Reroute the Process: A Fight for U.S. Democracy

August 30, 2018 Ellen Buchman

Insights from The Opportunity Agenda

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Paul Manafort’s conviction and Michael Cohen’s surprising guilty plea on August 21, highlight not only the rocky legal road ahead for our democracy, but also the incredibly high stakes for our country.

Lost in that breaking news storyline was reference to the Trump Administration’s nomination of Brett Kavanaugh — while under criminal investigation — as an action that pushes us ever closer to a constitutional crisis in this country. That’s mainly because Brett Kavanaugh is the only nominee on record as believing that a sitting president should not be held accountable by an Independent Counsel.

Additionally, it is unconscionable that Senator Chuck Grassley would even consider going forward with a confirmation hearing following the implication of this president in the commission of felonies, according to the statements and guilty pleas entered by his former lawyer.

In nominating Brett Kavanaugh, Trump knows that he could be subpoenaed by Special Counsel Robert Mueller, and it could be Kavanaugh’s swing vote on the high court that would rule on any criminal charges brought against him or his campaign — as well as the Russia investigation that he has smeared and maligned since the start of his presidency.

In addition, Kavanaugh comes from a list of nominees hand-picked by The Federalist Society and The Heritage Foundation, over a bipartisan set of thought partners more representative of America. It is particularly troubling that these institutions also appear to know much more about Brett Kavanaugh and the others they selected than perhaps even the senators who will eventually vote on the nominee. And that’s not only because they selected him as a nominee, but also because of the refusal to hand over the full record of Kavanaugh’s time as White House secretary.

A collision between the Trump Administration and our democracy is certain. This nomination — and recklessly speedy Senate consideration — comes at a time when the president has demonstrated his allegiance to Vladimir Putin while denigrating the U.S. intelligence community, his own Department of Justice, and America’s closest allies, among many others. And it comes at a time when his former lawyer and campaign manager have been found guilty of crimes. And it’s the Kavanaugh nomination that is rolling over our nation’s democratic principles — principles that Trump seems to be seeking to circumvent.

We cannot let this stand.

This critical moment calls for bold strategies — strategies for disrupting the status quo Senate confirmation process through all lawful means necessary, using any and all resources at democracy’s disposal.

So, while Kavanaugh’s record on the issues is – and should be – fully revealed and dissected, we must also keep the end in mind and operate accordingly. This means making the fight against Kavanaugh about more than one seat on the Supreme Court. This is a fight for the foundation of our democracy.

Thus, a primary goal of U.S. senators must be to prevent this president from seating any nominee to the Supreme Court while there is an open investigation into the potential criminal wrongdoings of the Trump Administration. It should be considered aberrant to seat a nominee when our democracy is facing a crisis. Extraordinarily, the nominee we have is someone who cannot be entrusted to uphold the premise that the Supreme Court hold the executive branch accountable.

While Kavanaugh’s route to the bench may be becoming clear, according to Sen. Grassley, we believe that any Trump nominee would be in the constitutionally unacceptable position of being able to rule on critical legal questions relating to a Trump investigation or prosecution, and thus the route must be changed.

We know that, in the seemingly unlikely event that U.S. senators would stand for these principles, at the very least, a blockade of the process must be used to extract a true compromise. This means a candidate who is non-ideological, committed to core separation of powers and constitutional principles, and demonstrably independent of this president.

Rerouting this process is a critical step in stopping the president from despoiling our democracy. Therefore, we are calling for not only preventing Brett Kavanaugh from taking a seat on the Supreme Court, but also for preventing the president from circumventing the constitutional accountability that the framers of our Constitution fully intended in the first place. 

Preserving our democracy depends on nothing short of that.