who both have said that upholding the precedent of the Roe v. Wade decision is an important factor in their vote. Sen. Claire McCaskill (R-MO) is another GOP senator considered a possible Trump defect on the nomination.

But we must encourage Democratic senators, including those in red states, to hold firm because they are being targeted by powerful Trump-aligned interests.

With organization Americans for Prosperity, Republicans are targeting vulnerable Democratic senators Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV) and Doug Jones (AL).

Carrie Severino, chief counsel for the network, told NBC News the organization spent $10 million in advertising in support of Gorsuch and they are prepared to spend “whatever it takes” to ensure that Kavanaugh is confirmed.

That effort is not going unmet. Demand Justice, run by former Senate Minority Leader Chuck Schumer aide Brian Fallon, is working with NARAL Pro-Choice, MoveOn, Indivisible, and other progressive groups. They have pledged at least $5 million to be used, in part, in North Dakota, Indiana and West Virginia.

So, the battle lines are drawn and the stakes could not be higher. If ever there was a time when those opposed to Trump and his policies should rise up, this is it.

Every effort must be made to block this nomination until after the November elections, just as the Republicans did when President Obama nominated Merritt Garland in 2016.

But what of the future? What if the Senate remains in Republican hands and President Trump has yet another opportunity to nominate yet another right-wing justice, even as he continues to stack lower federal courts in the same way?

The stakes could not be higher. If you’ve been waiting on the bench, this is the time to get active. Now, is the time for everyone to get in the game and elect Democrats at every level in November.

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