Bench Memos

Law & the Courts

History Gives No Reason to Delay Kavanaugh Confirmation

Democrats are desperately grasping for ways to delay the confirmation of Supreme Court nominee Brett Kavanaugh.  One of their current lines of argument—spearheaded by Senator Cory Booker and others—is that the confirmation of the next Supreme Court justice should be delayed until Special Counsel Robert Mueller concludes his investigation.   As a recent New York Times op-ed by a law professor put it, “People under the cloud of investigation do not get to pick the judges who may preside over their cases.”

The problem for Democrats in making this argument, however, is that it completely ignores history.  The Clinton Administration, during which scores of federal judges were confirmed notwithstanding the continuing Whitewater and Monica Lewinsky investigations, provides by itself an ample rebuttal.  The Whitewater investigation alone spanned over six years.

As Jonathan Turley wrote in The Hill last week, “Nothing in the Constitution or history supports the claim that any ‘cloud of investigation’ over a president is a barrier to the confirmation of a nominee.  Indeed, not a single such objection was voiced when President Clinton appointed Stephen Breyer on April 6, 1994, to replace Associate Justice Harry Blackmun, three months after the appointment of the Whitewater independent counsel.  During the summer Breyer was confirmed, Congress subpoenaed 29 Clinton administration officials in its own investigation, and the Clinton legal team ramped up for challenges.”

Turley further notes, “by this same logic, presidents ‘under a cloud’ should be denied the appointment of judges on lower courts as well as Supreme Court justices.”  But again, during the Clinton administration investigations, confirmations steadily continued.  And confirmations continued even after formal impeachment proceedings began.  During the two months immediately following Special Counsel Ken Starr’s release of the Starr Report to Congress and his referral of the matter to the House Judiciary Committee, 25 federal judges (three circuit judges and 22 district judges) were confirmed by the Senate.

A majority of current justices—including Anthony Kennedy, Stephen Breyer, John Roberts, Samuel Alito, and Neil Gorsuch—were nominated by a president whose White House was under investigation at the time. The claim that the Kavanaugh hearing cannot proceed because of the ongoing Mueller investigation is baseless, and should be recognized as the pathetic stall tactic that it is.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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