Senate should not act on a Supreme Court nominee until Mueller investigation ends

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Washington, July 27, 2018 | comments

Filling the vacancy on the Supreme Court is one of the most consequential decisions of our time. The balance of the court is at stake — as is the health of our democracy. Our courts are a check on power and abuse.

Supreme Court justices have final say on such matters. They must be independent and free from any hint of compromise.

That’s why a president who is the subject of a criminal investigation should not be allowed to choose a Supreme Court justice.

Special counsel Robert Mueller is in the midst of a very serious investigation of the president — an investigation that has reached deep into Trump’s campaign and his administration.

The special counsel’s investigation has already resulted in 35 indictments, including Trump’s former campaign chairman Paul Manafort along with Michael Flynn, the former national security advisor in the Trump administration.

Who’s next? We have no idea who else in this administration, if anyone, could find themselves standing before a judge facing charges.

All the more reason that a Trump nominee to the Supreme Court should not be considered by the Senate until the special counsel has completed its investigation. He or she cannot be beholden to the president.

The Mueller investigation has raised questions about whether presidents can pardon themselves or whether a sitting president can be indicted. Can a president be subpoenaed? What power does the president have in ending an investigation or firing a special counsel?

These are all questions that could come before the Supreme Court. Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Justice Anthony Kennedy, is raising red flags with his thoughts on presidential powers.

I have serious concerns about this nominee and what his appointment could mean for the investigation of the special counsel — an investigation into an attack on our democracy, as well as possible Trump campaign collusion with a foreign government.

In 2009, Judge Kavanaugh wrote in the Minnesota Law Review, “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecution.”

Two years ago, he said he would like to “put the final nail” in the Supreme Court ruling — Morrison v. Olson — that upheld the constitutionality of an independent counsel. Legal experts believe that overturning this ruling could have implications for Mueller’s investigation, including making it easier to fire a special counsel or end an inquiry.

Judge Kavanaugh has called on Congress to pass a law which would shield sitting presidents from criminal investigation or prosecution.

These are chilling comments. When put in the context of the ongoing Mueller probe, the argument to delay the confirmation of Judge Kavanaugh becomes even more compelling.

Judge Kavanaugh is a learned jurist, respected by scholars and his colleagues alike. He has been credited with influencing decisions of the Supreme Court while at the appellate level — a sign of an incredibly skilled judge.

He is a mentor to the women who have clerked in his office, and he was the first D.C. Circuit judge to select all women clerks for the year 2014. Furthermore, Judge Kavanaugh wants diverse ideological opinions among his clerks and also seeks out racial and cultural diversity.

These are admirable qualities; however, it’s his record and his writings that should receive the most scrutiny.

President Trump previously said he would only appoint justices to the Supreme Court who would overturn Roe v. Wade.

Judge Kavanaugh has not heard challenges to state and local laws restricting abortion during his time on the appeals court, although he has referred to former Chief Justice William Rehnquist, who dissented in Roe v. Wade, as a “judicial hero” of his. When he was in law school, Judge Kavanaugh found himself siding with Justice Rehnquist in the cases he read.

His nomination also raises questions as to what is at stake in a number of other issues, such as marriage equality, voting rights and the Affordable Care Act.

In addition to these continually controversial areas, we need to ask what new issues the court will rule on in the decades to come. For example, as technology becomes more and more pervasive, where would a Supreme Court Justice Kavanaugh fall on the side of privacy rights?

To be fair, the Senate should follow the “McConnell Rule” and — as Mitch McConnell did when Justice Scalia’s seat became vacant — wait until after the election before considering a Supreme Court nominee. Let the American people have a voice in who their next justice will be.

I asked my constituents if the Senate should wait and nearly 60 percent said yes.

I also asked if Congress should follow Judge Kavanaugh’s suggestion to enact a law protecting sitting presidents from criminal investigation or prosecution. Nearly three-quarters of my constituents said no.

Paul Schiff Sherman, a law professor at The George Washington University Law School, argued for a delay in The New York Times.

“The importance of checks and balances has never been greater,” Sherman wrote.

I agree. The stakes for this Supreme Court seat are very high. Our democracy, our rights and the strength of our institutions hang in the balance. We need a nominee who is free from any association with a criminal investigation, which won’t happen until the Mueller investigation is over.

This editorial first appeared in San Diego Uptown News.

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