Will Rapist Brett Kavanaugh Be Impeached?

Thirty-nine members of Congress, primarily from the Congressional Progressive Caucus, signed this letter to Trump yesterday, committing themselves to pursuing an investigation of Brett Kavanaugh that could lead to his impeachment. Members of the House Judiciary Committee, Ted Lieu (D-CA), Pramila Jayapal (D-WA), Jamie Raskin (D-MD), Steve Cohen (D-TN) and Karen Bass (D-CA) are the men and whom would get that investigation going, are among the signers.

October 4, 2018

President Donald Trump
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Dear Mr. President:

In light of Dr. Blasey Ford's September 27th swom testimony to the Senate Judiciary Committee regarding the extremely serious and credible allegation that Judge Kavanaugh sexually assaulted her, we join Democratic members of the Senate Judiciary Committee, womenls rights advocates, and millions of Americans in urging you to withdraw Judge Kavanaugh's nomination. Judge Kavanaugh's credibility has been fatally undermined by his dodging of calls for a FBI investigation into sexual misconduct, and his aggressive, evasive and overtly partisan reactions during his September 27th Senate hearing.

Judge Kavanaugh has made misleading statements under oath on a variety of highly questionable actions and episodes. For example, he likely misled the Senate about his alleged involvement in Bush-era warrantless surveillance, the administration's legal rationale for torture and indefinite detention, his knowledge of the sexual misconduct claims levied against disgraced former Judge Alex Kozinski, the use of stolen Senate nomination documents, and the role he played in the nomination of controversial Judge Pickering to the 5th Circuit U.S. Court of Appeals.

Given the urgency to ensure that a seat on the highest court of the country is not afforded to a nominee of dubious character with a record of possible perjury, we wish to express our commitment to exercising our constitutional oversight authorities-- using subpoena powers if necessary-- to obtain the full record of Judge Kavanaugh's time in the Bush Administration, only roughly 10 percent of which have been available to the Senate Judiciary Committee. If a careful examination of the entire scope of his legal history-- thus far withheld from the Senate-- demonstrates that Mr. Kavanaugh lied under oath, the constitutionally prescribed remedy would be impeachment proceedings.

We remind you that the process to seat Judge Kavanaugh on the Supreme Court-- in effect, & promotion-- does not follow the norms or evidentiary standards of a criminal trial, such as proof beyond reasonable doubt of an allegation. Numerous credible accusations of serious misconduct and reasonable inquiries by Senators have provoked statements by Judge Kavanaugh that can only be viewed as dishonest, outlandish, or inappropriate on matters both trivial and significant. The credibility and reputation of the country,s highest judicial body is at stake. We urge you to withdraw Judge Kavanaugh's nomination.

What a badge of courage this was yesterday!

Hey, as long as we're reading documents today, how about the one Susan Collins gave yesterday on the Senate floor, the one that well may turn out, in 2020, to have been her fairwell speech:

Mr. President, the five previous times that I have come to the floor to explain my vote on the nomination of a justice to the United States Supreme Court, I have begun my floor remarks explaining my decision with a recognition of the solemn nature and the importance of the occasion.

But today we have come to the conclusion of a confirmation process that has become so dysfunctional it looks more like a caricature of a gutter-level political campaign than a solemn occasion.

The President nominated Brett Kavanaugh on July 9th. Within moments of that announcement, special interest groups raced to be the first to oppose him, including one organization that didn’t even bother to fill in the Judge’s name on its pre-written press release-- they simply wrote that they opposed “Donald Trump’s nomination of XX to the Supreme Court of the United States.” A number of Senators joined the race to announce their opposition, but they were beaten to the punch by one of our colleagues who actually announced opposition before the nominee’s identity was even known.

Since that time, we have seen special interest groups whip their followers into a frenzy by spreading misrepresentations and outright falsehoods about Judge Kavanaugh’s judicial record. Over-the-top rhetoric and distortions of his record and testimony at his first hearing produced short-lived headlines which, although debunked hours later, continue to live on and be spread through social media. Interest groups have also spent an unprecedented amount of dark money opposing this nomination.

