Contrary to what supporters say, he’s no originalist.
But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.
.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”
To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.
.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.
But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.
.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.
.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.
.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.
.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away
.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.
Former Nixon counsel John Dean to be witness opposed to Kavanaugh nomination to Supreme Court
In a telephone interview, Dean said he would focus on Kavanaugh’s views on executive power and his statements about the case, U.S. v. Nixon, in which the Supreme Court ruled that Nixon had to turn over secretly recorded White House tapes.
Kavanaugh’s view on the case is murky. He said in a 1999 panel discussion that “maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch . . . that was a huge step with implications to this day that most people do no fully appreciate.”
.. Dean also said he would focus on Kavanaugh’s 2009 Minnesota Law Review article, in which the federal appeals court judge wrote that a president is too busy to be distracted by civil suits and criminal investigation while in office. Kavanaugh’s view has come under scrutiny because he played the lead role in laying out the grounds for impeaching President Bill Clinton when he helped write a report to Congress for independent counsel Kenneth Starr.
.. Democrats are expected to question Kavanaugh about whether he believes that President Trump should be subject to investigation by special counsel Robert S. Mueller III.
.. Democrats have expressed concern that Kavanaugh could be asked to rule on whether Mueller can subpoena Trump and force him to testimony.
Dean, who has said Trump is “more dangerous” than Nixon
.. Republicans announced Thursday that Kavanaugh will be introduced at the hearings by former secretary of state Condoleezza Rice, among others, and a number of his former law clerks and others will testify in his favor. Former solicitor general Theodore Olson is also slated to testify for Republicans.
‘Winter is coming’: Allies fear Trump isn’t prepared for gathering legal storm
President Trump’s advisers and allies are increasingly worried that he has neither the staff nor the strategy to protect himself from a possible Democratic takeover of the House, which would empower the opposition party to shower the administration with subpoenas or even pursue impeachment charges
.. The president and some of his advisers have discussed possibly adding veteran defense attorney Abbe Lowell, who currently represents Trump son-in-law and senior adviser Jared Kushner, to Trump’s personal legal team
..Trump announced Wednesday that
- Donald McGahn will depart as White House counsel this fall, once the Senate confirms Supreme Court nominee Brett M. Kavanaugh. Three of McGahn’s deputies —
- Greg Katsas,
- Uttam Dhillon and
- Makan Delrahim — have departed, and a fourth,
- Stefan Passantino, will have his last day Friday.
That leaves John Eisenberg, who handles national security, as the lone deputy counsel.
.. McGahn and other aides have invoked the prospect of impeachment to persuade the president not to take actions or behave in ways that they believe would hurt him, officials said.
.. Trump has told confidants that some of his aides have highly competent lawyers such as Lowell, who represents Kushner, and William A. Burck, who represents McGahn as well as former White House chief of staff Reince Priebus and former White House chief strategist Stephen K. Bannon.“He wonders why he doesn’t have lawyers like that,” said one person who has discussed the matter with Trump.Another adviser said Trump remarked this year, “I need a lawyer like Abbe.”Giuliani said that he has not heard of Trump considering adding Lowell to the team but that he would be a great choice because of his thorough and aggressive style.“This president might like that better,” Giuliani said. “If he thinks someone isn’t being tough enough, he has a tendency to go out to defend himself. And that’s not good.”
.. “I would think that the type of lawyer most able to handle the impeachment scenario would be someone from the appellate and Supreme Court bar — someone of the Ted Olson or Paul Clement or Andy Pincus level, someone who knows how to make the kind of arguments should it come to a vote in the Senate,” Corallo said.
.. Emmet Flood, a White House lawyer and McGahn ally who handles the special counsel’s Russia investigation, has long been considered a top prospect to replace McGahn.
.. Flood, often described as a lawyer’s lawyer, is in many ways the opposite of Trump and Giuliani, yet the president has told advisers he is impressed by Flood’s legal chops and hard-line positions defending the prerogatives of the White House.
.. White House aides, including deputy chief of staff Johnny DeStefano and political director Bill Stepien, have tried to ratchet down Trump’s expectations for the elections, saying that projections look grim in the House.
.. Another concern is that the White House, which already has struggled in attracting top-caliber talent to staff positions, could face an exodus if Democrats take over the House, because aides fear their mere proximity to the president could place them in legal limbo and possibly result in hefty lawyers’ fees.
“It stops good people from potentially serving because nobody wants to inherit a $400,000 legal bill,” said another Trump adviser.
.. the West Wing staff is barely equipped to handle basic crisis communications functions, such as distributing robust talking points to key surrogates, and question how the operation could handle an impeachment trial or other potential battles.
Trump sees the administration as having a singular focus — him — and therefore is less concerned with the institution of the presidency and not aware of the vast infrastructure often required to protect it, according to some of his allies.
.. Jack Quinn, who served as White House counsel under Clinton, said his office had at least 40 lawyers and as many as 60 during key times.
.. “I appreciate that Rudy Giuliani is doing a lot of the public speaking and perhaps some other things,” Quinn said. But, he added, “it’s a little bit of a mystery to me who is doing the outside legal work.”
Trump Says He Allowed White House Counsel to ‘Fully Cooperate’ With Russia Probe
Rudy Giuliani, the president’s lawyer, said in an interview that Mr. Trump had urged Mr. McGahn to cooperate “because the president is confident that he’ll just tell the truth, and the truth reveals the situation in which the president didn’t do anything wrong.”
“Did he provide anything harmful? The answer is no he didn’t,” Mr. Giuliani said. Mr. Giuliani said if he himself were to interview with Mr. Mueller, “we’d be talking for three to four days. But there would be nothing in it that was harmful to the president.”
.. Last summer, while the investigation was under way, the president sought to fire Mr. Mueller, but backed off when Mr. McGahn said he would resign rather than carry out the order, a person familiar with the matter said.
.. Mr. McGahn was also on the receiving end of a warning in April to the president from Attorney General Jeff Sessions not to fire his deputy, Rod Rosenstein, who is overseeing the Mueller investigation. Mr. Sessions told Mr. McGahn that he would consider resigning if Mr. Trump fired his deputy, according to a person familiar with the message.
.. Mr. McGahn was also involved in conversations with the president as Mr. Trump moved to fire Mr. Comey in May 2017. Days before the firing, Mr. Trump dressed down Mr. McGahn and Steve Bannon, his chief strategist at the time, over Mr. Sessions’ decision to recuse himself from the Russia investigation two months earlier.
.. He is widely expected to leave the White House if and when Brett Kavanaugh, Mr. Trump’s nominee for the Supreme Court vacancy, is confirmed.
.. Mr. McGahn urged other members of the White House Counsel’s Office to use his attorney, according to a person familiar with the matter, a move that left the impression he wanted to ensure his office colleagues gave consistent accounts.