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.

Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More
World

Ilhan Omar’s Big Lie

In a viral exchange at a congressional hearing last week, the new congresswoman from Minnesota, Ilhan Omar, who is quickly establishing herself as the most reprehensible member of the House Democratic freshman class despite stiff competition, launched into Elliott Abrams. She accused the former Reagan official ... Read More
Politics & Policy

The Strange Paradoxes of Our Age

Modern prophets often say one thing and do another. Worse, they often advocate in the abstract as a way of justifying their doing the opposite in the concrete. The result is that contemporary culture abounds with the inexplicable — mostly because modern progressivism makes all sorts of race, class, and ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More
U.S.

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More
U.S.

Questions for Those Who Believed Jussie Smollett

The “we reported the Jussie Smollett case responsibly” contention has been blasted to smithereens. Twitter accounts and headlines in the Washington Post, the New York Times, and the Los Angeles Times reported as fact Jussie Smollett’s wildly implausible allegations, and many other journalists did so as ... Read More
Elections

One Last Grift for Bernie Sanders

Bernie Sanders, the antique Brooklyn socialist who represents Vermont in the Senate, is not quite ready to retire to his lakeside dacha and so once again is running for the presidential nomination of a party to which he does not belong with an agenda about which he cannot be quite entirely ... Read More