Our Supreme Court confirmation process has been in steady decline for more than thirty years. One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.

Against this backdrop, it is up to each individual Senator to decide what the Constitution’s “advice and consent” duty means. Informed by Alexander Hamilton’s Federalist 76, I have interpreted this to mean that the President has broad discretion to consider a nominee’s philosophy, whereas my duty as a Senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial thought.

I have always opposed litmus tests for judicial nominees with respect to their personal views or politics, but I fully expect them to be able to put aside any and all personal preferences in deciding the cases that come before them. I have never considered the President’s identity or party when evaluating Supreme Court nominations. As a result, I voted in favor of Justices Roberts and Alito, who were nominated by President Bush, Justices Sotomayor and Kagan, who were nominated by President Obama, and Justice Gorsuch, who was nominated by President Trump.

So I began my evaluation of Judge Kavanaugh’s nomination by reviewing his 12-year record on the DC Circuit Court of Appeals, including his more than 300 opinions and his many speeches and law review articles. Nineteen attorneys, including lawyers from the non-partisan Congressional Research Service, briefed me many times each week and assisted me in evaluating the judge’s extensive record. I met with Judge Kavanaugh for more than two hours in my office. I listened carefully to the testimony at the Committee hearings. I spoke with people who knew him personally, such as Condoleezza Rice and many others. And, I talked with Judge Kavanaugh a second time by phone for another hour to ask him very specific additional questions.

I have also met with thousands of my constituents, both advocates and many opponents, regarding Judge Kavanaugh. One concern that I frequently heard was that Judge Kavanaugh would be likely to eliminate the Affordable Care Act’s (ACA) vital protections for people with preexisting conditions. I disagree with this contention. In a dissent in Seven-Sky v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow procedural grounds, preserving the law in full. Many experts have said his dissent informed Justice Roberts’ opinion upholding the ACA at the Supreme Court.

Furthermore, Judge Kavanaugh’s approach toward the doctrine of severability is narrow. When a part of a statute is challenged on constitutional grounds, he has argued for severing the invalid clause as surgically as possible while allowing the overall law to remain intact.

This was his approach in his dissent in a case that involved a challenge to the structure of the Consumer Financial Protection Bureau (PPH v. CFPB). In his dissent, Judge Kavanaugh argued for “severing any problematic portions while leaving the remainder intact.” Given the current challenges to the ACA, proponents, including myself, of protections for people with pre-existing conditions should want a Justice who would take just this kind of approach.

Another assertion I have heard often is that Judge Kavanaugh cannot be trusted if a case involving alleged wrongdoing by the President were to come before the Court. The basis for this argument seems to be two-fold. First, Judge Kavanaugh has written that he believes that Congress should enact legislation to protect presidents from criminal prosecution or civil liability while in office. Mr. President, I believe opponents miss the mark on this issue. The fact that Judge Kavanaugh offered this legislative proposal suggests that he believes that the President does not have such protection currently.

Second, there are some who argue that given the current Special Counsel investigation, President Trump should not even be allowed to nominate a justice. That argument ignores our recent history. President Clinton, in 1993, nominated Justice Ginsburg after the Whitewater investigation was already underway. And she was confirmed 96-3. The next year, just three months after Independent Counsel Robert Fiske was named to lead the Whitewater investigation, President Clinton nominated Justice Breyer. He was confirmed 87-9.

Supreme Court Justices have not hesitated to rule against the presidents who have nominated them. Perhaps most notably in United States v. Nixon, three Nixon appointees who heard the case joined the unanimous opinion against him.

Judge Kavanaugh has been unequivocal in his belief that no president is above the law. He has stated that Marbury v. Madison, Youngstown Steel v. Sawyer and United States v. Nixon are three of the four greatest Supreme Court cases in history. What do they have in common? Each of them is a case where the Court served as a check on presidential power. And I would note that the fourth case that Judge Kavanaugh has pointed to as the greatest in history was Brown v Board of Education.

