# Brett Kavanaugh is the new Supreme Court nominee. Any Thoughts? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [July 10, 2018, 8:53am UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642 "2018-07-10T08:53:44Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [July 10, 2018, 6:15pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/21 "2018-07-10T18:15:59Z")
OK, so that’s just what he thinks the law should be, not what he thinks the law is. Distinction duly noted. But seriously, he thinks that the law should be that the sitting President can’t even be investigated? That’s out there in cloud cuckoo land. Can’t be indicted, that makes sense, because one can argue that the correct venue for disciplinary action against the President should be impeachment. But how can Congress even make a decision on whether to impeach, if the President can’t be investigated? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 10, 2018, 6:19pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/22 "2018-07-10T18:19:37Z")
> [@Ravenman](#): > > So if Merrick Garland had written an Op-Ed suggesting that Congress write a law to provide free abortions to everyone up until the moments before birth, do you suppose that article would be generally taken as: > > 1. An indication of his extreme views on a controversial subject; or > 2. A demonstration of his “hypercognizant” recognition of the distinction between his own opinion and the law? ISTM that 1 and 2 are not at all inconsistent, and in your particular example, both are true. In the actual case of Kavanagh, however, only 2 is correct, since - as Bricker noted - his proposed law is in line with longstanding DOJ guidelines and as such can hardly be termed “extreme” as a proposed policy. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [July 10, 2018, 6:33pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/23 "2018-07-10T18:33:56Z")
> [@Fotheringay-Phipps](#): > > ISTM that 1 and 2 are not at all inconsistent, and in your particular example, both are true. In the actual case of Kavanagh, however, only 2 is correct, since - as Bricker noted - his proposed law is in line with longstanding DOJ guidelines and as such can hardly be termed “extreme” as a proposed policy. **Bricker** did not speak to the issue of urging the Congress to exempt the President from investigations. I think the DOJ guidance on indictments is a difficult issue that I can see both sides of – but asserting that the President can’t even be subject to questions? That’s not DoJ guidance, and that’s pretty extreme. Not to mention that _it is a terrible idea._ ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [July 10, 2018, 6:58pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/24 "2018-07-10T18:58:03Z")
If there were some actual way of enforcing this separation that **Bricker** keeps talking about, then I might think it has merit. But there is not. There is no one to hold them accountable. As such, there is no reason to think that they won’t simply come to a conclusion and then rationalize a way for it to fit. It’s how human beings tend to think. We don’t even realize we’re doing it. It’s not merely the claim itself that the President should not be able to be investigated while in office. It’s the attitude behind that. That is fascistic. It’s a basic concept of American democracy that no one is above the law, and he’s fighting against that. He wants an authoritarian President. It is thus quite likely that he will defer to the President as much as possible in any decision, which is a bad thing. The Court is a co-equal branch. It exists to override this. Now, maybe he won’t be like that. Does anyone have other data points that suggest that he does not act in this manner? The thing about Supreme Court nominees is that we have a ton of past decisions to look at. Do they fit the pattern I say? I did point out that this is merely a suggestion of the way he thinks: maybe I’m wrong, and he’s just misguided in this one instance. Or he may have even changed his mind. Still, I think proposing such a law is indicative of a potential problem. Even if you genuinely believe that there should be this separation, humans are not perfect. Your beliefs will be in your decisions, and what you have to do is realize that and fight the bias. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 10, 2018, 6:58pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/25 "2018-07-10T18:58:36Z")
> [@Ravenman](#): > > **Bricker** did not speak to the issue of urging the Congress to exempt the President from investigations. I think the DOJ guidance on indictments is a difficult issue that I can see both sides of – but asserting that the President can’t even be subject to questions? That’s not DoJ guidance, and that’s pretty extreme. I don’t see those as all that different. Especially since he obviously accepted that Congress could investigate the president, as part of the impeachment process. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [July 10, 2018, 7:10pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/26 "2018-07-10T19:10:25Z")
> [@Fotheringay-Phipps](#): > > I don’t see those as all that different. > > Especially since he obviously accepted that Congress could investigate the president, as part of the impeachment process. Do you believe that there is any circumstance in which a President should be compelled to answer questions about civil or criminal matters (while still maintaining his Fifth Amendment protections)? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2018, 7:22pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/27 "2018-07-10T19:22:13Z")
