Showdown on a Trump Subpoena Could Overshadow Brett Kavanaugh’s Confirmation

Judge Brett M. Kavanaugh has questioned the wisdom of forcing sitting presidents to answer questions from prosecutors.


Comments: 176

  1. Is there any information that Brett Kavanaugh was a source of leaks during the Starr investigation? That is something I think we should know.

  2. The article is a good analysis of his position and should read before dismissing the guy out-of-hand. He will get confirmed, and the Democrats could do themselves huge favour by showing a very much less partisan approach; ask him the right questions, politely, and let him answer - then make a reasoned decision. Don't jump around hollering based on rumours and assumptions, and just "oppose everything from Trump".

  3. So you're saying than that Democrats should be reproached when they behave like republicans, but of course such behavior is only called partisan when Democrats do it? Remember that it was McConnell who went against the letter of our constitution to deny a hearing to the very qualified nominee of a twice elected (by a majority of voters both times) president. That is the partisanship that has set us down this path where we now find ourselves truly divided, with no way out.

  4. Suppositions: 1) the Justice Department is conducting an investigation into Russian interference in a presidential election; that investigation includes issues related to whether persons around a now sitting president had colluded with Russia, and issues related to whether the sitting president had sought to obstruct justice; 2) the sitting president has said and done things that cause a sizeable portion of the electorate to question his motives and integrity with regard to national interests of the country.

    Question: in such a circumstance regarding such high stakes - higher I would argue than those surrounding Nixon and Clinton - is it reasonable to believe that the sitting president should not be disturbed in his daily duties in order to answer questions under oath?

    The answer must be that it is not reasonable and the sitting president must be disturbed and obliged to answer the questions under oath. This is not some deep, imponderable philosophical issue; it's straight-forward common sense.

  5. Remember Bush at the 9/11 “investigation” side by side with D. Cheney did not testify under oath. Some proceedings were interrupted by public observers demanding that people be sworn in and testify under oath! Remember?

  6. I think you phrased and asked a good question here.

    One item for consideration is that in an investigation of a president, all of his actions are put under intense scrutiny. Case-and-point is Mueller’s investigation: Trump has not been personally regarded as having conducted criminal activity, and yet every other NYT article on the subject implies that he has. This includes discussions on each and every action he has done within office - we are constantly expressing belief in some major conspiracy.

    I’m not saying the conspiracy is wrong, but absolutely the investigation itself has diminished the effectiveness of the Trump administration (even if you doubt the effectiveness outside of the investigation).

  7. Come on people, it’s so obvious ... trump picked Kavanaugh because of the judge's view that a sitting president cannot be indicted, to wit "the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.”.
    It’s a tacit assertion that the President is therefore above the law.

  8. And trump would certainly view it as an invitation to remain in office for life...

  9. Plus, the idea that trump would do a worse job if he had to prepare to answer questions is ludicrous. How could he possibly do a worse job?

  10. NO ONE IS ABOVE THE LAW.

    If the corporate/catholic justices don't honor that it is time for some heads to roll.

  11. Kavanaugh helped investigate a president for years and it seemed right then. What's changed?

    He lied in his previous confirmation; how can he be trusted to tell the truth?

    A president should never be above the law. No matter what party.

  12. Kavanaugh helped investigate a president who had a consensual sexual relationship with an adult intern. Trump is being investigated for possible collusion with Russia and obstruction of justice. Big difference! It’s like comparing a misdemeanor to capital murder. If Kavanaugh is concerned that investigating a sitting president “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas,” then there should be no concern because Trump is already following that agenda and systematically destroying our country on a daily basis. Taking Trump’s focus off our country might just save it.

  13. What's changed is that the US has turned into an unabashed banana republic:
    docile, indifferent legislature; obsequious, destructive cabinet; delirious, sociopathic executive; agitated, misinformed populace.
    The decline & fall of the American Empire is happening before our very eyes. Lead pipes and Goths did in the Romans. We have Republicans to thank for this descent.

  14. No one should be above the law. No Justice should allow for that idea. trump must answer questions about Russian interference and possible obstruction of justice. No president should be allowed to sit in office with that cloud hanging over his head. trump should not be allowed to nominate a Justice to the highest Court while these questions go unanswered. We need to believe that our president is beholding only to us. In trump’s case that is very much in question.

  15. I am not a constitutional scholar. As president, I would never submit to any form of questioning. The pardon powers protect me and anyone I choose from prosecution. The only way for me to be removed is by Impeachment by the senate.
    I am not the president!

  16. In civil cases, which in this litigious nation can be brought by every Tom, Dick and Harriet, even for reasons of the most absurd, the President as a matter of policy should be exempted from response until after his term of office.

    For criminal charges, however, the President is not King, and those cases must be adjudicated in current time.

  17. When a judge has the view that someone/anyone is above the law, he should be dismissed!!!!

  18. Is there any law that constrains him?

    If he, as he suggested, shot someone on 5th Avenue, would questioning and a trial have to wait until after he left office? That is completely and utterly ridiculous.

  19. What is the base that Kavanaugh believes that the President is above the law? The problem with so-called judge like Kavanaugh is not how he interprets the law but how he makes the law to fit his personal desire. I bet Donald Trump got a promise from Kanavaugh that he will protect DT at all cost.

  20. The bottom line here is trump believes he is a absolute ruler who is above the law. That's why he so admires people like Putin, Kim Jong-un etc. His backers like Alan Dershowitz say the founding fathers wanted this and this is what the Constitution means are very wrong. If the supreme court should come to the same conclusion this country as we know it is over.

  21. SPLIT POSTPONABILITY OF SITTING PRESIDENT SUBPOENA

    Clearly, sitting presidents should not be distracted by minor or frivolous lawsuits.

    Clearly, sitting president SHOULD be "under the law", not "above the law" for serious suits regarding behavior impacting national security or their credibility as defenders of the Constitution.

    Not all lawsuits are the same. Not all protections of the president are absolute.

  22. The idea of a Trump nominee - two, in fact - ruling on criminal matters involving Trump is absolutely outrageous. If it happens and they vote to his benefit I will have officially (and very sadly) lost all hope for our once-great nation.

  23. The article assumes that the GOP members of the court will “test” the theory, that is, inquire into its legal underpinning and analyze it in terms of the Constution and the most basic of the founding fathers’ intentions. They won’t. Testing is what judges interested in the law do. The GOP justices are result oriented...protect the president, protect the corporations, protect the churches.

    The term “originalist” is nothing more that a smoke screen for radicle judicial activism that seeks to limit the rights of anyone with whom the GOP justices disagrees.

    There will be no testing!

  24. “The justices must understand that it would be a disaster for the court, as an institution, to divide 5-4 on the question whether Trump can ignore a subpoena, with two Trump appointees in the majority,...[T]here will be enormous pressure on the chief justice — including, in fact especially, pressure from his own sense of his place in history — to deliver a unanimous court.”

    I respectfully disagree. Chief Justice John Roberts, if one takes more than a cursory glance at the disastrous rulings that have dotted his tenure, is far less interested in presiding over a fair, impartial and just tribunal than he is in being the arm and tool of the Right.

