Kavanaugh's Confirmation Prospects (Part Two) By Daniel Tagliarina

Part one of this analysis examined the credentials of Judge Kavanaugh, and examined two factors central to his potential confirmation as a Supreme Court justice, Mitch McConnell and Roe v. Wade. Part two will examine three more factors: 1) executive privilege; 2) birthright citizenship; and 3) voting rights.

Executive Privilege

The issue of executive privilege, and the full extent of executive power, is where the heated challenge is likely to be, and probably should be given the contemporary political environment. Executive privilege refers to the president’s ability to withhold certain information from the public as part of the president’s prerogative as the head of the executive branch. This is a contentious issue with, historically, presidents running into a wall at the Supreme Court, with justices favoring strong checks on presidential power. Kavanaugh is decidedly different on this issue.

Despite, or perhaps because of, his involvement in investigating President Clinton—an investigation that far exceeded its original, narrow focus—Kavanaugh has come to embrace a strong view of executive power. As recently as 1999, Kavanaugh has questioned one of the core precedents on executive privilege, musing whether the Supreme Court erred in its ruling in U.S. v. Nixon (1974) that Nixon had to hand over the “Watergate Tapes” to federal investigators despite his claims of executive privilege (an issue growing in importance). Kavanaugh has also questioned the wisdom of Morrison v. Olson (1988), which upheld the power of independent counsels to investigate government officials.

Photo by CNN

Finally, in a 2009 law review article, Kavanaugh made a series of policy arguments (but not clearly legal arguments) arguing that sitting presidents should probably not have to stand trial for civil or criminal wrongs, while in office. This argument questions the Court’s ruling in Clinton v. Jones (1997), which held that President Clinton could not either claim immunity from a lawsuit or delay the civil proceedings brought against him by Paula Jones until Clinton was out of office. If major issues arise, Kavanaugh argues, the president could be impeached, and then subjected to the legal system, but not while still in office. Kavanaugh’s position is that, while in office, the president should not be subjected to judicial control.

All of these would be major changes to Supreme Court precedent and immense expansions of presidential power and authority. While Kavanaugh has made these arguments, it does not mean he would make them as a Supreme Court justice, as lawyers often entertain legal arguments they do not necessarily believe are consistent with current law. However, these arguments cannot be separated from the president that chose to nominate Kavanaugh to the Supreme Court.

Mueller’s investigation into potential collusion between the Trump campaign and Russia has already made many indictments, and has shown no sign of slowing down. It is nearly impossible to reasonably view this nomination without also thinking about Mueller's investigation, especially after the Trump administration has floated the idea of the president being immune to subpoena requests. Any senator, regardless of political affiliation, would be doing a disservice to her or his constituents if she or he did not question whether this topic came up between Trump and Kavanaugh previously, as well as probing Kavanaugh’s views on this issue. It seems that Senator Booker has already begun laying the groundwork for this.

Photo by USA Today

Birthright Citizenship

Birthright citizenship, or more accurately “automatic birthright citizenship,” is the practice of granting citizenship to individuals born within a country regardless of the citizenship of their parents. Birthright citizenship is enshrined in our Constitution in Section 1 of the 14th Amendment. While long a point of contention with some nativist fringe elements, a recent Washington Post op-ed by a decidedly more mainstream conservative figure argues that everyone has been reading the Constitution wrong, and that automatic birthright citizenship should be removed, and it would merely take some rethinking to make this change.

This idea has received a lot of backlash, from both the left and right (although some sources on the right are continuing to support a limited version of this idea). Without belaboring the point here, Johns Hopkins professor Dr. Martha S. Jones, in a piece also in The Washington Post, expertly explains all of the flaws with the argument against automatic birthright citizenship.

This controversy does not mean that Kavanaugh has weighed in on this issue. In fact, while Kavanaugh has an extensive paper trail, there is no currently public evidence that Kavanaugh has said anything on the issue. However, the president’s various immigration battles suggest this is an incredibly relevant, and important, area where Kavanaugh can and should be questioned. Trump has attacked what he calls illegal immigration, instituted multiple versions of a travel ban that finally found one that works for the Court (including the retiring Justice Kennedy), repeatedly suggested that legal immigration should also be limited, and has long floated the idea of limiting birthright citizenship.

Where Kavanaugh stands on this issue should be of issue to all Americans, and it is unlikely that the Senate will not address this issue. Moreover, all of these other fights over immigration are part of what the Senate will be debating in considering Kavanaugh’s nomination.

Sens. John Tester (MT), Heidi Heitkamp (ND), Sherrod Brown (OH), Joe Manchin (WV) via Getty

Elections and Voting Rights

All confirmation struggles, in some part, are more about the senators than the nominee, and this one is no exception. This is a chance for senators to demonstrate to their constituents that they are listening to them. This could include senators up for reelection in either 2018 or 2020 who are “red state Democrats” or “blue state Republicans” who could be under electoral pressure to vote one way or the other to bolster their reelection chances. The confirmation process also offers a chance for potential Republican challengers in 2020 to pose themselves as either sided with, or against, President Trump. The process, also, grants Democratic senators eyeing a 2020 run for the presidency a clear chance to pitch themselves as anti-Trump in order to be able to appeal to their base in the primaries.

Increasingly, judicial confirmation hearings are a place for grandstanding and fawning, and not a place for substantive discussions that provide useful information for the general population. Still, this is not just about electoral prospects in the narrow sense, but about shaping the story of this confirmation and this administration. It is also, very importantly, about voting rights—something very much under attack by Republicans, and something the Court has continued to enable, including the gutting of the VRA, which Kennedy supported. Thus, as with these other issues, elections are in important backdrop to the drama that will unfold in the Senate as the confirmation process moves along.

Daniel Tagliarina is the Pre-Law Advisor and Assistant Professor of Government and Politics at Utica College.