> [@Ravenman](#): > > **Bricker** did not speak to the issue of urging the Congress to exempt the President from investigations. I think the DOJ guidance on indictments is a difficult issue that I can see both sides of – but asserting that the President can’t even be subject to questions? That’s not DoJ guidance, and that’s pretty extreme. > > Not to mention that _it is a terrible idea._ I agree. I missed that distinction in my commentary, and I agree that blanket immunity from subpoena duces tecum is unwarranted. The courts should certainly adopt a rule that grants flexibility to the President – we want to avoid the situation in which the President is hamstrung in the performance of his critical duties by a subpoena production deadline – but I absolutely concur that blanket immunity to civil process is not justified. Same issue with respect to subpoena ad testificandum – the courts must be deferential to the President’s schedule but the President cannot simply refuse. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 10, 2018, 7:25pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/28 "2018-07-10T19:25:07Z")
> [@Ravenman](#): > > Do you believe that there is any circumstance in which a President should be compelled to answer questions about civil or criminal matters (while still maintaining his Fifth Amendment protections)? FTR, I’m not personally endorsing the position of Kavanagh in his article, either as to the freedom from indictment or the freedom from investigation. I’m just saying that I don’t see the big distinction between the two, to the point that one would be official DOJ policy and the other “extreme”. That’s all. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2018, 7:29pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/29 "2018-07-10T19:29:44Z")
Too late to ETA, but his word were: “In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” This is an endorsement of the idea, to be sure, but it’s hardly a wholesale, vigorous, and hale endorsement of the concept. “Might consider,” is not in the same ballpark as “Congress must address…” or “Congress should immediately pass…” or stronger such terms. To me, “might consider,” is an ambivalent invitation to weigh the equities, not an unmixed acceptance. I think a fair inference is that he generally favors the idea, but doesn’t suggest it’s necessary for every observer to agree. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2018, 7:40pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/30 "2018-07-10T19:40:06Z")
For useful context, here is a longer excerpt: > [@](#): > > Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President.In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis. > > Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. 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. > > One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office. > > A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution. A final note: these words were written after the beginning of the Obama presidency, a point I mention lest a reader believes the opinion was adopted to shield Trump. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [July 10, 2018, 8:23pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/31 "2018-07-10T20:23:48Z")
> [@Shodan](#): > > Did you miss the word “specifically”? It may be against the rules to say this is a fabrication, but it certainly isn’t true. > > Actually, in a sense it’s kind of encouraging - the left can’t make any true accusations against Kavanaugh, and fair-minded people will recognize what this says about their case. > > Regards, > Shodan I can make the assertion that because Donald Trump wants him on the Supreme Court, he shouldn’t be on the Supreme Court. I’m comfortable with what that says about me (because what it says about me is that I don’t hate America). ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [July 10, 2018, 8:36pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/32 "2018-07-10T20:36:46Z")
> [@Bricker](#): > > A final note: these words were written after the beginning of the Obama presidency, a point I mention lest a reader believes the opinion was adopted to shield Trump. The article also begins with an explaination somewhere along the lines of, “I didn’t think I’d ever say this, but I’ve changed my mind about whether the President should be treated like any other American.” I suppose we can all speculate on the motives for the change of heart, but two theories pop immediately to mind: 1. He developed regrets on his work on the Starr Report that lead to the impeachment and acquittal of Clinton; or 2. His time working in the Bush White House during the period that torture was authorized had some lasting impact. Of course there are other explanations possible… maybe we will never know. ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [July 10, 2018, 8:56pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/33 "2018-07-10T20:56:38Z")