    President George W. Bush recognized this trait in him when he nominated Judge Roberts for the Court. Cementing W's reverence for ideology on the Court was his elevation of the least senior justice--John Roberts--to the Chief Justice post upon the death of William Rehnquist.

    Justice Roberts, had he been following national events since 2016, would have seen in Donald Trump an erratic, populist ideologue whose jaw-dropping ignorance and racism were his only qualifications for the presidency.

    Any Chief Justice that would hazard the nation's heretofore central anchor to law, to "stare decisis," in deciding favorably--especially in this president's case--in any case involving testimony about a crime--or presenting evidence of such--would be tantamount to giving this president unimpeachable carte blanche to avoid any criminal proceeding.

  25. When "W" was elected with the help of his brother who was governing Florida and then SCOTUS' decision, I knew we were descending into a Banana Republic. Kavanaugh is just another banana to add to the GOP-Banana Republic.

    Vote in every election from school board to POTUS!
    Make this our darkest hour. Soon there will be no turning back.

  26. ...a burden,time consuming, a distraction.....this is the excuse to be above the law.....really ? .....and how many rounds of G has DJT played sine Jan 17 ? Block this guys confirmation.

  27. He didn't think so when he spent years trying to get Clinton impeached. So what he really means is that republican presidents are above the law.

  28. Actually, looking at what he said, he was talking about civil cases, not criminal. Not sure what he thinks about criminal cases against the President. I am not nor ever have been a Trump supporter, to the contrary. But I also think Kavanaugh should be recused if this goes to the Supremes.

  29. It is nonsense that impeachment must take place before a president can be prosecuted by the legal system.
    As Jerry Ford remarked when he was trying to have Justice Douglas impeached for marrying a much younger woman
    'An impeachable offense is what ever the House says it is".
    A corollary to this is that the House is free to ignore any presidential crime.
    The GOP has a majority in the present House.
    No matter what Trump does the House will not vote to impeach and even if impeached there will not be 67 Senate votes to convict.
    Thus there is no restraint on Trump's behavior.
    The GOP has made a corrupt bargain. Tax cuts for the rich, slash social programs and gut environmental and financial regulations in exchange for tolerating Trump's misbehavior.

    The impeachment process is very slow.
    A serious crime by a president demands much faster response.

  30. This is why the midterm elections are so critical to the future of our nation. A Democratic House will not hesitate to call a Trump crime a crime and a traitor a traitor.

  31. It was clear from the beginning of this Supreme Court publicity stunt that Kavanaugh would be the despot's choice. He was never going to pick a woman-he is, after all, a misogynist-and he was never going to pick anyone who felt he should be held accountable for his questionable actions.

    It's up to Democrats and any Republicans who have an ounce of integrity or courage to prevent Kavanaugh's confirmation. This is about what's right for our people, upholding the precious tenets of the Constitution and demanding that a clearly criminally-inclined, Putin-loving, deranged bully be brought to justice.

    Every American has a duty here and it's to prevent the utter corruption and destruction of everything we hold dear. Obstruct, litigate, demonstrate, and vote. Make your voice and your opinion heard.

  32. He will pick a woman. Barrett will replace Ginsburg. I'm guessing that will happen within a year or so.

  33. Is it Kavanaugh's opinion that the Senate, should it choose to exercise its right to impeach a president under Article II, Section 4 of The Constitution, do so without an investigation?

  34. House impeaches, Senate convicts.

  35. Take Trump's focus away from ... Twitter, watching Fox, playing golf, and his sole responsibility to himself. No way a subpoena could make him a worse president than he is.

    And no way Kavanaugh could possibly argue the law to make his case. Which only highlights these "judgments" of Kavanaugh as coming more from opinion and partisan bias than from any reading of the law. Which makes a mockery of the entire process.

    Allowing Trump to escape subpoena only serves to undermine the peoples' faith in the concept that we are a nation of law and that no one is above it.

    Trump has already impeached himself in so many ways. Of course he will impeach himself should he have to testify. The law and those who enforce the law should not exempt him from doing what any other citizen would be forced to do.

  36. His argument is that preparing for testimony would take the president's time away from "focusing on the people's business." Perhaps in the case of other presidents....for Donald Trump, this argument is ludicrous. He watches Fox news and reads his own tweets. How much time could that take?

  37. Yes, and Trump has famously ignored the advice of all the attorneys he has had for the past two years. Not prep is needed for him, he goes with his "gut", of course, that's after watching Fox news.

  38. Mr.Kavanaugh may be deeply skeptical about burdening a sitting president with a subpoena or other legal matters, but does it make a difference to him that the sitting president may be colluding with an enemy state which is trying to harm our democracy?Is our democracy more important than the occupant of the White House? These questions MUST be answered!

  39. If confirmed, Mr. Kavanaugh must recuse himself on matters relating to Mr. Trump's testimony not because he has written on the matter previously but because he was nominated by Mr. Trump, which is a clear conflict of interest.

  40. Both Gorsuch and Kavanaugh were appointed to the Court by Trump, so maybe both should recuse themselves when the Trump/Russia treason trial reaches the Court. That would leave a liberal-leaning Court in place, and everyone wins except Trump. That's how it should be.

  41. Deficits, high crimes and misdemeanors don't matter when Republicans are President.

    Welcome to America's right-wing insane asylum.

  42. ....in which we are all captive inmates.....we need to break out of the “right-wing insane asylum”...by protest and voting out this dangerous,traitorous and unpatriotic Administration.

  43. If a sitting President gets a pass and is not subject to the law of the land, then our democracy is truly just an illusion.

    While I'm sure presidents and high profile public officials are subject to actions and allegations (frivolous or otherwise) that might wait until the term ends, his or his team's potential collusion with Russia to hijack our electoral system or otherwise influence the election is at the very heart of our democracy. THAT is neither irrelevant or a 'distraction' that should get a pass.

  44. While it's clear that Judge Kavanaugh graduated from Yale Law School, they apparently never studied the Declaration of Independence where it says "We hold these truths to be self-evident, that all men are created equal".
    Kavanaugh like Trump believes that there are people that are above the law which makes him unfit to be a supreme court justice.

  45. Just to clarify, the Constitution codifies our laws, but the Declaration of Independence was a declaration of war.

  46. In a different time or era, judges who took their oath seriously and were bound by ethical standards of ethics and morality would not hesitate to pledge recusal on any case where their benefactor was before them in a case with such dire consequences. McConnell and company care nothing about these things, and the Senate Democrats must nail the man who would be on the high court down on this issue.
    He has been honed and polished by right wing groups, will adroitly give vague assurances to placate skeptics, but this should not be the assurances that satisfy opponents. The sham "originalists" interpretation of the Constitution is based on the belief that the Supreme Court can and should channel the Founding Fathers when applying justice to a controversy before them. Invoke if you will what would have been the view of this august body in Philadelphia so long ago regarding treason, perjury and money laundering? Giving a president a pass on such outrages would have been rejected then and should be now.

  47. ""And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”'

    Every time I hear this quote from Judge. Cavanaugh's writings, it makes me want to guffaw.