One Kavanaugh decision illustrates the point about the check on presidential power directly. He wrote the opinion in Hamdan v. United States, a case that challenged the Bush Administration’s military commission prosecution of an associate of Osama Bin Laden. This conviction was very important to the Bush Administration, but Judge Kavanaugh, who had been appointed to the DC Circuit by President Bush and had worked in President Bush’s White House, ruled that the conviction was unlawful. As he explained during the hearing, “We don’t make decisions based on who people are, or their policy preferences, or the moment. We base decisions on the law….”

Others I met with have expressed concerns that Justice Kennedy’s retirement threatens the right of same sex couples to marry. Yet, Judge Kavanaugh described the Obergefell decision, which legalized same gender marriages, as an important landmark precedent. He also cited Justice Kennedy’s recent Masterpiece Cakeshop opinion for the Court’s majority stating that: “The days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court.”

Others have suggested that the judge holds extreme views on birth control. In one case, Judge Kavanaugh incurred the disfavor of both sides of the political spectrum for seeking to ensure the availability of contraceptive services for women while minimizing the involvement of employers with religious objections. Although his critics frequently overlook this point, Judge Kavanaugh’s dissent rejected arguments that the government did not have a compelling interest in facilitating access to contraception. In fact, he wrote that the Supreme Court precedent “strongly suggested” that there was a “compelling interest” in facilitating access to birth control.

There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me.

To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself. He believes that precedent “is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.” In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.

The judge further explained that precedent provides stability, predictability, reliance, and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court in Brown v. Board of Education overruled Plessy v. Ferguson, correcting a “grievously wrong” decision-- to use the judge’s term-- allowing racial inequality. But, someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is “grievously wrong” or “deeply inconsistent with the law.” Those are Judge Kavanaugh’s phrases.

As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight such that precedent can’t be trimmed or narrowed simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.

Noting that Roe v. Wade was decided 45 years ago, and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe eight years later. In describing Griswold as “settled law,” Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today. Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as “precedent on precedent.” When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said “no.”

Opponents frequently cite then-candidate Donald Trump’s campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all presidential campaigns has included this pledge since at least 1980. During this time, Republican presidents have appointed Justices O’Connor, Souter, and Kennedy to the Supreme Court. These are the very three justices-- Republican president appointed justices-- who authored the Casey decision, which reaffirmed Roe. Furthermore, pro-choice groups vigorously opposed each of these justices’ nominations. Incredibly, they even circulated buttons with the slogan “Stop Souter Or Women Will Die!” Just two years later, Justice Souter coauthored the Casey opinion, reaffirming a woman’s right to choose. Suffice it to say, prominent advocacy organizations have been wrong.

These same interest groups have speculated that Judge Kavanaugh was selected to do the bidding of conservative ideologues, despite his record of judicial independence. I asked the judge point blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, or to any outside group on how he would decide cases. He unequivocally assured me he had not.

Judge Kavanaugh has received rave reviews for his 12-year track record as a judge, including for his judicial temperament. The American Bar Association (ABA) gave him its highest possible rating. Its Standing Committee on the Federal Judiciary conducted an extraordinarily thorough assessment, soliciting input from almost 500 people, including his judicial colleagues. The ABA concluded that “his integrity, judicial temperament, and professional competence met the highest standard.”

Lisa Blatt, who has argued more cases before the Supreme Court than any other woman in history, testified: “By any objective measure, Judge Kavanaugh is clearly qualified to serve on the Supreme Court.” “His opinions are invariably thoughtful and fair….” Ms. Blatt, who clerked for and is an ardent admirer of Justice Ginsburg, and who is, in her own words, “an unapologetic defender of a woman’s right to choose,” said that Judge Kavanaugh “fit[s] in the mainstream of legal thought.” She also observed that “Judge Kavanaugh is remarkably committed to promoting women in the legal profession.”

That Judge Kavanaugh is more of a centrist than some of his critics maintain is reflected in the fact that he and Chief Judge Merrick Garland voted the same way in 93 percent of the cases that they heard together. Indeed, Chief Judge Garland joined in more than 96 percent of the majority opinions authored by Judge Kavanaugh, dissenting only once.