> [@Bricker](#): > > For useful context, here is a longer excerpt: > > A final note: these words were written after the beginning of the Obama presidency, a point I mention lest a reader believes the opinion was adopted to shield Trump. Not only was the opinion voiced with no knowledge of Trump, but presumably based in part on Kavanaugh’s first hand involvement in the investigation of Bill Clinton by Ken Starr. Such investigations are inevitably politicized, either by the investigators consciously, unconsciously, or not at all but still strongly perceived to be by the other side. Just because he was right that it would end up that way with a GOP president in the crosshairs like it did with Clinton, doesn’t mean he wrote that after a time machine trip to Trump’s presidency. I think his point is to just stop making believe criminal investigations of the top political official can be made by ‘non partisan career professionals’ (who often turn out to have strong partisan opinions and affiliations, in a toxically polarized politics) and leave it to a political body that’s not pretending it’s something else: Congress, using its oversight (to investigate) and impeachment powers (to remove from office). ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [July 10, 2018, 9:14pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/34 "2018-07-10T21:14:49Z")
Underneath the published decisions and between the lines lies…what? I’m afraid the fact that Trump nominated him has tainted him too much for me to accept. Do you really think Trump has any doubts that Kavanaugh will overturn Roe v. Wade, if given half the chance? ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [July 10, 2018, 9:26pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/35 "2018-07-10T21:26:19Z")
> [@Musicat](#): > > Underneath the published decisions and between the lines lies…what? I’m afraid the fact that Trump nominated him has tainted him too much for me to accept. Do you really think Trump has any doubts that Kavanaugh will overturn Roe v. Wade, if given half the chance? That seems to me the reasonable and honest position against Kavanaugh. He’s a conservative (in legal/judicial terms as understood in recent times), and one doesn’t want another of those on the court. Besides which, Trump in particular nominated him. Not saying I agree necessarily. But it’s a better argument than dredging up a completely reasonable and mainstream opinion expressed by Kavanaugh (other than in a judicial ruling) about the pitfalls of ‘non partisan career professional’ criminal investigations of presidents, written based on first hand experience in the investigation of Bill Clinton, before anyone knew Trump would be president, and retroactively deeming that opinion ‘extremist’ because now Trump is being investigated. ---
**Author:** ![aceplace57](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aceplace57/32/3500_2.png) [@aceplace57](https://boards.straightdope.com/u/aceplace57)\ **Post date:** [July 10, 2018, 10:06pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/36 "2018-07-10T22:06:59Z")
I’m pretty sure if Kavanaugh gets blocked. The next nominee will be much further to the right. Something for all the Senators to consider. The hope is to find someone similar to Kennedy that will vote either side. Depending on the case. We don’t need another conservative rubber stamp. ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [July 10, 2018, 10:11pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/37 "2018-07-10T22:11:26Z")
While I understand Democrats are not happy with his selection, I think it’s rather futile for them to strongly oppose it. I mean, what do they expect? For Trump to nominate a liberal? And it may backfire; if the libs somehow “get their way,” resulting in Kavanaugh not accepting the nomination or getting Bork’ed, Trump will simply pick someone a lot “worse.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2018, 10:14pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/38 "2018-07-10T22:14:18Z")
> [@Ravenman](#): > > The article also begins with an explaination somewhere along the lines of, “I didn’t think I’d ever say this, but I’ve changed my mind about whether the President should be treated like any other American.” > > I suppose we can all speculate on the motives for the change of heart, but two theories pop immediately to mind: > > 1. He developed regrets on his work on the Starr Report that lead to the impeachment and acquittal of Clinton; or > 2. His time working in the Bush White House during the period that torture was authorized had some lasting impact. > > Of course there are other explanations possible… maybe we will never know. For me, though, it’s significant that his change of mind did not translate into a belief that the constitution should be read to prevent such investigations, but merely that Congress should consider enacting legislation. That’s what I want judges to do: render under Congress what is Congress’. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [July 10, 2018, 10:44pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/39 "2018-07-10T22:44:27Z")
Why even raise the question of whether Democrats should block him? It’s irrelevant, because we can’t. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 10, 2018, 10:49pm UTC](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642/40 "2018-07-10T22:49:06Z")
Can someone show me a Kavanaugh opinion that makes him “left of right” or IOW left of Gorsuch or Scalia? I’m not seeing it. The ACA opinion was spot on. The abortion opinion shows he would overrule Roe. The NJ gun opinion shows that he is right on guns. Ken Starr was on Fox News giving a wink that this guy is a great conservative. Why do some on the right think he is liberal? [Previous page](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642.md?page=1) [Next page](https://boards.straightdope.com/t/brett-kavanaugh-is-the-new-supreme-court-nominee-any-thoughts/817642.md?page=3)