Wednesday, September 12, 2018

Blogger Candidate Forum: Judge Kavanaugh

Hello Everyone:

It is a very lovely Wednesday afternoon and time for Blogger Candidate Forum. Last week, the tech gremlins set in, Yours Truly was all set to chat about the contentious confirmation Supreme Court hearings, however, Anonymous had different ideas. Today, we are finally going to talk about appellate court Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee. Contentious is one way to describe it. Another way to describe the hearings is evasive. As in, Judge Kavanaugh's answers or non-answers left more questions for the Senate and the public.  Even more puzzling was the lack of documentation available to the Democrats on the Judiciary Committee. Now that the main part of the hearings are completed, it is time to take a look at what happened and what comes next. 

Alright let us start at the beginning with the basic facts.  In July, Judge Kavanaugh was nominated by Mr. Donald Trump to fill the seat being vacated by retiring Justice Anthony Kennedy.  Justice Kennedy has been a frequent swing vote, often siding with his liberal colleagues on issues such as abortion, affirmative action, and LGBT rights (; July 9, 2018; date accessed Sept. 12, 2018). If confirmed, Judge Kavanaugh would tilt the court towards a more conservative direction.  Judge Kavanaugh previously worked for the George W. Bush administration and most important: Independent counsel Ken Starr's investigation of former-President Bill Clinton (Ibid). 

During the nineties, Judge Kavanaugh was part of the special prosecutor Ken Starr's investigation into Pres. Clinton.  Then-lawyer Brett Kavanaugh helped draft the questions that Pres. Clinton answered during his testimony before the Office of Independent Counsel, regarding his finances and relation with White House intern Monica Lewinsky. Judge Kavanaugh sent a memo to Mr. Starr saying that Pres. Clinton had disgraced his office, the legal system and the American people. He then proposed a series of questions about the relationship, complete with graphic descriptions of their relationship (; Aug. 17, 2018; date accessed Sept. 12, 2018).  During his tenure with the Starr team, Judge Kavanaugh appeared to be quite eager to press for an indictment of Pres. Clinton however his time in the Bush White House that changed his opinion. 

As a member of the White House legal counsel and staff secretary, Judge Kavanaugh was privy to the important documents handled by the president.  Years later, he wrote in the Minnesota Law Review "that experience in the executive branch made him a better and more independent judge (Ibid; July 10, 2018). He proposed, Provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions, and investigations (Ibid).  He stressed that no one, including the president, is above the law and the Constitution provides a remedy--impeachment and removal from office. Here is the problem: What to do about a president who is facing a special counsel, multiple state and federal investigations?  As a Supreme Court justice, would Judge Kavanaugh continue to support executive, as his writings indict?  Understandably it has given his critics the impression that the president is picking his own judge

This has Democrats up in metaphoric arms. However, there is just one very big problem. The president wants Judge Kavanaugh confirmed before the November 6 midterm elections.

The irony of the rush job is Judge Merrick Garland.  Judge Garland was nominated by former President Barack Obama to fill the seat left open by the sudden death of Justice Antonin Scalia.  Senate Majority Leader Mitch McConnell (R-KY) refused to let the process go forward.  None of the Republican members of the Senate refused to meet with Judge Garland and the nomination expired.  However, Karma bites back: A coalition of Democrats, led by Jon Cooper and Scott Dworkin, filed a criminal complaint that Judge Kavanaugh "lied under oath before the Senate back in 2004 and 2006 when he said he was unaware he read and used stolen emails in 2002. He was undergoing confirmation hearings to become a district and appellate judge. The judge hearing the complaint--wait for it--Merrick Garland. (; Sept. 9, 2018; date accessed Sept. 12, 2018). 

Be that as it may, the problem with the president's demand is that Committee members have not had sufficient time to review Judge Kavanaugh's paper trail.  A month before hearings began, the National Archive general counsel Gary Stern in Judiciary Committer chair Senator Chuck Grassley (R-IA) that in response to his request to begin 

...rolling production to the later than August 1, 2018, and "complete the  rolling production by Augst 15, 2018."... The National Archive is ...not able to complete our review of all the records that you have requested by August 15, 2018.... and currently expect to be able to complete the remaining 600,00 pages by the end of October 2018,... (; Aug. 2, 2018; date accessed. Sept. 12, 2018).

This meant Committee members, thanks to a last minute release of papers by Bush administration lawyers, were not quite as prepared as they wanted to be. This left Democrats fuming and Republicans indifferent.  This inspired Sen. Cory Booker (D-NJ) to release "committee confidential" emails from Judge Kavanaugh regarding hid views on racial diversity during a fraught moment during last Thursday's hearing (; Sept. 6, 2018; date accessed Sept. 12, 2018).  To fill-in the blanks, Senate Democrats submitted 1,278 written questions, the most of any SCOTUS nomineeto Judge Kavanaugh, something the Republicans say is a stall tactic (; Sept. 12, 2018). The questions are intended to serve as clarification and follow-ups to questions he answered in public. (Ibid)

Where do things stand?  The Senate Judiciary Committee has scheduled a vote on whether to forward his nomination to the full Senate for final confirmation tomorrow (no; Sept. 10, 2018; date accessed Sept. 12, 2018). Senate Majority Leader Mitch McConnell seems confident that Judge Brett Kavanaugh will take his seat on the Supreme Court in October. The numbers favor--barely--Senate Republicans. In order to win confirmation, Judge Kavanaugh would need a yes vote from every Republican, including Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) neither of whom have publicly declared their intentions. Some red state Democrats may vote in favor of Judge Kavanaugh, though none have said anything. 

Stay tuned

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