Printer-friendly versionPrinter-friendly version Share this

Kavanaugh previously argued that presidents should be immune from criminal prosecution, while working at the Bush White House

By Miriam Raftery

View video clip:

September 4, 2018 (Washington D.C.) -- The Senate confirmation hearing for President Donald Trump’s Supreme Court justice nominee, Judge Brett Kavanaugh, opened today over strenuous objections from Democrats who asked for postponement to allow time to review “42,000 pages of documents that we have not been allowed to read or analyze,” according to California Senator Kamala Harris and others. The documents, reflecting Kavanaugh’s tenure as White House Staff Secretary to President George W. Bush, were provided to committee members only the night before the hearing.

But Republican Chairman Chuck Grassley refused to recognize any Democrats on the committee. Several Senators asked for adjournment of the hearing, as protesters interrupted to call for justice, but the chair refused all requests.

A key concern raised is that Kavanaugh put forth arguments that a president should be above the law, not subject to criminal prosecution while in office or for actions undertaken as president.  With special prosecutor Robert Mueller already securing numerous indictments and guilty pleas in his probe of Trump-Russia ties, critics argue that as an unindicted coconspirator who could potentially face charges or impeachment,Trump  shoudl be blocked by the Senate from appointing a nominee who believes that a president should not be held accountable legally for his actions.

The actions of Grassley are unprecedented in Senate history. The only other recent candidate to have worked for the White House was Justice Elena Kagan, an Obama appointee. Obama released all documents requested regarding her tenure, unlike Trump, who sought to claim executive privilege. The documents released were provided by former president Bush’s attorney – not the White House, and are still not the complete record.

Senator Charles Schumer, in his questioning of Kavanaugh, noted that Kavanaugh lied during a previous judicial confirmation hearing and claimed he had nothing to do with the Bush adminsitration’s torture policies, when in fact documents prove he did.

Kavanaugh also issued a 2012 ruiling siding with a casino owned by Trump to thwart a union drive, an action that has led some to contend that Trump offered the Supreme Court bench seat to Kavanaugh as a reward.

Kavanaugh is currently a circuit judge on the U.S. District Court of Appeal for Washington D.C. with a staunch conservative record. He is rated qualified by the American Bar Association.  He holds a law degree from Yale University, clerked for Supreme Court Justice Anthony Kennedy, and alter worked for  special prosecutor Ken Starr during the investigation of President Bill Clinton before later joining the Bush White House and winning a judicial seat.

Conservatives are eager to push through confirmation of Kavanaugh, who would provide a conservative 5-4 tilt on the Supreme Court that could provide decisive on issues ranging from rolling back abortion rights under Roe v. Wade  as well as key decisions on issues such as union rights, gay marriage, and more. They have argued that the vacancy must be filled immediately to avoid a 4-4 tie on the high court following retirement of Justice Anthony Kennedy.

But Republicans had no problem leaving the court with just eight justices for the entire last year of Barack Obama’s presidency, when they refused to allow a vote on Obama’s nominee, Merrick Garland, postponing action until after the 2016 election, which Trump won.

Democrats argue that since Republicans refused to allow an up or down vote on an Obama high court nominee during his final year in office, so, too, should a decision on Kavanaugh wait until after the November mid-term elections when the balance of power in the Senate could shift.  

But that argument has been brushed aside by the Republican leadership, which also eliminated the filibuster.  In the past, the filibuster assured that 60 votes were needed in the 100-member Senate for any controversial matter if a member chose to block action with a filibuster, but now the minority party, currently the Democrats, no longer have any mechanism to block the high-stakes judicial nomination.

Error message

Support community news in the public interest! As nonprofit news, we rely on donations from the public to fund our reporting -- not special interests. Please donate to sustain East County Magazine's local reporting and/or wildfire alerts at to help us keep people safe and informed across our region.