Dahlia Lithwick believes that President Trump made a political mistake in nominating Judge Brett Kavanaugh to the Supreme Court. I think a better political choice was available, too, but this nomination is going about as well for the Republicans as anyone could reasonably expect.
Her first argument for her thesis is that because Trump “chose the judge who’s most likely to endorse the Trumpian view that [the Mueller investigation] is all a massive witch hunt,” he took a “gamble that Kavanaugh’s selection makes him look guilty. Pro tip: It makes him look guilty.” Nobody has presented a shred of evidence that Kavanaugh is at all likely to “endorse” the witch-hunt view. Even without Lithwick’s hyperbole, though, the argument is mistaken. More careful analysts, who are not fans of the president in general or his stance toward Mueller specifically, have already explained that Judge Kavanaugh’s published views imply no hostility to the investigation. Trump’s selection of Kavanaugh therefore makes him look guilty only to those who are predisposed to believe it anyway.
The second argument is that complying with document requests involving Kavanaugh “will consume huge amounts of time.” Raise your hand if you think that Senate Republicans are going to allow fishing expeditions to push confirmation past the election. And based on the way the debate over Kavanaugh has been going so far, I’d bet Republicans would be happy to spend much of the time between now and then on the nomination.
Third, Lithwick says that because of Kavanaugh’s alleged views about investigations of the president, the nomination “will ensure (as if it needed ensuring) that the Mueller probe stays in the headlines in the runup to the midterm elections.” The parenthetical concession destroys the force of the point. The probe was going to be in the news regardless.
Circling back to Kavanaugh’s alleged “affinity for broad constructions of executive power,” Lithwick cites an example that is meant, I gather, to appall us: “Kavanaugh wrote in dissent that if a president takes issue with an existing law, he can simply declare it unconstitutional and refuse to enforce it. ‘Under the Constitution,’ he wrote, ‘the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.’”
This claim is practically a truism — which is how Walter Dellinger presented it when he made it while working for President Clinton. He wrote in a memo, “Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.” Both judicial opinions and executive practice backed up this point. Perhaps Lithwick and Dellinger can discuss the point the next time they have one of their colloquies for Slate.
In her very next paragraph, Lithwick complains that Kavanaugh wants courts to defer less to executive-branch agencies — which does not seem to square with her earlier insistence that he has made a fetish of executive power. Not pausing over this seeming problem, she strides on to the next sentence: “In short, to the extent that the president looks like he went on a shopping spree for the justice who’s inclined to put his legal imprimatur on the proposition that Trump gets what Trump wants, he seems to have found what he needed.”
The article leaves me unpersuaded that the Kavanaugh nomination is in any significant way a political problem for Republicans — and more persuaded than I was before that it has tied his opponents in knots.