Kavanaugh, Trump, & the future of American Democracy

On Monday, October 1, President Trump issued orders to the FBI, calling for an official investigation into the accusations of sexual assault against Brett Kavanaugh, the administration’s nomination to the Supreme Court to fill the seat left by Justice Kennedy when he abruptly retired in June of this year.  While limiting the duration to one week, the president put no direct restraint as to who the Bureau could question. And indeed, the FBI somehow managed to complete its investigation Friday Oct 5th without interviewing Kavanaugh, Kavanaugh’s accuser Dr. Ford, or multiple classmates of Kavanaugh’s and Ford’s. On Saturday Oct 6th, the Senate voted 50-48 to confirm Brett Kavanaugh to the position of associate Justice of the Supreme Court of the United States.

..the FBI somehow managed to complete its investigation Friday Oct 5th without interviewing Kavanaugh, Kavanaugh’s accuser Dr. Ford, or multiple classmates of Kavanaugh’s and Ford’s.

In the preceding weeks the various waves of media have been saturated with analysis and opinion, running the gamut from full-on conspiracy theory to thorough, thoughtful considerations of the past history, current situation, and future ramifications.  Among them, a case due to come before the Supreme Court this month garnered some attention: Gamble vs. the US brings to legal question the notion of separate sovereignty, a policy that allows for separate prosecution on state and federal levels, and effectively is an exemption to the 5th amendment of the US Constitution.  Currently, the 5th Amendment provides protection against being charged multiple times for the same crime under the Double Jeopardy Clause; however, it is argued that it does not protect against prosecution from another sovereign legal body, i.e. state vs. federal. Gamble vs. the US challenges the notion of separate sovereignty in that example and seeks to overturn a federal prosecution of a gun crime for which Gamble was charged and served a year in state prison already.  Both Justices Ginsburg and Thomas have expressed opinions that it’s a subject worth examining in detail, and the ACLU, the Cato Institute, and the Constitutional Accountability Center have filed a joint letter to the court, known as an amicus brief, arguing that there is no textual support in the Constitution for such the exemption that Gamble vs. the US is challenging.

And now, under the Trump administration, overruling such an exemption would open the possibility for the President to federally pardon a multitude of parties facing indictments from special counsel Robert Mueller’s investigation into Russian involvement in the 2016 US presidential election, all of whom would then be safe from any further prosecution on a state level.  Typical supporters of states’ rights and voices on the right side of the aisle have also recently come down in favor of overruling the clause as well in recent days, with Republican Senator Orrin Hatch filing his own amicus brief to the Court while claiming zero influence from recent political happenings.

President Trump responded to questions about Kavanaugh and Ford by saying, ‘You know what? I’m not gonna get into it with you because we won. It doesn’t matter. We won.’

It is the timing of this case that have some wondering if it is in fact a primary motivator for the GOP’s aggressive push to confirm Kavanaugh in the face of allegations of sexual misconduct.  While Senate Majority Leader Mitch McConnell has claimed that leaving a seat open for too long would be detrimental to the judicial proceedings, that did not prevent him from opposing for multiple months the nomination of Judge Merrick Garland by President Obama in the last year of his presidency, claiming that it was improper for a president to be able to fill a seat so late in his term, a claim which has exactly zero legal backing or precedent.  McConnell is in fact quoted as saying at the time, “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy,’” which bears some element of game playing, of winning vs. losing, a sense of points-keeping, as well as a display of political dominance for its own sake.  In a very recent interview with Lesley Stahl on 60 Minutes, President Trump responded to questions about Kavanaugh and Ford by saying, “You know what? I’m not gonna get into it with you because we won. It doesn’t matter. We won.” Along with whatever additional, long-term legal benefits come with having a friend and ally on what should be an impartial position of power, there is definitely an aura of smug victory as well.

But even setting aside that legal wrangling and the subsequent presidential pardons that may or may not follow it, the Supreme Court has shifted firmly to the right with the confirmation of its newest member.  His predecessor, Justice Kennedy, was frequently the critical swing vote on partisan issues; he upheld the right to gay marriage and abortion, as well as the legal rights of gun owners and protections given under the guise of religious freedom.  Kavanaugh’s judicial history is public information: the judge recently issued a formal disagreement against a majority decision allowing a 17 year old access to an abortion, and overall looks to favor creating greater strictures on abortion. He has stated that he believes net neutrality is a violation of the First amendment; he supports the government’s collection of metadata produced by its citizens.  Suffice it to say, he is unlikely to find the same balance on that razor edge that Kennedy did, and the President and Republican majority congress now have a partisan ally in the third branch of government, regardless of whatever claims of nonpartisanship Kavanaugh has made to the Senate. Indeed, the contrast between the calm, measured speech affirming his ability to remain objective and impartial and the emotionally charged accusations he made earlier in the week against the Democrats he says are seeking revenge on behalf of the Clinton’s is both striking and notable.

And now, in only the past week or so, Chief Justice Roberts has brought the existence of judicial misconduct complaints against Kavanaugh to public light.  These fifteen individual documents, largely regarding issues of temperament and the veracity of statements made by Kavanaugh during his Senatorial confirmation hearing, have been sent by the Chief Justice to the 10th Circuit Court in Colorado for review and consideration.  Whether or not the 10th Circuit Court will do anything with these complaints or if they will decide that judgement against a Supreme Court Justice is beyond their jurisdiction will simply be a matter of waiting; either way, for a Supreme Court nominee to be confirmed under the level of professional criticism that Kavanaugh faces is unprecedented.

Of perhaps even greater concern than Kavanaugh’s general temperament, his potential for partisanship, the allegations of his sexual misconduct, or the possibility that he lied under oath during his Senate Judiciary hearing, was his skirting of a question posed to him first by Sen. Feinstein and then more directly by Sen. Leahy, concerning the legal ability of President Trump to pardon himself, which is only barely a hypothetical situation given Mueller’s investigation into his administration, as well as the New York Time’s recent expose which alleges millions of dollars worth of tax fraud perpetrated by Trump’s parents, and regarding the amount of money their children were able to inherit.

…it’s possible that this was one of the final linchpins holding our democracy together, and with its removal the safeguards we take for granted guaranteeing our multitude of freedoms and protections may not be as robust as we thought.

The government was designed with checks and balances; the three branches were intended to be able to put restrictions on each other, preventing gross abuses of power on the part of the people entrusted with leadership.  With now all three leaning heavily right-ward, the guardrails are looking a little loose and those checks and balances seem less secure than they used to. Taking a few steps back and venturing a look further down the road, it doesn’t seem impossible to imagine a Republican majority congress, Senate, and Supreme Court removing term limits from the presidency, granting significantly expanded executive powers, legally dismantling the systems that were supposed to prevent an authoritarian coup. In short, it’s possible that this was one of the final linchpins holding our democracy together, and with its removal the safeguards we take for granted guaranteeing our multitude of freedoms and protections may not be as robust as we thought.

In hindsight, critical moments in history seem so obvious, so blatant–Hitler’s rise to power in 1930’s Germany, for example…

In hindsight, critical moments in history seem so obvious, so blatant–Hitler’s rise to power in 1930’s Germany, for example–but in the moment, it’s harder to imagine such dire outcomes.  But remember this time; the confirmation marks what very well may be a turning point in our history as a nation and, depending on how the votes go in November, it may not end well.