Curiouser and Curiouser

"'Curiouser and curiouser!' Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English)."  -- Lewis Carroll

So goes the Senate's nomination process for Supreme Court nominee Brett Kavanaugh.  The Washington Times reports:

Democratic senators demanded Wednesday that Supreme Court nominee Brett Kavanaugh's confirmation be put on hold, saying he's too tainted by President Trump's potential legal troubles.

If you reacted to that by saying, "Huh?  How can a case with no connection to Judge Kavanaugh possibly 'taint' him?" welcome to the club.

Further down the article, we get this explanation: "In one law review article, he said a sitting president shouldn't be subject to a civil or criminal investigation."  Has anyone making that argument actually read the article?

Here is the key passage, which follows a discussion of how weighty and important the President's burdens and responsibilities are:

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones--that presidents are not constitutionally entitled to deferral of civil suits--may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.

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.

Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1460-1461 (2009) (footnotes omitted).

Are the folks making this argument completely clueless as to the distinction between constitutional rules and statutory rules?

Any citizen, even a judge, can propose all kinds of statutes that he thinks the legislative authority should enact.  It does not follow, for anyone with even a halfway decent respect for the separation of powers, that a court should or legitimately can decree the same rule as a constitutional mandate.  Clinton v. Jones is precedent on the constitutional point, and far from suggesting it should be overruled Judge Kavanaugh noted it may be "entirely correct." Only a conservative judicial activist who was a mirror image on Justices Douglas or Brennan would read his policy preferences into the Constitution.  No one in that mold is presently on the Supreme Court and none has been nominated.  Quite the contrary, Judge Kavanaugh was chosen in large part because he does not have that mindset.

The present political scandal is no reason at all to leave the Supreme Court short-handed.  Indeed, it is a reason to fill that seat with a person of integrity, intellect, and commitment to the constitutional separation of powers.  And that is exactly who has been nominated.

Curiouser and Curiouser curated from Crime and Consequences Blog