    To think that the prospect of an encounter between Robert Mueller and Donald Trump would meet the acid test for "undue burden" on the president is a joke. That's because Donald Trump spends more time on the job tweeting about his obsessions and grievances than reading, studying policy issues, or doing the work of an engaged president.

    But more to the point, the self-serving way he nominated Judge Kavanaugh should give everyone--not just Democrats--pause.

    Of course he would appoint a justice in favor of more executive power. I fail to understand the judge's reasoning, because it belies reality to think that if a president is under serious investigation that he's fully engaged in his presidency.

    Donald Trump is following in the footsteps of previous corrupt presidents from post-Civil War Johnson to Richard Nixon. Handing a corrupt president even more power by relieving him of obligation to follow the rule of law as demanded by a special counsel would be simply incredible.

    If confirmed, Judge Cavanaugh should promise to recuse from any criminal matter regarding the president. Period.

    Since when does a president under investigation get to pick his own judges?

  48. Judge Brett Kabanaugh may well help keep judiciary independent of meddling with the executive branch and let the president be the most powerful leader of the world for real not just name sake.

    it is up to congress then to impeach a sitting president IF the president has committed any crimes while in office. Showdown on a Trump subpoena by the special counsel should have nothing to do with Kavananaugh's confirmation unless some senators want to obstruct the confirmation for obstruction sake.

  49. The "tell" came when Judge Kavanaugh said, "No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination". Really, and how would the Judge know that; because he was told to say something to that effect - from Trump himself, no doubt. Its hogwash. If a subpoena is issued for Trump to testify and it gets contested to the Supreme Court, maybe the result will be 8-1 in favor of the President testifying, with Kavanaugh as the lone dissent.

  50. Whatever the Supreme Court decides, President Trump might simply decline to do what they say. Then it's up to the House and Senate to decide if that behavior is worthy of impeachment and removal from office. My guess is that Trump would assert that he disagrees with the Supreme Court and leave it to the legislative branch to break the tie between the co-equal executive and judicial branches. Knowing that, the Special Prosecutor is unlikely to start down a path that could result in a constitutional crisis and a potentially horrible precedent unless the November elections dramatically change the balance of power in the House and Senate.

  51. Such a display from Trump would likely earn him the opportunity to wear handcuffs again.

  52. Believing that Kavanaugh thinks the president is above the law is about as reasonable as believing that Obama was not born in the USA.

    It is simply not a serious question. The speaker will appear to be copying the most egregious of Trump's tactics.

  53. That he carried water for the disgraced Ken Starr and GW Bush is reason enough to veto his nomination.

  54. “a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”

    That opinion is why Brett Kavanaugh was nominated for the bench and why he’ll probably be the one person who will shield the president from any accountability for his involvement in foreign meddling in the 2016 campaign. This president, already protected by Congress, soon will have the Court to assure him that he is above the law.

  55. Like all of the issues of possible wrongdoing of the Trump administration and its nomination of cabinet officers and this 2 faced nominee named Kavanaugh, there is only one solution. And that is to vote for every Democrat running for any office in the land. What else can we do? Not a thing with the present R ruled Congress. We must change that. In this dire situation, the worst Democratic candidate for office is better than the best Republican candidate for office.

  56. At least some theTrump lawsuits were initiated long before he became President--unpaid contractors, molested women, etc.--and those definitely should not be overlooked simply because he was unpopularly elected in an election that may well have been rigged. And that of course raises the fundamental reason: how can democracy be sustained if a President who gained the office through corruption is given a "get out of jail" card for the duration of his Presidency?

  57. Kavanaugh should indeed recuse himself from any discussion/vote on the president appointing him, should he be confirmed. Ideally same should apply to Gorsuch as well. A president is, like us all, a citizen, and IS NOT above the law if they get involved with potentially illegal activity.

  58. Mr. Mueller needs to finalize his investigation as soon as possible so that the discussion turns to whether a president accused of obstruction, criminality, etc. has the moral or legal authority to appoint a a Supreme Court Justice.

  59. Two days ago David Cole for the ACLU pointed out Kavanaugh's writing of the Ken Starr report specifies Clinton was and presidents should be impeached for lying and obstruction of justice, and in that way Kavanaugh's positions are against Trump's.

  60. A question for the Senate Judiciary Committee to ask:

    "If a president were to, say, shoot someone on 5th Avenue, would you require him or her to comply with a resulting subpoena?"

    Don't expect an answer.

  61. Do you think Donald Trump understands that once Kavanaugh is on the Supreme Court, that his Evangelical supporters will no longer have a reason to support him? The court will have a guaranteed majority to dispose of Roe....good-bye, Donald!

  62. So exactly what is Kavanaugh saying? That a sitting President can ignore the law and do whatever they want and as long as they're not so blatant as to make their illegal actions too obvious they can get away with it because it "interferes with the job"? Ridiculous, absurd and dangerous. If this is actually true then any government official in a high office could do whatever they wanted and argue that the importance of the work they are doing precludes them from accountability. They could argue they're just following the President's example. Think of the things Kavanaugh himself could do as a SCOTUS Justice if he had a mind to. And think of the almost infinite possibilities of serious conflict of interest involving Trump as President and Trump as CEO of Trump Inc. NOBODY is above the law especially the President of the United States. Arguing that the President cannot be investigated and prosecuted is a convenient and self serving lie that sets the stage for felony. The President's power is not unlimited and the President must be held accountable to prove the strength of the rule of law. Trump is not the law and never will be. There always must be strict checks on Presidential power to avoid a situation like Russia or NK where one individual makes all the law by decree. That is not America and never will be no matter what Trump thinks. Trump is not America and never will be.

  63. Really? He thought it was fine when creepy Ken Starr went after President Bill Clinton. But Trump? Oh no, he mustn't be questioned. I wonder why.

  64. If there was ever any doubt that Kavanaugh wasn't totally biased "Judge," Now we know for sure he IS!

  65. Kavanaugh's ascension to the SCOTUS will cement a conservative/reactionary series of decisions that will affect several generations to come. The impact will be felt in all of the areas that involve corporate power, women, minorities of any kind, and voting rights for everyone.

    It's obvious that the POTUS chose him because of his decisions regarding the inability to subpoena or prosecute a sitting president, which is a clear negation of his position when working for Ken Starr during the Clinton investigation.

    This is not the America that has dominated the globe because of its leadership in upholding humanitarian values in the world. Our country's sterling reputation is being diminished on a daily basis, and the principles on which America was founded in is being turned upside down. Heaven help us!

  66. Everything this president has done is pure self-serving, no matter how badly it affects the country's citizens: from conspiring with enemies for the purpose of swinging an election to diplomacy for the purpose of furthering business interests.

    Why would we think the Supreme Court justice nominee would be any different? The sole reason for this pick is so blatantly obvious. The president now needs an insider on the court to protect him from the coming indictment.

    The president's mind is very simple: he does what benefits him without any further thought to any consequences or consideration of long-term effects.

  67. This appointment is arguably another example of obstruction. Since this Congress won't impeach, the one recourse if Mueller builds a case for conspiracy or treason would be indictment. Only tradition stands in the way, but it could and should fall in a case where the sitting president can be shown to be the agent of a foreign power. Trump knows this, and he also knows what Flynn, Papadopoulos, Manafort and Cohen know. Thus the necessity of installing a judge who, when any lower court judgment is appealed, will rule he can't be indicted.

