There is no way Republicans will halt their march toward Brett Kavanaugh’s confirmation as an associate justice of the Supreme Court. But if the party still cared about limited government and the rule of law, it would wait until after November to proceed.
I say this with deep reluctance. I was one of few Republicans who objected to the way Senate Majority Leader Mitch McConnell, R-Kentucky, denied a hearing to Merrick Garland when he was nominated to the court by President Barack Obama. I consider myself a conservative — or what used to be called a conservative, before the age of Trump.
But if Republicans cared about any principle they have ever defended before today, they would put Kavanaugh’s confirmation hearings on hold. The reason: We are now in the opening phase of a political crisis brought about by the guilty plea entered in federal court Tuesday by the president’s former lawyer, Michael Cohen.
I am not a lawyer, but I believe the legal experts who have argued that when Cohen stood in court and said he did something illegal “in coordination with and at the direction of” a candidate who could not be anyone other than President Donald Trump, he was clearly implicating the president in serious and knowing criminal behavior. Of course, I also have no idea whether a sitting president can be indicted or prosecuted.
But we are now in political, not legal, territory. The question is whether the members of the U.S. Senate should confirm a nominee who could, sooner rather than later, be sitting in judgment of the same president who nominated him — even as a scandal with huge constitutional ramifications is unfolding in real time.
Trump is now in a position to place a justice on the court who could well end up deciding essential matters as they pertain to the rule of law and to the president personally. This requires a deliberate pause. And yet, the same Republicans who felt Obama had no business nominating a justice so close to an election — as though presidential terms end somewhere short of eight years, as long as the legislative majority says so — are now rushing to confirm a judge whose entire nomination now could represent a gigantic conflict of interest for their own president and party.
So who, then, should decide when Kavanaugh gets a hearing? The answer, as always, should rest with the American people. We are remarkably close to an election, but even if Cohen’s plea deal had broken months ago, there would still be a strong argument for slowing the process. This is not an outcome Republicans should fear: they are likely to hold the Senate anyway, and perhaps putting the Kavanaugh nomination in abeyance for the moment might even help them with GOP voter turnout.
We also might have at least some resolution to the Mueller investigation by November. Having the investigation complete before moving forward on almost any major initiative, let alone a Supreme Court nomination, would be ideal, but special counsel Robert Mueller’s team should be allowed as much time as it needs and the government must continue and function in the meantime. Still, if there are more indictments — as seems likely — they will give the voters and the Congress that much more information before the election and before the lifetime appointment of a new justice.
In any case, there is no way around the reality that there is now a credible accusation, on the record in a federal court, that the current president of the United States may have directed his lawyer to commit two felonies. There is too much here to simply proceed as though this were just another nomination. The voters deserve a chance to weigh in before the Senate rushes to place a justice on the court, one who will still be there decades after Trump is out of office.
The president is the president and commander in chief until Congress or the American people say he’s not. He maintains every power and perquisite of his office until that moment. He has every right to nominate a justice to the Supreme Court. But if the Senate cannot wait roughly 70 days to begin their deliberations, we ought to ask why Republicans feel it is imperative to rush Kavanaugh onto the court, and why, most of all, they will not trust in the judgment of the voters just two years after claiming that only the voters could speak on something as important as a Supreme Court nomination.
Tom Nicols is a professor at the Naval War College and a former Republican aide in the U.S. Senate.
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