Reactions to the nomination of Judge Brett Kavanaugh (various)

Herewith a selective recap of News Journal news & editorial coverage from July 10 to date.

1. What happens if Mueller’s probe goes to high court? Barbara McQuade (professor, U of Michigan Law School), 7/10//18. Written before the nomination was announced, this column suggests that the Mueller probe may result in legal challenges “that may come before the Supreme Court in the near future.” For example: Can a sitting president be charged in an indictment, or is impeachment the only avenue available? Must a sitting president honor a grand jury subpoena for his testimony? And does executive power make it “legally impossible for a president to obstruct justice?” Since it seems unlikely that a nominee would commit to recusal in advance, “what’s a democracy to do?” Ideally, the nomination could be held up until the Mueller probe was completed. Or failing that, members of the Senate “must thoroughly study the nominee’s views on executive privilege, executive power and the rule of law.”

2. Don’t vote on SCOTUS until after election, Karen Stanley (Bear), 7/10/18 – In another comment written before the nominee was announced, Ms. Stanley argues that “it’s impossible to overstate the consequences of Justice Anthony Kennedy’s retirement from the Supreme Court – replacement will most likely serve for decades and make decisions with lasting consequences – fundamental rights of all Americans are at stake – nominee will be antithetical to women’s rights as he/she must meet litmus test of being willing to overrule Roe v. Wade – Sen. Mitch McConnell will try to push the confirmation through quickly on a party line vote – having refused to act on the nomination of Judge Merrick Garland, the president and Sen. McConnell have no right to take action that would “change the balance of our nation’s highest court for at least a generation just months before a national election that could change the course of our nation.” Senator Carper is right, the nomination should not be confirmed “until we the people have a chance to be heard in November.”

3. I clerked for Kavanaugh, he’s a great judge and person, Caroline Van Zile, 7/12/18 – Ms. Van Zile also clerked for Justice Kennedy. She is a registered Democrat and says that she and Judge Kavanaugh didn’t always agree on politics. However, she knew him as a jurist and a person, and has nothing but praise for him. Brilliant – independent – fair-minded – down to earth – boss – mentor – friend (he even officiated at her wedding). And she also notes that many of the people who will be opining on the judge’s qualifications in coming days “have never met him.” In sum, “Judge Kavanaugh is incredibly qualified to be an associate justice of the Supreme Court. *** Americans should be proud to have someone with his independence, integrity and character on the bench.”

4. Roe v. Wade is about freedom. Don’t let it be revoked, Tea Francesca Price (Pullham fellow for the Arizona Republic), 7/12/18. - Justice Kennedy was a “swing vote,” and while he “helped develop the undue-burden standard that allows states latitude in regulating abortion,” he only “played in the gray area when it came to cases dealing with reproductive rights” and wasn’t about to make any fundamental changes. Roe v. Wade may not be on the chopping block now, but “Kennedy’s departure opens the door to revisit this contentious decisions and carve away at its legal protections for women.” And let’s not forget that in the final presidential debate of the 2016 campaign then-candidate Donald Trump “said he would appoint pro-life justices.” Let’s hope that this won’t prove prophetic.

5. Trump’s pick is also about healthcare, Dana Milbank, 7/12/18 – How ironic that the White House has announced that the “Sherpa” for getting the nominee confirmed will be former Republican Senator Jon Kyl, a big-time lobbyist for the pharmaceutical industry who famously mocked the Affordable Care Act’s requirement that health[care] insurance cover maternal health by saying “I don’t need maternity care.” Senate Democrats may not be able to block the nomination or delay confirmation, but here’s their chance to “return attention to the healthcare fight before the mid-term elections.” And Kavanaugh himself is a “polarizing figure in the healthcare debate, based – for example – on his dissent in a 2011 case in which others on his judicial panel upheld the constitutionality of the Affordable Care Act.

6. SCOTUS fight harrowing for moderate Dems, Marc Thiessen, 7/13/18 – Judge Kavanaugh is a great nominee: impeccable credentials, strong intellect and sterling character. GOP senators should stay united and confirm him, in which case Sens. Joe Manchin, Heidi Heitkamp and Joe Donnelly will be able to please their state electorates by voting in the affirmative (as they did for the Gorsuch nomination). Otherwise, however, the Democratic leadership (e.g., Senator Dick Durbin on “Meet the Press”) seems quite prepared to “throw them under the bus.” In effect, “Durbin just told these senators to commit political suicide.”

7. Progressives take fight to Carper on Facebook, Scott Goss, 7/15/18 - Senator Carper has forthrightly stated his opposition to Judge Kavanaugh’s nomination. He has called the nominee’s record “extreme” and “deeply concerning.” And on July 11, he expressed regrets for backing Kavanaugh's appellate court nomination 12 years ago. Healthcare – the environment – other issues. Not good enough for Carper's primary opponent, Kerri Harris, and the Working Families Party (NY-based coalition of unions and progressive activists) that plans to start running Facebook ads to drive in the point that Senator Carper has supposedly been weak on blocking Republican nominees to the Supreme Court. Among the punchlines: “Tom Carper caved on the court” and “Tom Carper created the Roberts Court.” Although Senator Carper has never lost a Delaware election, he’s 71 now and not necessarily “unstoppable.”

Comment: The bottom line here is that the Supreme Court confirmation process has been politicized to an unfortunate degree.
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