    We already know Kavanaugh's a liar -- his lies in the course of his approval process for Court of Appeals were so egregious that senators wrote to the DOJ about him.

    The glaring tell came with Kavanaugh's bizarre claim that this was the widest search ever conducted for a SCOTUS nominee. It was the exact opposite, of course. It was always going to be Kavanaugh. This is all about neutralizing Mueller and placing Trump and his illegitimacy and corruption forever beyond our reach.

  68. The obvious questions for Kavanaugh are:
    Why was it OK to subpoena President Clinton but not OK to subpoena President Bush?
    Why was it OK for a civil lawsuit to proceed against President Clinton but that President Bush should be immune until he is out of office?

    Despite the hundreds of pages of legalese obfuscation, justifications and rationalizations it is blatantly obvious that it comes down to one thing, and one thing only:
    Tribalism.

    "Your team--Villains!!!"; "My team--Heroes!!!"

    And that is why Bret Kavanaugh should not be on the SCOTUS, because he cannot be trusted to be even slightly unbiased toward the man who nominated him, a man who DEMANDS, even illegally, total personal loyalty of government employees. (And, Judge Kavanaugh, be warned: Trump demands personal loyalty, but gives none, ever)

  69. There would be no need for this discussion if a sitting president (and her party) made certain that nothing in her life appeared criminal.

  70. Judge Kavanaugh's view has the practical result of a president being above the law---absent an impeachment vote. This is not a desirable constitutional result. I'm sure Mr. Trump would love that outcome since the pusillanimous GOP won't go near any such vote---not because he isn't committing impeachable offenses, but because they're getting too much swag for themselves. Responding to lawsuits and criminal charges will,I admit, take time away from stuffing pockets and playing golf, but slowing that process down is something for which we could all give thanks.

  71. Surely Mr Mueller must realize that the scatterbrained prevaricator Giuliani is just skipping and spinning in delay mode—while the special counsel’s office has no comment.

    Mr Mueller, remember you’re dealing with two individuals who can’t be trusted from sentence to sentence or from twit to tweet.

    As the clock continues to run, it might be best to just subpoena Trump.

  72. Dear Judge Kavanaugh,

    I enjoyed watching your fine performance the other night in which you assured the American people that you are a common, ordinary, decent American citizen, and not a part of the governing elite, with a loving wife, two loving daughters and that you look to hire as many women law clerks and blacks as you can and otherwise are a good guy.

    The problem I have is that you are being appointed to the Court by a President who lost the popular vote by more than 3 million votes and is now busily engaged in destroying the country.

    I hope you will appreciate my quandary concerning your suitability for the Court and would appreciate receiving your answers to the following five questions to give me a better idea of the type of man you are.

    I already have a pretty good idea of who you are -- so simple yes or no answers will do.

    1. Do you believe women possess the right to receive ordinary, well recognized medical treatments from their doctors without interference by the State?

    2. Do you believe that Corporations and rich people have the right to purchase as much political advertising as their money can buy?

    3. Do you believe that illegal migrants are human beings and possess the right to be treated as such?

    4. Are Presidents entitled to shoot a person down on Fifth Avenue while still remaining President?

    5. Do you believe that Judge Garland received a fair shake from the Republican Party?

    With great thanks in advance for your quick response.

    Stanton

  73. Make it simpler - as an 'originalist' , does he believe the 14th amendment should stand, and segregation should remain outlawed in the US, or should we go back to times before 14th amendment protections - where does 'originalism' begin and end?

  74. "And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.” - BM Kavanaugh

    And a President concerned about his golf handicap is almost inevitably going to do a worse job as a president.

    And a President concerned about his business interests is almost inevitably going to do a worse job as a president.

  75. And a president concerned with doing Vladimir Putin's bidding is inevitably going to do a worse job as president.

  76. This president cannot be allowed to select a SCOTUS, period.

  77. Trump already nominated Neil Gorsuch, now the holder of the first stolen Supreme Court seat. Kavanaugh's is the second stolen seat. Looking forward to electing a real President who will restore credibility to The SCOTUS by inviting both Gorsuch and Kavanaugh to honorably resign.

  78. Its all about Mueller not Roe versus Wade. Anything to neuter the investigation of his criminal and treasonous activities.

  79. Well, if the president is a criminal, what other choice do we have?

  80. Could it be that the 5 Republicans on the Court would vote to quash a subpoena of a President of the United States when the underlying issues are so fundamental: treason? rule of law/obstruction of justice? If they allow a President to run riot in the face of such charges, one can only say USA, R.I.P.

  81. I hope some senator asks Kavanaugh about his claim that his nomination was the result of the most intensive and thorough search process in the history of the Court. That, of course, is a bald faced lie. In fact, his appointment was pre approved by the Federalist Society and apparently was a done deal from the outset, per an agreement with Anthony Kennedy. That he is so willing to lie to satisfy Trump's need for superlative praise speaks volumes about his lack of character.

  82. Our system of justice demands that no man be above the law. That includes presidents.

  83. Someone in the confirmation process needs to ask Judge Kavanaugh, when he is under oath:

    Did you and President Trump discuss the Mueller investigation at any time? Did you discuss your position regarding whether the President is required to testify under subpoena or whether a sitting president may be indicted? Did President Trump state his positions to you on these issues at any time? Did you discuss these issues with anyone else in the administration or the Republican party?

    If Judge Kavanaugh answers yes to any of these questions, it will at least raise the possibility that Judge Kavanaugh is a hired gun to protect Mr. Trump. We are already in deep trouble as a country, but that would take it over the top.

  84. very articulate analysis

  85. I believe this is the primary reason Trump chose Kavanaugh as his nominee for Justice. He wants a willing sycophant on the court, who will shield him from the Mueller investigation and its consequences.

    Will no one point out how inexcusable and twisted it is that we have a sitting president- whose administration is under serious investigation, whose campaign manager sits in jail as I write this- choosing his own judge? This is unacceptable.

    We are a nation governed and bound by the rule of law and no one - no one- is above that, whether they be a sitting president, or a would-be Supreme Court Justice.

  86. Leonard Leo chose Kavanaugh; do you really think conservatives, the Koch brothers and the Heritage Foundation would let a buffoon represented by the likes of Guilliani near their true center of power?

  87. I grasped that: The immunity of a sitting President is, when asserted, based on an idea that the President’s duties should be immune to and from all disruptions. If this is true, the idea is based on another idea that a President is fully capable of his or her duties in response to the promise of Constitution, everyday, while the President is in the presidential term. Those two consecutive ideas are based on the executive power as authentic, given by a legitimate electoral process, I understand. ***** When this legitimacy becomes a subject of the investigation, the immunity should shake. Whether or not prosecutors are required to present more evidences to pursue, would seem to be an escape door (= my expression) for the court, as indicated differently in the article. It would be an expedient exit, because the meaning of which is equivalent almost to that the not-yet-obtained results from the investigation is asked to present while the investigation tries to move on. For the Justices, sitting within until a unified decision can be reached beyond the parties’ interests, seems to be its supreme duty in this case.

