Kavanaugh was a 30-something Republican lawyer on the make when he signed up with independent counsel Kenneth Starr for the impeachment of the popular-majority elected Democratic president Bill Clinton for lying about sex. His admirers emphasize that Kavanaugh argued for omitting from Starr's report the salacious details of Clinton's relationship with the White House intern Monica Lewinsky.
Despite his sensibilities about sex, Kavanaugh had no political scruples about the nakedly partisan drive to impeach Clinton for a peccadillo and remove him from office. The Senate, it will be remembered, rejected the perjury charge on a 45-55 vote and deadlocked 50-50 on the obstruction count, far short of the two-thirds majority required for conviction.
History now judges the Clinton impeachment as a mistake. A decade later, Kavanaugh himself appeared to have second thoughts, at least to some extent, as seen in a law review article published in 2008 now attracting close attention after his nomination to the Supreme Court.
With George W. Bush's presidency about to end,, Kavanaugh reflected on his five years-plus in the Bush White House as staff secretary or associate counsel to call for shielding the president from legal investigations. "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," Kavanaugh wrote in the article published in the Minnesota Law Review.
A decade earlier, the Supreme Court in Clinton v. Jones (1997) had refused to find the president constitutionally entitled to such immunity. Kavanaugh stopped short of disagreeing with the Court, but he admitted that his views back then, "in retrospect," were "a mistake." In a sentence now startlingly prescient, Kavanaugh concluded, "A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."
By the time of the law review article, Kavanaugh was a judge on the U.S. Circuit Court of Appeals for the District of Columbia, appointed to the bench at the young age of 41 by Bush, a fellow Yale alumnus. The Republican-controlled Senate confirmed his nomination on a 57-36 vote in spring 2006 after Democrats had delayed the confirmation for three years by citing his partisan record in the Clinton impeachment and the Bush White House.
Kavanaugh complained in the law review article about the confirmation process and called for ensuring "prompt Senate votes on executive and judicial nominations." With a Democrat in the White House eight years later, however, Kavanaugh appeared to have forgotten his previous recommendation. He watched from the sidelines, in public silence, as the Republican-controlled Senate refused to consider President Obama's nomination of Kavanaugh's D.C. Circuit colleague, Merrick Garland, to the Supreme Court.
In the law review article, Kavanaugh had called for the Senate to adopt a rule requiring a vote on "every judicial nominee" within 180 days of the nomination. The Senate's tactic drew no public objection from Kavanaugh's chambers.
President Trump passed over Kavanaugh's pre-judicial record in announcing his decision to nominate Kavanaugh for the vacancy created by Justice Anthony M. Kennedy's retirement. His many supporters mostly follow suit: they see in his 12 years on the federal bench the very model of a judge's judge. They also profess no concern whatsoever that Kavanaugh will be less than independent of his presidential benefactor if confirmed.
The question is hardly academic, with Trump under investigation at the very moment. "I don’t know of any justice who has staked out as strong a position on presidential immunity even from questioning as Judge Kavanaugh has,” Walter Dellinger, a former acting U.S. solicitor general in the Clinton administration, remarked to The New York Times.
Michael Gerson, a colleague of Kavanaugh's as a Bush speechwriter and now a syndicated columnist, pooh-poohed any worries about Kavanaugh's independence. Kavanaugh, Gerson wrote, knows that the Court itself may have to impose restraints on Trump's "lawlessness and bullying" and "has the character and patriotism to act upon it."
Kavanaugh showed no such character in accepting the nomination with Trump at his side. Instead, he fawned over the president, gratuitously and as the worst kind of toady. "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said. Trump surely lapped it up, but the assertion is palpably false and surely beyond Kavanaugh's personal knowledge besides.
Moments later, Kavanaugh also complimented Trump by saying that he had the opportunity to view the president's "respect for the judiciary." Apparently, Kavanaugh paid no attention when candidate Trump accused the judge in the Trump University case of being biased against him because of the judge's Mexican heritage. And apparently Kavanaugh also missed the president's various criticisms of the several federal judges who ruled against his travel ban.
Those are not the words of a justice prepared to stand up against Trump's megalomaniacal view of his powers as president. Critics naturally view Kavanaugh not as the strong-backboned jurist that his former colleague Gerson believes him to be, but as a likely servile apologist for the president in any potential legal challenge to his powers.
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