Brett Kavanaugh’s July nomination to the United States Supreme Court prompted an explosion of worry from those who believe in women’s bodily autonomy, as well as those disturbed by his agreement with a 2015 ruling in favor of a program that tracked citizens’ metadata.
But there is an even more pressing reason to keep the current federal appeals judge off the high court. It is a reason that should unite people who otherwise disagree over things like female autonomy and the Fourth Amendment. Kavanaugh has a dangerous romance with executive power. The position to which he now aspires involves not only interpreting laws in light of the Constitution, but also functioning as a check on the legislative and executive branches.
Yet Kavanaugh, in his own words, opined that Congress should pass a law exempting a sitting president from civil suits and investigations, on the specious reasoning that because being president is serious business, such suits and investigations are a distraction and an inconvenience.
A few caveats: First, Kavanaugh wrote his now much-discussed “The Separation of Power During the 44th Presidency and Beyond” in 2009, nearly 10 years ago.
Not everything he floated in that Minnesota Law Review piece is poison. His suggestion of an amendment that would fix a president’s term to a single six-year period has merit, in that this would put a halt to presidents campaigning mid-way through their first term for their second term. Especially attractive was his call for the Senate to consider judicial nominees within six months.
But the points he raised about executive power are the ones in the news — and they should be.
Kavanaugh, in an “attempt to sketch out some possible solutions and call for further discussion,” said Congress should provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations.
Kavanaugh stated how hard the job of president is, that it “makes being a member of Congress or the judiciary look rather easy by comparison. … the job and the pressure never stop.”
He said he believes the president “should be excused from some of the burdens of ordinary citizenship while serving in office.”
But the president is a citizen. It does not matter how difficult the job is. Falling under an investigation “burdens” private citizens, too, but the mere fact someone may be inconvenienced is not a good reason to put investigations on hold. Neither is the possibility that a person who holds an important job would find an investigation “distracting,” which Kavanaugh also contended.
Presidents choose to seek the office and all that comes with it. To him whom much is given, much shall be expected. Or, as a past president reportedly said: If you can’t stand the heat, get out of the kitchen.
Kavanaugh in the article disclosed he did not always think presidents should be exempted from lawsuits, prosecution and investigation. But he suggests Congress pass a law that allows personal civil suits against presidents to be deferred so a president could “focus on the vital duties he was elected to perform.”
Additionally, Kavanaugh advocated that Congress do the same with respect to criminal investigations. “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.”
There is at least one president who would agree wholeheartedly, and that is the one who has nominated Kavanaugh.
It is of course impossible at this point to say with certainty whether SCOTUS will be making a determination about the Trump presidency, let alone how Kavanaugh, if appointed, would rule on such an issue. But it is not a far leap to say Kavanaugh would favor the executive. Or that Trump is banking on being able to lard the court with executive-friendly justices.
Think beyond Trump to the long-term dangers of that. Again, a function of any of the three branches is to keep the other two branches from amassing too much power at the expense of We, the People.
Yascha Mounk, in “The People Vs. Democracy,” spoke of “populists” who rise to power by directing anger against certain classes of people, then, after achieving power, go after “all institutions, formal or informal, that dare to contest their claim to a moral monopoly of representation.” It’s not hard to imagine the judiciary, the institution of actual recourse for rights violations, being on that list. An autocrat need not destroy the courts outright. He or she need only control them.
Kavanaugh in his 2009 article stated criminal investigations concerning a president are “inevitably politicized” and that the indictment and trial of a sitting president would “cripple the federal government.”
He further posited that criminal investigations will distract a president, taking his focus away from his responsibilities. (Apparently, a president’s responsibility not to create a situation that causes him to fall under investigation doesn’t factor in. And the current person in the Oval Office doesn’t even feign interest in the actual responsibilities of his job.)
Kavanaugh, as legal minds who have begun weighing in since his nomination have noted, did not say a sitting president can’t be investigated and prosecuted once out of office, but only that Congress should make a law shielding him while he is in office.
But that should be plenty to raise our collective hackles. It remains a staggering assertion, even despite Kavanaugh’s insistence in the piece that he is not trying to eliminate checks or place the president above the law, but merely to defer litigation and investigations until a president leaves office. The fact that Kavanaugh also notes the constitutional process of impeachment , similarly, is not enough to allay the concerns of anyone who opposes executive overreach.
If Congress were to shield a president in the way Kavanaugh envisions, a president would have to be removed from office before justice could be served. But if the Senate majority is unable or unwilling to put country ahead of party — a reality we are currently seeing play out— a criminal president could not only get away with his crimes, but could continue to commit them. We might, if we’re lucky, learn about it after such a president has been voted out, term-limited out, or resigned. But an investigation after the fact will not undo the damage, while a timely investigation might reduce harm.
I don’t know whether Kavanaugh contemplated that possibility. I am, however, convinced the Senate should question him closely on the matter — and not be seduced by glib assurances.
At present, there is no law as suggested by Kavanaugh. It is the job of the legislative branch to hold in check executive power, and not to issue blank checks for that power to be cemented. This is also a core job of the judicial branch.
Thus, the nomination to the Supreme Court of a man who advocated such extreme executive protections — on the ultimately flimsy reasoning that investigations are inconvenient — should be a non-starter.
Katharhynn Heidelberg is an award-winning journalist in Montrose, Colo.