  88. We let our politicians steal so much power from us while we played with our smart phones and X-Boxes. Now we're not sleeping so well in the bed we made.

  89. Brett Kavanaugh's views on Executive privilege are far from a "novel historical moment." It may spell then end of our Constitutional republic. Donald Trump is in immense legal jeopardy and his choice of Judge Kavanaugh for the Supreme Court is the equivalent of jury tampering--a criminal charge his former campaign manager, Paul Manafort stands accused of in federal court. In Judge Kavanuagh Mr. Trump would put the deciding vote on the Supreme Court that, as with Richard Nixon, will ultimately as a jury in ruling whether on not the cases now before the court brought by Summer Zervos and Stormy Daniels can proceed. More ominously, Judge Kavanaugh would have the decisive vote on whether or not Mr. Trump can fire the Special Counsel. This may, as some have opined, be a "Get Out of Jail Free" card for Donald Trump, but it would it would amount to a "Lock Up America in Jail" card by putting our democracy firmly in the hands of an autocrat. The very fate of our democracy as we've known it rests in the hands of the Republican-controlled U.S. Senate that has been ominously silent and complicit in "aiding and abetting" Donald Trump's autocratic overreach.

  90. A frequent argument of the originalist/textualist crowd to which he belongs is reference to the separation of powers in the Constitution. Justice Kavanaugh even titles the Minnesota Law Review with that reference (assuming the title had his influence, not just the editors). If a Presidential subpoena case comes before the Court he's on he'll be expected to honor his own claims there any exemption is the purview of Congress, not of the Court. Please no "judicial activism" Justice Kavanaugh.

  91. This law article was written in 2009 and obviously did not have a Trump presidency in mind. Moreover, the legal position has a clear practical point of view--whether one agrees with it or not.

  92. Personal point of view is one thing but to hold a siting president above the law is wrong.

  93. The republicans have no credibility at all left, and they don't care.......they control everything, including the voting apparatus needed to insure they keep all three branches of government. They didn't even keep it a secret that that's what they were trying to do, it was there in their party platform and speeches for the last 35 years, yet anyone who pointed out that single party rule in perpetuity is not a democracy was labeled an "extremist", "fringe leftist", "radical", etc. etc. by the press and people who were too complacent, fat and happy with the status quo. We have ended up, unfortunately, with the government we deserve.

  94. So "no one is above the law" is a lie.

  95. Without rule of law can there be a civilization you can use law to change the law what Charles Houston dean of Howard university said.
    A Democracy has to be run by a rule of law called the constitution; We people means, people of America need to be law abiding; if you elect one as your president if he does not want to follow rule of law shows most Americans spurn their very constitution is the indication if you measure by the verdict on a man who never paid taxes as reported mean most do not want to pay taxes!

  96. Putin's gang of criminal kleptocrats don't believe that he should be accountable or questioned either.

  97. Since Kavanaugh changed his position since Clinton, this alone proves he is a partisan hack and a hypocrite. Bob Mueller should subpoena Trump before the confirmation hearings on this man begin.

  98. The fact is that Kavanaugh's opinion regarding presidential immunity is what set him apart from the other top choices. As usual, above any other consideration, Trump wants a get out of jail free card. Our so-called president is looking awfully guilty.

  99. Trump surrendered the privilege of being above the law long ago. He has consistently violated the Constitution’s Emoluments Clauses from Day 1 of his presidency. He has surrounded himself with crooks and scheming associates. He has apparently obstructed justice with Comey’s firing. He lies to the American people daily. He puts our country in jeopardy by cozying up to malicious world leaders whose goal is our defeat. The law is our only refuge, given the cowardly behavior of Congress.

  100. There are many reasons Kavanaugh should not be confirmed other than his placing a president above the law. There is this remark in his acceptance speech....something I found offensively fawning and more than likely a lie....
    “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” he said.
    Loyalty oath on display so soon?

  101. Fawning and more than a bit of self-adulation: 'Everyone said the president should pick me!'

  102. Mr. Kavanaugh's opinion is irrelevant: Presidents Jefferson, Nixon, and Clinton were all subpoenaed in the past and none of them was foolish enough to try to claim that they were above the law or above being questioned. Trump deserves no more privileges than they did during their presidencies.

  103. Kavanaugh's exorbitant and inaccurate praise of Trump in accepting the nomination should raise a big red flag.
    He is not a member of the president's Cabinet...or is he?

  104. While it sometimes feel as if it's too late and the right has truly won, it's important to take a longer view. This means that while it's possible that Kavanaugh will be confirmed and this Democratic congress will not vote to impeach Trump, it's imperative that the November election go against the Republicans, big time. There can be no sitting on the sidelines. Every single Democrat must get out and vote - particularly in purple districts - and every thinking Republican must do the same and vote Democratic. Anyone who does not get out and vote against this corrupt administration is aiding and abetting. If you are not part of the solution....

  105. “Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” Judge Kavanaugh wrote. “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”

    Let's follow that reasoning:
    So, a President:
    -Sells top secret information for money
    -Clubs the Vice President with a baseball bat
    -Commits insider trading for personal gain
    -Takes bribes for steering government contracts

    These criminal acts cannot be prosecuted because it will effect his or her job performance?

    How absolutely absurd.

  106. In criminal investigation, subpoena if sought for be it president or sany one, the power whatever it be ought to bow before the rule of law else what do we mean by equality in a vibrant democracy; no judge can allow any to avoid if he does he is no judge at all; and he is no judge material; he may have his own opinion, fact is he is bound by constitutional conditions if he is not he should be better not seek judgeship that too on USSC is my considered view; judiciary committee of senate is in a better position to shun such men to be judge on USSC and it can better not confirm such men who has such agenda. sorry i have nothing personally against Mr Trump as president , i just talk only on the office of president without any malice.

  107. The lesson of US v. Nixon, Jones v. Clinton and the 25th Amendment is that the President of the United States is a person and citizen first who only temporarily occupies the Article II executive office of one branch of our divided limited power constitutional republic of united states.

    Trump hss spent a third of his time office playing golf. And Trump "works" by watching Fox News while tweeting and speaking slurs is how Trump "fights ". Impeachment is in addition to civil and criminal process and prosecution. Impeachment is a political process to remove a President from office for "high crimes and misdemeanors " . Neither civil nor criminal process are empowered to do that.

  108. In addition, Nixon resigned rather than face the process of impeachment.

  109. He will be confirmed. The Democrats have no idea how bad they are looking with their hysteria, fake alarmist news, and propaganda. What a turnoff!

  110. As opposed to the hysteria, corruption, incompetence, venal behavior, fake alarmist news and propaganda coming out of the White House?
    I get your points and that's how Trumpanzees think.

  111. Nothing to worry about here because of:
    "He said Congress should consider imposing limits on such proceedings."

    If it's necessary for Congress to pass legislation, then the Constitution does not impose limits. Also, he says "limits" vs "prohibition". This nomination is setting Trump up for a dis"appointment" of Nixonian and Clintonian dimensions unless Kavanaugh believes the "witch hunt" nonsense. If the Dems don't ask that question in conformation hearings they deserve to lose.

