Published in Cognoscenti on July 19, 2018
Over the last two weeks, we have witnessed President Trump act on to two of his most important constitutional responsibilities. He nominated Brett Kavanaugh to the Supreme Court, subject to the “advice and consent” of the Senate. A day later, Trump jetted to Europe to act as head of state — first in a summit with NATO leaders, then in meetings with British Prime Minister Theresa May, and finally in an obsequious chat with Vladimir Putin.
The nomination was considered a smashing success, and the trip a profound embarrassment. While it may be tempting to put each exercise of presidential power into its own box, that would be a mistake. They are connected, and one cannot understand one without the other.
In nominating Kavanaugh, Trump selected an exquisitely prepared, exquisitely credentialed and exquisitely charming successor to Justice Kennedy. The conservative establishment crowed — Kavanaugh is a home run for them on every front, from abortion to immigration to gun rights. The nomination was lauded even by some liberal members of the legal elite. The most prominent paean came from Yale Professor Akil Amar, who said that Kavanaugh’s nomination was “Trump’s finest hour.” Supreme Court appointments are among the spoils of electoral victory, he said, and liberals could not expect anyone better than Kavanaugh from a Republican president.
Perhaps Amar would be correct in a normal moment. But this is not a normal moment, and Trump’s trip to Europe illustrates why.
The trip would have been cringe-worthy if Trump had merely (!) called the European Union a “foe,” questioned the government of our closest ally, and/or oafishly walked in front of a 90-year-old woman who happened to be Queen.
But what happened was worse, embodying perhaps the most outrageous abdication of national interests by a sitting president in our history. Trump’s sycophancy toward Putin, matched with his refusal to credit the reports of his own intelligence and justice officials about Russian election meddling, was greeted with shock and disgust across the political spectrum. Even some Republicans in Congress — John McCain, Jeff Flake, Paul Ryan — spoke outagainst the president.
A president who promised to Make America Great Again instead Threw America Under the Bus.
Whether it is because of Trump’s pathological narcissism (any investigation of Russia chips away at the legitimacy of his victory) or because Putin in fact has something on Trump (is there, after all, a pee tape?), it certainly looks likehe is acting as an agent of our most prominent foreign adversary. The press conference may have been treason in real time.
How does that relate to the Supreme Court appointment?
We now know, based on the indictments and convictions already secured by Robert Mueller’s team, that Donald Trump won the presidency with the help of a vast pattern of espionage and hacking on the part of Russia. Even given what is public so far — and we will probably learn more soon — the perversion of democracy in such a closely contested election could very well have made a difference in the outcome. (Trump’s margin in Pennsylvania, Michigan and Wisconsin totaled less than 80,000 votes.) We do not know yet what Trump and his minion did or knew. But he certainly looks defensive, doesn’t he?
If he won the presidency with the help of a foreign power, and he was in on it, his entire presidency is illegitimate. If he is illegitimate, so are his Supreme Court appointments. Let me say it this way: We can all agree, can’t we, that Supreme Court justices should not be appointed by an agent of a foreign adversary?
At best — at best — we are not sure whether our president is a modern Manchurian candidate who actually won. And isn’t this something we should be sure about before giving Trump the power to nominate someone to the Supreme Court for life?
The fact that the president’s campaign is under investigation is also relevant to Kavanaugh’s nomination. Of the various candidates on Trump’s short list, Kavanaugh is the most enamored with presidential power, having written that the president should be protected from criminal investigations while in office. In this historic moment, when it is possible that the Supreme Court will be asked to decide whether a sitting president can be subpoenaed or criminally indicted, do you think Kavanaugh’s fawning for presidential power caught Trump’s attention? You betcha.
In fact, Kavanaugh’s nomination is itself circumstantial evidence that Trump is worried about impeachment and possible criminal exposure. Shouldn’t we wait to confirm a potential justice whose very nomination could be construed as evidence of Trump’s guilt? Can’t we agree that presidents under such a cloud of suspicion should not be able to appoint a justice who is likely to be asked to weigh in on whether presidents can be held accountable for such treachery?
These are questions that suggest only one response: The Senate should wait to vote on Kavanaugh until we can be sure Trump’s entire presidency is not illegitimate because of espionage, conspiracy, collusion and — yes — treason.
But do not hold your breath for Kavanaugh’s vote to be delayed. The reason suggests an even darker link between the nomination and the Russian investigation: The GOP wants Kavanaugh so much they are willing to ignore Trump’s possible perfidy.
We may hear sturm and drang from GOP lawmakers in the coming days. They do not want to be seen as Russian sympathizers. If they wanted to act out of patriotism and principle, some of them could say “and for these reasons we will now caucus with the Democrats.” That would be a game changer. With McCain’s absence, the GOP has a one-vote majority in the Senate. If a sole Republican senator chose to switch parties, committee chairs would toggle to the Democrats. Chuck Schumer would be majority leader. Trump would face a counterbalancing power in Congress, and Senate committees — armed with subpoena power — could begin to investigate the depths of our national disgrace. The work of repairing the damage done by Russian interference could begin in earnest.
But Kavanaugh would likely be the price of such a switch, and that's a bridge too far. They will allow the possibility that Trump conspired with a foreign power, as long as they can gain a court willing to obstruct women’s right to have abortions, keep immigrants in cages, strike down environmental regulations, outlaw affirmative action, and undermine LGBT rights for the next 30 years.
When the pudding shows its proof, the GOP will let Trump bow to Putin and embarrass our allies and intelligence agencies. They’d rather have Kavanaugh.