I don’t normally favor pundits practicing the art of prophecy. Their track record is about as reliable as that of racetrack touts, but I’m making an exception. I think there’s a better than average chance that Trump will name Judge Brett H. Kavanaugh to the Supreme Court on Monday. If not, someone who shares his views.
On what? Roe v. Wade, affirmative action, gerrymandering, same sex marriage? No, though that would obviously be nice from the Trumpian point of view. But in this case, about something a lot more important to Trump than judicial philosophy. That is, his own self-preservation. Call it not just executive privilege, but executive supremacy.
Kavanaugh is the author of a 2009 article for the Minnesota Law Review that would be a sight for sore eyes if Trump ever read anything. No doubt one of his legal elves has brought the jist to his attention. Kavanaugh isn’t on the short list by accident.
Though Kavanaugh was a deputy to Independent Counsel Ken Starr’s investigation of Bill Clinton that took four years and whose report he helped draft, he now argues with a straight face that a president should not have to face “time-consuming and distracting” investigations or lawsuits because they “ill serve the public interest, especially in times of financial or national security crisis.”
Does Trump now share the view of many Americans that he is a financial and national security crisis (tariff, deficit, Putin collusion, treaty abrogation, alliance busting)? Probably not, but he’s sure to share Kavanaugh’s sweeping claim that he should be protected from everything from criminal investigation and civil lawsuits to mere questioning by a prosecutor or defense attorney.
In short, if you buy Kavanaugh’s argument, Trump is home free, until he leaves office. The only recourse no matter what the Mueller investigation finds is impeachment. So Trump has got a lot of reasons to put Kavanaugh on the court.
Even if he doesn’t, it would be a dimwitted candidate for the high court who wouldn’t get the message. Surely anyone Trump chooses had better share Kavanaugh’s views and be ready to contribute to a 5-4 majority to keep the executive free of pesky indictment, prosecution or conviction of high (or low) crimes and misdemeanors, so help them Trump. If not a get out of jail free card, he’d surely be happy to accept a defer jail and stay free card. Four More Years. Four More Years.
One slight roadblock in Kavanaugh’s rise to Supremacy, however, comes from conservative extremists, if that’s not redundant. They pronounce him insufficiently reactionary. His crimes include working for a famously compassionate globalist, George W. Bush. There’s also his rulings from the bench. It isn’t that opinions they cite weren’t right, but that they weren’t stridently far-right enough to satisfy the likes of pedophile-enabling, McCarthyite, former wrestling coach Rep. Jim Jordan and fellow travelers in the crackpot media.
Of course, talking trash about Kavanaugh fails to take into account that judges who talk trash, the way Freedom Caucus members and talk radio ranters do, can’t get other judges to sign on to their opinions, and that if they do the extremism of their opinions may prevent them from surviving on appeal. But red meat extremists often favor sound and fury over actual results.