President Trump’s nominee for the Supreme Court started his long trek along the approval process on Tuesday, with the beginning of the Senate Judiciary Committee hearing. However, the controversy behind Brett Kavanagh’s nomination came much earlier.
Questions about Trump’s ability to nominate a justice while heading down the path of possible federal investigation as well as the withholding of thousands of documents from Kavanaugh’s past have sparked severe protest from opponents. To add fuel to the fire, an accusation of Kavanaugh’s involvement with sexual abuse during his teenage years has come to light but seems it may be ignored.
It’s easy to form an opinion on whether or not you believe Kavanaugh should be appointed. It’s harder, however, to analyze whether or not this process has been followed to the letter of the law. Proper investigations have not been conducted into Kavanaugh’s past. There is not enough information for our country and its elected leaders to make an educated decision that will appoint a lifelong justice.
The job description for a Supreme Court Justice isn’t a light one. Justices work in annual terms of October through June every year and receive between 7,000 and 8,000 applications for hearings every year.
Of the cases they decide to hear, the decisions they make set precedents for the future of our nation. Each justice serves lifelong, tenured terms, which can sway the outcomes of important cases for generations. Griswold v. Connecticut in 1965 set the precedent for the right of unmarried people to use contraception and opened doors for individuals’ rights to privacy. Brown v. Board of Education in 1954 set the precedent of racial integration in public transportation and schools and pushed the country further down the road towards racial equality. West Coast Hotel Co. v. Parrish in 1937 set the precedent of upholding minimum wage legislation and ensuring that employees don’t have to work for 35 cents an hour if an employer wants to pay that little. Cases heard by the Supreme Court set precedents that affect citizens for years to come, and those citizens deserve a full, just and thorough investigation of any justice nominee.
These cases serve as examples of country-changing decisions, to highlight how the nomination process of a Supreme Court Justice should be conducted as lawfully and justly as possible. To this end, several investigations must occur.
The first investigation: the confidential documents. Before the trial began, over 140,000 documents from Kavanaugh’s time in the George W. Bush White House were deemed confidential and were unavailable to be reviewed, seen or discussed by the public or members of the Senate outside of the Senate Judiciary Committee. On the eve of the first day of the hearing, 42,000 of those documents were released. But with the hearing starting the next day, no senator was given ample time to analyze the documents before questioning. Democratic senators repeatedly asked for the trial to be adjourned for proper time to analyze the documents but were denied without fail. The Georgetown Law Library lays out a comprehensive nomination and confirmation process online, which states step three of the nomination process to include “a month to collect and receive all necessary records, from the FBI and other sources, about the nominee.” This did not happen. These documents, released late, contained Kavanaugh’s thoughts on abortion and affirmative action—two issues that should not be taken lightly.
The second investigation: the sexual accusations. This past Thursday brought an accusation against Kavanaugh to the forefront of the hearing. Kavanaugh was accused of sexually assaulting a fellow high school classmate more than 30 years ago. The woman—who originally wished to remain anonymous but has since come forward to identify herself as Palo Alto University professor Christine Blasey Ford—submitted a confidential letter to the ranking Democrat on the Judiciary Committee, Sen. Dianne Feinstein back in July. She stated that when Kavanaugh was a high school student, he attended a party where he and his friend trapped her in a bedroom, held her down and forced himself upon her by groping her, pushing his body against hers, attempting to remove her clothes and bathing suit and covering her mouth when she attempted to scream.
Since this accusation, Kavanaugh has released a statement stating: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.” Since then, it seems that the only attention this claim is getting is in headline news. The New York Times email service “The Daily Brief,” summarized the incident on Sunday. However, as disturbing as the accusation stands alone, a single sentence in the summary stood out amongst the rest: “…the accusations seem unlikely to derail his confirmation.” Sexual abuse is never to be glazed over. The statement from Ford asserts that other individuals were present for Kavanaugh’s actions, and therefore an investigation should be launched to clear this judicial nominee of his alleged actions or expel him from contention.
The third investigation: President Trump’s ability to appoint a justice nominee while being under federal investigation. The process of Mueller’s investigation has been underway since May 2017. Mueller’s accusations against Trump’s administration officials, the violation of campaign finance laws and the agreement from Cohen and Manafort to cooperate with Mueller for charges that may be yet to come suggest that Trump’s actions before and while acting as President could lead to a possible impeachment, and to take a step further, a less likely but still possible, move for criminal indictment. These consequences depend on the outcomes of Mueller’s investigation, which still yet concludes, as Mueller continues to dig deeper into more possible charges, such as obstruction of justice.
This raises the question of whether it is morally just for a president under investigation to nominate a Supreme Court Justice. A further look to back when President Trump first released a list of possible justice nominees reveals an unnerving change: the first list, released by President Trump before he was elected for office, contained the names of the individuals he would consider nominating if elected. He then said, “This list is definitive, and I will choose only from it in picking future Justices…” However, after Mueller was appointed Special Counsel, the “definitive” list released by President Trump suddenly had new names not previously stated. This included Kavanaugh. Further, when it was time for President Trump to appoint a new nominee, Kavanaugh was chosen as a front runner, even though Senate Majority Leader Mitch McConnell objected to this decision. Sen. McConnell stated concerns that Kavanaugh “would pose difficulties for his confirmation” because of his paper trail. Despite these objections—made by the leader of the Senate responsible for approving him—Kavanaugh was still chosen.
Connections between the Mueller investigation and Kavanaugh’s wide and generous interpretations of presidential powers when it comes to investigations of presidents arise. Throughout his confirmation trial, Kavanaugh has avoided answering questions about whether or not a president can pardon himself or ignore a subpoena. These allegations, while hypothetical, question the right for a president to appoint a justice who might eventually be involved in the decision of a presidential indictment.
The American people deserve to have these issues investigated to the highest degree. Leaving questions unanswered and the past work of a nominee unclear makes the process of judicial nomination unjust and unfair to the citizens for whom Kavanaugh could potentially make nation changing decisions.
It is the time for action. In presidential elections, it’s easy to recognize the importance of campaigning, voting and remaining politically active. On the other hand, with Supreme Court nominations, it’s easy to feel powerless as we watch the trials unfold through the screens of TVs and computers. This is not the case. Presidential elections are important because he or she will make decisions and pass legislation that will affect our country for a limited time of one or two terms. However, Supreme Court nominations are important because of the precedents their decisions will set.
Presidential elections and their campaigns last up to six months, or longer if you count the primaries. Supreme Court nominations usually only last between one or two months. This means we need to act decisively to make our voices heard before this process comes to a close.
Citizens of Maine, call, text, email, tweet to Sen. Susan Collins. Folks from away, do the same for your senators. Urge them, at the least, to make sure the nomination process of Kavanaugh includes full, in depth investigations on all these issues before he is approved and serves our country for the rest of his working life. Our country deserves a justice with a clear history of making decisions for his country that will serve its best interest.