  112. Judge Brett M. Kavanaugh has questioned the wisdom of forcing sitting presidents to answer questions from prosecutors?

    The more power a public servant holds the more they should be held accountable to those they serve.
    Accountability and holding a President to the law is the only wisdom.

  113. IF Americans are denied having the country's laws applied to everyone including the president, then they will be left with few alternatives in dealing with wrongdoing and expressing their displeasure at their elected and now out of control leaders.

    In less civilized times, one of those time-honored alternatives was tar and feathers and being ridden out of town strapped to a pole.

    I favor the somewhat less messy application of laws in the courts, with Lady Justice blind to who appears before her. The politics of those in position to judge should not come into play, or they too will be tossed out when the populace tires of their shenanigans.

  114. Gorsuch and Kavanaugh must recuse themselves from any case that involves criminal behavior of the president who appointed them. Anything else would be a total corruption of our judicial process and a stain on the Supreme Court.

  115. Brace yourself...

  116. Kavanaugh thinks that the president should be a dictator and not have to answer to anything he says or does while in office. Hitler rose to power because of guys like this in his country. Hitler became "above the law," and look what happened there!

  117. So when he answers no you will be satisfied then !!!

  118. Bit off topic, but I'm still waiting for our somewhat spineless Democratic leaders to push for the impeachment of Justice Clarence Thomas. He clearly lied, under oath, before Congress, in regards to his sexual harassment of Professor Anita Hill. Come on Dems- do your duty!

  119. Lots of interesting stuff here. One thing that makes this more interesting is for the first time in our history we have an unskilled total liar in the White House.

  120. Revise that to an incompetent & highly skilled liar . . . ,

  121. Trump went judge shopping for his future needs. Everyone is giving him way too much credit for decency and his role as POTUS.
    It was a pure and simple calculated decision by Trump based upon self-interest. He is only concerned with HIMSELF. He does not serve the American people, he does what will benefit him.
    Kavanaugh was picked for a future decision favorable to Trump and for future votes for Trump.

  122. What Trump Subpoena? There isn't one.

  123. We let our politicians steal so much power from us while we played with our smart phones and X-Boxes. Now we're not sleeping so well in the bed we made.

  124. It seems he had no trouble working for the Kenneth Starr investigation when it was a question of a Democratic president being subpoenaed…

  125. Exactly. And this needs to be repeated. Often.

  126. First, no subpoena has been issued, so the headline is misleading. Second, the article presupposes that Judge Kavanaugh would not recuse himself, which is certainly a question worth asking at his confirmation hearings.

    Last, it also presupposes that the judge is less a dispassionate jurist than a shill for Trump. I don’t like many of Kavanaugh’s rulings nor his conservative bent, but there is no suggestion that he is corrupt, and his resume includes the Starr investigation. To find that a president cannot be subpoenaed would be to overturn US v Nixon, and to ignore the subpoena to Clinton, who then cooperated, obviating the need.

    I’d be more worried about Gorsuch, who is proving to be a Trump puppet, precisely as planned.

  127. Gorsuch and Kavanaugh were selected by Trump during a period when there was much discussion regarding the bringing of criminal charges against the president. Obviously, these two men were selected in great part based upon how their vote would be cast in such a situation.

    Though you are correct that anything other than recusals would be a total corruption of the judicial process/stain on the SC, how can we be expected to believe that these two men would recuse themselves in such a situation? Or would they refuse to do so, as Clarence Thomas has boldly done when obvious conflicts of interest have arisen?

  128. The contradiction in Kavanaugh's argument is impeachment is no longer an option if you grant a president immunity from investigation. How would you begin an impeachment process without grounds established by a criminal or civil investigation? There's no way to determine whether the president had committed an impeachable offense. Congress would have to order the president to submit testimony to Congress before moving to impeach. We're right back where we started with the subpoena question. If that's not a legal and political corkscrew, I don't know what qualifies.

    Imagine the logistical problem for investigators too. There would be a gaping black hole surrounding the president where we should find evidence. This includes evidence pertaining to indictments against regular citizens other than the president. Are investigators just supposed to skip over Trump's role in Michael Cohen's civil and criminal charges? Cohen isn't the president. He doesn't have the right to delay his legal troubles until its convenient for Trump. What a mess.

    In any event, everyone agrees current law does not grant immunity to a sitting president. Kavanaugh's opinion is therefore rendered moot. The darker question is whether a conservative Supreme Court will attempt to carve out an exception for Trump while still respecting existing precedent. Either through expanded powers or an attack on Mueller's investigative rigor. In this scenario, I'm not nearly as confident we'll see a positive outcome.

  129. Interesting that even Hitler came to power with the support of the right wing conservative industrialists of Weimar Germany, the same people in power in the US. And using the Rule of Law, Hitler was able to take Germany from a democracy to dictatorship and ultimately to total destruction. History can and does repeat itself and if the US is not careful it will happen here has the warnings go out.

  130. As a former prosecutor, and later a public defender, the Kavanaugh selection produced this thought:

    In one swoop, Mr. Trump has revolutionized America’s entire criminal justice system. Where, previously, the defendant’s counsel played a role in JURY selection; now, following Mr. Trump’s precedent-setting choice for the Supreme Court, the defendant’s counsel will also be able to select the JUDGE who’ll preside over the trial.

  131. If a suspected criminal in the Presidency cannot be prosecuted because doing so endangers the country, we need a mechanism to carry on the execution of the office absent the full attention of the President. Yet another gap in the Constitution.

  132. I'm more concerned about the rumors that Trump bribed Kennedy to quit. he gave his son millions of dollars and promised to replace him with his former law clerk.

    Dems should halt this until the investigation is concluded.

  133. What is the evidence for this accusation?

  134. Democrats don't have a majority.

  135. This is a fairly easy thing to navigate for Mueller.

    What Trump has already said or done does cry for an explanation. If there is no explanation, but only a full denial, from the horse's mouth, the prosecution will produce its evidence and rest his case, the judge will instruct the jury, in fact two judges Fox News and the responsible media, and let the jury decide. You will get at worst a hung jury and a re-trial followed by a conviction.

  136. Which is the "responsible media"?

  137. It is correct that Hitler was the instrument the big corporations used to try to preserve their power and destroy the working class movement. In the USA there is no working class movement and not a left worth of the name, unfortunately. Corporate power will be preserved by both parties. They will get rid of Trump in a few years and a more presentable representative of capital will take his place.

  138. If we can't investigate a president for his possible involvement in a conspiracy with another nation against the United States then we have announced to our enemies that we are defenseless. When that conspiracy calls the legitimacy of the president's election into question, no stone should be left unturned no inconvenience is too great in the search for truth. In this investigation the future of our democracy hangs in the balance. Attempted comparison to a president's sexual indiscretions or even to perjury in a related civil action are irresponsible and dangerous. Any judge or member of congress acting to thwart the search for truth in this situation is doing great harm to our nation. I find it fascinating to watch Republicans initial unqualified respect for Robert Mueller's integrity erode as he reveals politically damaging evidence. Party over country has become their creed.

