The legal and Constitutional case against confirming Brett Kavanaugh to the Supreme Court

[shanen]

I promised a friend that I would contact some Senators about the Brett Kavanaugh nomination. For brevity, I will refer to him as BMK after this. It took me a while to formulate my objections clearly enough, but here are the notes of my analyses (to use in phone calls to the Senators).

The case against BMK for the Supreme Court:

1. BMK says Congress should give the president special protected legal status, essentially putting the president above all normal laws.

2. BMK must believe the Supreme Court would not declare that new special legal status of the president to be unconstitutional, and on the Supreme Court he must intend to vote in support of his position.

3. It is absolutely clear that the original authors of the Constitution did NOT want to make the president into a king of any sort. What BMK is advocating is an absolutely clear violation of the Constitution and nothing less than the total destruction of the Constitutional separation of powers.

4. Even if BMK repudiated his current position, it would be meaningless since he used to be on the opposite side when he was working to use the laws against President Clinton. He can always change his mind again.

As a nominee, BMK is basically similar to the other candidates on the "official" list (of judicial extremists) EXCEPT for BMK's especially extreme perspective on presidential power. It is almost certain that this is the special reason that Trump nominated him, which is a clear conflict of interests.

Now the argument for invoking the "McConnell Rule" against approving a Supreme Court nominee close to an election:

1. By your Senate vote in favor of Neil Gorsuch, you have accepted and endorsed the McConnell Rule.

2. If there is ANY validity in the McConnell Rule, then the proximity of the election MUST be considered before confirming any Supreme Court nominee.

3. The next election is MUCH closer and more proximate than in the case of Merrick Garland.

4. Therefore you must postpone consideration of this vacancy until after the voters have spoken. Or you are a lying hypocrite and SoS.

Just for the Senator's information, I am also circulating these 4-point arguments as widely as I can on social media. I do not know if either of them will "go viral", as they say, but I sincerely believe they are true and that truth will win in the end. Lies don't last and hypocrites will lose, but the truth will prevail among honest people.

I was going to write more on why this Supreme Court nomination is a national issue that should transcend the borders of the states, but I think what I've written already is going to overflow the time I have available, which is only about 5 minutes with the VoIP software I'm using. Now to the phone...

[shanen]

1. Really hard to understand how DU works

Just seems surprising to me that so many people have supposedly seen this thread, but not one person has a reaction to it. The BMK nomination is still moving forward, but apparently the Democrats have already forgotten about it or just given up on trying to stop it.

By the way, I did call two of the senators using those notes. Emotionally draining, but no less pointless than DU seems to be.

[Mr.Bill]

2. While I agree with the OP,

but there is nothing there that will keep every single republican in the Senate from voting for him. And probably a few Democratic ones, too, after Chuck Schumer gives them a pass because it won't make any difference anyway.

[shanen]

4. Don't you have a more constructive suggestion?

Well, maybe your reply explains why there are so few reactions here on DU? The situation really is hopeless and we might as well shut up and enjoy the rape of the Constitution. (As of this writing, there is only one other reply, but it is equally hopeless and equally filled with despair.)

Mostly it reminds me of a scene in Mark Twain's Life on the Mississippi. Do you remember the bit where Bixby transfers his anger to the passing boat and afterwards Twain says that you could run Bixby's blood through a seine without finding enough curses to bother your granny? In this scenario, you'd be filtering the blood of the so-called Republicans looking for any traces of honor or integrity or even basic human decency and coming up with zilch.

We need solutions and ideas, not more despair.

[Mr.Bill]

5. No, I don't.

And it's not despair. It's reality. We all wish it wasn't so, nothing wrong with your post.

[TheBlackAdder]

3. Laws no longer apply when there is a lawless GOP controlling all segments of government.

[smirkymonkey]

6. This would be an outrage and everything must be done to stop it.

Everyone needs to call/write their congresspeople to delay, if not stop this appointment!

[onenote]

7. There is no "legal" or "Constitutional" case against his nomination

There is a policy case, and a political case. Strong ones. But the suggestion that somehow nominating and/or confirming him would be contrary to law or violate the Constitution is simply absurd.

A telling admission in the OP: even if Kavanaugh repudiated his prior position it would be meaningless because he could change his mind again. Well, any Supreme Court nominee can change his or her mind at any time, so that's not really much of an answer.

I hope like hell his nomination can be blocked or stalled until after November where, if we're fortunate (and its far from certain), we regain control of the Senate and can either vote down or shut down the nomination (although there's no guarantee of that either, even if there are 51 Democrats in the Senate).

As for the McConnell "rule" -- it isn't a rule, it was a power play by the Republican majority which by virtue of being in the majority could do what it wanted with the nomination. They are still in the majority so they still can do what they wanted (leaving aside the easily made distinctions between a nomination in the year before an off-year election and a nomination in the final year of a president's second term -- although as indicated, those are just fig leafs -- the real point is that the party with the majority controls what happens, or not, to a nomination and short of the voters applying pressure on Congress, there isn't a damn thing anyone can do about it.

[shanen]

8. NOT a constructive contribution

Essentially your argument reduces to a claim that any oath to defend and protect the Constitution is meaningless, even when it comes to a nominee who has clearly stated that he will destroy the Constitution.

Have you done as much as call one of your senators? Maybe you can get them to laugh at you? If so, you may have accomplished more than I have.

[onenote]

9. Personally, I think any reality based criticism is constructive

While imagining things is not.

And I have called both of my Senators and urged them to vote no for policy reasons not for some imagined constitutional objection that they would know to be silly.