There Is Nothing ‘Illegitimate’ About The Brett Kavanaugh Nomination

There Is Nothing ‘Illegitimate’ About The Brett Kavanaugh Nomination

Democrats keep creating a make-believe constitutional order.
David Harsanyi
By

Perhaps one day a court will find that Donald Trump had conspired with his personal lawyer Michael Cohen to pay non-disclosure agreements meant to silence his mistresses. Perhaps one day the House will impeach Trump for breaking those campaign finance laws, and then, maybe the Senate will also remove him from office.

Those are the mechanisms that have been provided by the Constitution to thwart a president from nominating justices to the Supreme Court. I’m afraid there’s no clause in the document that empowers angst-y liberal pundits and politicians to question the legitimacy of duly confirmed justices.

But much like their ideal Supreme Court, Democrats have set about fabricating brand new extra-constitutional standards that happen to always align with their partisan aims. Their latest concocted stipulation states that anyone nominated by a president under suspicion of criminality becomes “illegitimate.”

Democratic Sens. Mazie Hirono and Ed Markey canceled meetings this week with prospective Supreme Court Justice Brett Kavanaugh. Markey said the nominee was “illegitimate” because the president was “all but named as a co-conspirator.” A similar sentiment was repeated by many Democrats and liberal pundits. The Supreme Court itself, contends The New York Times’ Paul Krugman, would become “fundamentally illegitimate.”

Much of this, of course, is typical Trump-era hyperbole. None of these senators were going to vote for Kavanaugh anyway, and none of these pundits are going accept the validity of the Supreme Court that adheres to the Constitution as written. Yet, it’s still worth noting the vacuousness of their arguments.

For one thing, Brett Kavanaugh is not Donald Trump. His nomination will be decided by senators, ostensibly on the merits of his career and legal positions. His nomination has nothing to do with either Trump’s short-lived campaign manager Paul Manafort, whose crimes aren’t even related to the 2016 election, or with Cohen. Even if Trump was impeached, Kavanaugh would be the kind of judge that Mike Pence would nominate — and, for that matter, Jeb Bush or any other conservative. Which is the real problem for Democrats.

Trump’s nominees for SCOTUS, in fact, have been about the most traditional and predictable aspects of his presidency. And since those picks have shown a fealty to law, their nominations would be a boon for the institutions that Democrats are pretending to protect.

Then again, the idea that mere suspicion of criminality is enough to stop a president from engaging in his constitutional duty is a completely new one, designed, as most things these days, only for Trump.

The Whitewater investigation went on for nearly 3,000 days. Did that mean that any court with Stephen Breyer, nominated after an independent investigation was launched, became “fundamentally illegitimate?” I mean, that investigation ended up convicting 15 friends and allies of the Clintons for over 40 crimes, including felonies like fraud, bribery and embezzlement. Talk about a “cloud of suspicion.” Clinton himself was impeached, not on campaign finance charges, but on obstruction of justice and perjury. His wife was under investigation throughout most of her 2016 campaign, and not one serious person claimed that her SCOTUS nominees would be “illegitimate.”

Does this standard mean that all of Richard Nixon’s justices are retroactively illegitimate, as well? Or that the Clean Water and Clean Air Acts and Environmental Protection Agency are also now illegitimate? Does it mean anyone who cops a plea with prosecutors to save themselves some prison time can “all but” name a politician as a co-conspirator, ending that elected official’s ability to engage in their constitutional duty?

Of course, if the Senate doesn’t want to take up the Kavanaugh’s nomination, that’s its prerogative. There is nothing in the Constitution that demands senators consider the president’s choices — despite the feigned fury over Senate Majority Leader Mitch McConnell’s refusal to move on the Merrick Garland vote. That too was a new standard Democrats concocted. There is, however, a real threat to order when a major party is convincing its constituents that our institutions — elections, courts and so on — are no long “legitimate” because they haven’t gotten their way in the political arena.

The fact is that even if Special Counsel Robert Mueller comes back with a recording of Trump and Vlad Putin strategizing on how to hack the DNC server, the only way to stop the president from nominating justices is by electing people who will impeach and remove him — not by creating a new make-believe constitutional order.

The other day, liberals got a big kick out of pointing out the “irony” of Republicans at the president’s West Virginia rally chanting “lock her up!” on very same day that his former campaign manager and personal lawyer were getting jail time. I imagine that those chanting see another irony in the fact that one party skirts justice, while the other is asked to play by new rules Democrats invent as they go along.

David Harsanyi is a Senior Editor at The Federalist. He is the author of the new book, First Freedom: A Ride Through America's Enduring History with the Gun, From the Revolution to Today. Follow him on Twitter.

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