  139. Great Point!

  140. So Kavanaugh believes that “the president should be excused from some of the burdens of ordinary citizenship while serving in office” like responding to criminal charges because “even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting” and “a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.” Doesn’t impeachment of a sitting president have the same effect?

    But never mind that, Kavanaugh gave inaccurate and misleading testimony give in May of 2006 to the Senate Judiciary Committee on the the topic of torture. That should be enough to torpedo his nomination ..... even for Republicans.

  141. Certainly in a different era with more traditional Republicans, the false testimony would have been a no go, but these are not our grandparents' Republicans—they are a feckless lot who work only for themselves, country be damned.

  142. Hypothetically, if a sitting president shot someone on Fifth Avenue, would Kavanaugh postpone his prosecution?

  143. The problem with Kavanaugh is that he has an agenda. Such people do NOT belong in the judiciary, much less the Supreme Court.

  144. It all goes back to Hillary and the five hundred superdelegates that won her the nomination. It was one of those stupid blunders that changes history. Now Trump is on top. You’d better believe that Kavanaugh will be confirmed and any hope of toppling Trump will be quashed by a packed court of Trump’s own making. The Democrats will howl, but there will nothing they can do about it except to wonder why they made it all possible by nominating Hillary.

  145. The blackly cynical and pessimistic "the sky is falling" club is out in full force these days. I have a confrere who sits around darkly muttering that we are all screwed due to climate change, while delighted to drive around aimlessly most of the day. If you feel the way you do, protest, organize and vote.

  146. Why? We didn’t vote for Trump. By staying home or writing in Bernie or some third-party clown, you did.

  147. Mr. Kavanaugh would have to recuse himself. Not because he has written about the case. But because he was nominated by a party to the case. Now Kavanaugh claims to have changed his thinking, which is remarkably convenient. But has he ever publicly linked that change in thinking to President Clinton. Under Kavanaugh's new thinking, Clinton would not have been impeached and would not have been compelled to testify in any legal proceedings. My goodness. When he was working for Mr. Starr, Kavanaugh argued that a single misrepresentation was sufficient for impeachment. It would be a catastrophe were this court to split 5-4 in a result that protected this president with the assistance of this nominee. That is, however, what I expect would happen were he approved.

  148. When Democrats are in power they try to figure out how to win. They are blocked at every turn by the norms of government and their respect for the institution. They appeal to the better natures of their opponents and ask them to join the project of progress that will benefit everyone and make the world better for their grandchildren.
    When Republicans are in power they pack the government with loyal stooges who follow orders and use their positions to get rich. They respect no precedent or norm and employ lawyers to write memos explaining how their naked distortions of law are actually legal. They use the bully pulpit to appeal to the fear of the masses and confuse them with an avalanche of lies that the media has learned to respect as just another opinion. They subvert the meaning of settled law and impose a political will that distorts society.
    Democrats find it hard to get anything done because the residue of past Republican administrations has tied their hands. Republicans find it easy to get things done because law enforcement and the judicial system bend themselves out of the way to allow Republican policies to actualize.
    The Democrats never have enough money because the political system has been commoditized and their brand has been shunned by the corporate deep pockets. The Republicans have windfalls of cash that they don't know how to spend. The wealthy who are wealthy because of their policies keep the money spigot open.
    Is this the way we want this to be?

  149. These Senators will sit there and pick apart anyone from the other side who is nominated by the opposition, even slandering them. At least at the Supreme Court level, Ds have generally been worse than Rs. The most vicious fights since I've been politically aware (the early '80s) are over R nominees - like Bork and Thomas. Alito's wife cried at how he was treated. Of the 8 on the bench, the Rs were seated with an average of 60.5 yea votes (Roberts brings it up from 54 votes) and the Ds 78.5 yeas - meaning more Rs are voting for D nominees than vice versa. Of course, when you point out Garland, the math goes out the window. Perfectly legal manuever, but wrong.

    I wouldn't mind if the Senators opposed would just make speeches - "We don't want you b/c of your politics!" rather than their picking apart everything ever said or wrote by the candidate in the hopes of finding something less than perfect or, if that fails, twisting it beyond recognition - hoping to find someone who doesn't like them.

    And, b/c of the recent hysteria, it is getting worse. From statements by Ds already, you would think Trump nominated Tom Delay or David Duke.

    Personally, as a moderate, I support almost all nominees, including Sotomayor, who seemed only borderline qualified to determine constitutional law (although the wise Latina speech she wisely threw under the bus was quite correct). But, none of them deserve the ridiculous process they go through and which almost requires them to obfuscate or lie.

  150. It’s simple, Democrats nominate moderate judges, Republicans nominate conservatives vetted and approved by the federalist society which exists to pack the courts with reactionary ideologues. The voting results are predictable, neither Thomas or Bork should have been nominated to begin with. Thomas was not qualified and as time has shown was sexually harassing subordinates. Bork was a dogmatic individual incapable of rendering anything remotely unbiased if he had been appointed.

  151. Agreed. I do not like the politics of the Nominee but he is qualified by every standard that I can see, so he should get a fair hearing and a proper vote.

  152. The Democrats are generally worse? Interesting. It was the Republicans who refused to allow the nomination of a sitting President.

  153. Perhaps Judge Kavanaugh’s 2009 Minnesota Law Review article is actually one-half correct. A president should not be burdened by time-consuming and distracting civil or criminal matters that have no conceivable bearing on his election, national security or matters of significant national interest -- such as, hypothetically speaking, a failed land deal prior to his presidency or even a consensual affair with an intern.

    On the other hand, when the investigation involves an attack by a hostile foreign power on our elections and democratic system of governance, isn't that the very definition of a "burden" that should be at the very core, as Judge Kavanaugh wrote, "of the president's focus ... [and] responsibilities to the people."

  154. How can any citizen of the United States want the president to be above the law? Exempting the president from answering a subpoena, whether in regards to a criminal or civil action, but particularly a criminal action, would place that individual above the law. This discussion should not be about partisan politics. The discussion needs to be about what you believe democracy should be. If the president were legally exempt from answering a subpoena, the system of checks and balances is thrown out. There is nothing that makes the president better, under the law, than any other citizen and there should not be any legal exemption for a president to be exempt from any United States law. Exempting the president from having to respond to a subpoena would create a de facto and de jure dictator. There is a big difference between using power strongly and being a strongman. Think long, think hard. These conservatives are not democracy's friend.

  155. Mrs. Cat: indeed, how? If the president in question is Trump (or perhaps any Republican President), and, if the person in your question is Republican, then, it’s very likely that he/she would want that president above the law.

    The Democrats aren’t free of culpability in this regard. I suspect that many would want their party fellow to be above the law. But, the Republicans would win this hands down.

    I sometimes wonder whether the likes of McConnell don’t have a secret copy of the Constitution, with words like “country” and “nation” replaced by “party” or “Republican”.

  156. Judge Kavanaugh may have expressed "deep skepticism of the wisdom of forcing a sitting president to answer questions in criminal cases," but Judge Kavanaugh also knows, as well as anyone, that a judge's job is not to do what is "wise," but to follow the law. Wisdom is the province of policy makers, under our Constitution the majoritarian branches: Congress and the President. Law is the province of the courts. The Supreme Court has said many times that it sits to determine the constitutionality and interpretation of laws, not their wisdom.

