Brett Kavanaugh Is Impressively Unpopular, But Not With the People Who Will Confirm Him
I have to admit it. Supreme Court nominee Brett Kavanaugh has amassed an impressive amount of unpopularity for a guy nobody’d heard of a month ago. From The Hill:
A Gallup poll released Tuesday found that 41 percent of Americans want to see Kavanaugh confirmed to the bench, while 37 percent of respondents want the Senate to reject his nomination. The four-point advantage for Kavanaugh is the lowest for any of the last 10 nominees since 1987 to be recorded by Gallup. Former Supreme Court nominee Robert Bork previously had the least amount of support in the poll's history, recording a six-point advantage over those who wanted to see his nomination fail when he was first announced in 1987, which it eventually did.
Part of this has to do with the president* who nominated him, I’m sure. And the fact that his nomination looks like a not-too-well-hidden bag-job between the White House and retiring Justice Anthony Kennedy likely carries a bit of an aroma to the public as well. And, of course, none of it matters unless only 41 percent of the U.S. Senate also approves of him when the time comes, and I think that’s still a longshot, because the Senate majority is made up equal parts sleaze and cowardice. Which doesn’t mean we can’t have a little fun along the way.
A video popped Wednesday of the nominee at some American Enterprise Institute hootenanny, at which Kavanaugh expresses the desire to “put the final nail” in the coffin of Morison v. Olson, the 1988 Supreme Court ruling that upheld the constitutionality of the special-counsel provisions that were put in place in the aftermath of Watergate. From CNN:
Asked at an American Enterprise Institute event in March 2016 if he could think of a case that deserved to be overturned, Kavanaugh said: "Yes." Asked if he could specify a case, Kavanaugh first responded: "No," prompting laughter from the audience. He then volunteered this: "Actually, I'm going to say one. Morrison v. Olson. It's been effectively overruled, but I would put the final nail in," according to a video of the event.
The pedant in me demands that I point out that Robert Mueller’s appointment differs from the mechanism that was under attack in 1988. But, still, Kavanaugh’s record on special counsels is truly weird. As has been explained, he was the primary framer of the questions that were geared to elicit the most graphic parts of the Starr Report into the conduct of President Bill Clinton. Then, it is said, he fought against including those details in the final report.
Further, Kavanaugh now famously wrote an article in the Minnesota Law Review in which he described how his views on the constitutionality of indicting a sitting president similarly had changed. An optimist might find in this flea-on-a-griddle thinking a mind capable of evolving and growing.
Me? I see an ambitious guy with plans for the future who, if and when he’s pushed to the wall to defend the president* who nominated him, will leap back into the warm embrace of Antonin Scalia’s absurd “unitary executive” argument by which a president can be investigated only by somebody he also can fire. There’s a flaw in that theory somewhere. I’ll have to think on it a little.
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