    For judges to do what they individually think is "wise" is not proper; it is the most extreme manifestation of judicial activism, which conservatives purport to despise. Judge Kavanaugh is a conservative.

  157. Mrs. Cat: the President is not above the law. He can be impeached, tried and removed from office. That is the law. And if Congress wants to do that over a refusal to comply with a subpoena, it can do so.

  158. The President is not above the law. He can be impeached, tried and removed from office. That is the law. And if Congress wants to do that over a refusal to comply with a subpoena, it can do so.

  159. Yes. The same people howling about a 'wise Latina" are thrilled about a white wise guy.

  160. The deferment of legal cases against magistrates was one of the factors ending the Roman Republic. With immunity from prosecution about to end, Julius Caesar decided instead to cross the Rubicon and march on Rome.

    I suspect we're about to hear a call for the necessity of a president for life.

  161. “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Judge Kavanaugh wrote in 2009 in the Minnesota Law Review. Among those burdens, he said, were responding to civil lawsuits and criminal charges."

    Wrong.

    If you are President of the United States, you have to live to a higher standard than the rest of us. You are as subject to the same laws as the rest of us are - even more so.

    If you can't were those shoes, you shouldn't even be in the shoe store trying them on.

  162. The fact that this highly educated and experienced judge "concerns partisans from both sides" should tell you something about the choice.

    You should be more worried if there were no conservative "concerns" over the man.

  163. It is amazing to me that in our democracy, this is even debatable. If evidence is strong enough to support the subpoena, it should be served. Just because it's the president should have no bearing. Why do we elect a vice president? If the vice president cannot assume extra duties and assist so that the president can prepare then the vice president is useless. Does anyone want a potential criminal running the country??!! Especially if the alleged crime involves collusion with a foreign government. This is why so many people distrust lawyers - it's as if ethics and sound judgement go out the window when they pass the bar.

  164. It's worth pointing out--because I don't see where anyone else has--that the Clinton impeachment, on which KIavanaugh worked, went forward solely due to a false statement Clinton made at a deposition that would never have occurred had Clinton been granted the immunity Kavanaugh is advocating. No other charges came out of the Starr investigation.

    Were Trump required to give a deposition, the probability he would lie seems very high, the behavior coming so naturally to him.

  165. I do not think it wise to have anyone in government that believes the President - or any other person in our country - is exempt from the law, even if that law is changed to bring about that exemption.

    That would put us in the position of having a traitor in the White House tearing apart social and political fabric, both domestic and international, with no manner in which to stop them. We are almost at that point today with Republicans in general bolstering the oligarchy to the point of national failure.

    Come on, Mr. Mueller; at this point it can be treated. We need to see some action before we suffer from irreversible cancer.

  166. To We need help,
    Has this President ever demonstrated concern regarding law? Even when the underlying issues are so fundamental: treason? rule of law/obstruction of justice? When has this Congress shown concern, sincere concern, that this nation based on the rule of law demands protection for the people? McConnell will do what he must to protect himself even at great cost to our country, and Paul Ryan has a reservation booked for his flight home. It's time we act. Unfortunately the average citizen has little knowledge to use the power of the vote wisely.

  167. If it comes to the Supreme Court permitting Trump to avoid testifying if subpoenaed, I would anticipate street demonstrations and riots the likes of which we have never seen before. How could it be otherwise? A president blatantly above the law is contrary to everything Americans believe, especially if his court appointments vote to protect him from testifying. In the view of the people, we will lock up five year old children for

  168. Trump picked a man who he knows "owes him"...a friend not a foe. He believes he is KING so this gives him the ability to be one.

    If anyone cares about our democracy they will not vote him in.

  169. What happened to all those cries from the right that nobody is above the law? Only applies when there is a Clinton on the other end? Trump is lining up people who will protect him (Kavanaugh and Brian Benczkowski) and senate is happily confirming them. And not making them recuse themselves from matters related to Trump and Russia.

  170. "Kavanaugh has expressed deep skepticism of the wisdom of forcing a sitting president to answer questions in criminal cases."

    Obviously Judge Kavanaugh's judgement has to be questioned. Any rational used to justify why a sitting president cannot be questioned in criminal cases can equally apply to the vice president as well as to the House and Senate leadership, then to the next layer of the US government and so on. If Judge Kavanaugh is unable to recognize a "slippery slope" when he sees it, it is fair to suspect that his power of judgement is deeply flawed.

  171. Democrats should keep par with Republican tactics and use every means fair and foul to achieve their goals.

    The question is: does the old leadership have the right skillset, and fire in the belly? Can old dogs be taught new tricks? So far it appears that the answer is no.

  172. Mr. Liptak represents the norm in the national media, as it continues to struggle, and fail, to come to grips with who Trump is, and always has been, and with what that tells us about the current Republican party.

    Trump is basically a mobster. There is no way in the world that he would pick Kavanaugh without an assurance that Kavanaugh would protect him from Mueller. The Republican leadership in Congress has spent the last two years covering themselves in disgrace in their efforts to do exactly the same thing.

    If there is an R on the court who might be a wild card, it's probably Roberts.

  173. I am uneasy about Justice Kavanaugh. I view him as a kind of radical. Maybe even a fanatic.

    I didn’t care at all for his fulsome praise of President Trump the other day. I can understand a man desperately wanting to become a Supreme Court Justice, but laying the praise on with a trowel for a man as obviously unstable and demagogic as Trump is seems to me a bridge much too far.

    Kavanaugh is a firm believer in the idea that government has an interest in “favoring fetal life,” a job I thought was already being relatively well handled by women without much assistance from government. That is his right. But to him I say, where have all the conservatives gone who want to keep government out-of-our lives, where they belong.

    Then there are his guns. His previous writings reveal him to be a man who has never met up with a machine gun he didn’t like.

    Moreover, I am not consoled by recent newspaper reports that Judge Kavanaugh will be going on the Court as one of the poorer Justices. Not “poor poor” mind you, but pretty darn poor.

    I put more trust in decision-makers who have managed to put some mazuma away for a rainy day then I do in ones who haven’t. Someone like Judge Judy, for example. It seems to me an indication of getting your priorities-in-life right.

    There is a judge now serving on the Federal Bench by the name of Garland who seems to suffer from none of Kavanaugh's disabilities. I suggest we slow the process down now for a couple of years and wait for him.

  174. Kavanaugh was planted by Trump at the Supreme Court for the sole purpose of defending him against Mueller.
    A two men battle for justice in America is now two against one, unless Congress and a few principled justices intervene.
    If they don’t, it will be too late for the midterm election to make any difference.

  175. So why can't Mueller do some judge shopping, too:

    He could subpoena Trump Aug. 1, the day after Kennedy's retirement. 9th Circuit judges would line up to uphold the subpoena and force Trump to testify. If it goes swiftly to SCOTUS, the court would undoubtedly split 4-4, letting the 9th Circuit decision stand.

    Kavanaugh wouldn't be anywhere near the place.