No, Brett Kavanaugh Does Not Believe Presidents Are Above the Law


In less than three weeks, opponents of Judge Brett Kavanaugh’s nomination to the Supreme Court have become completely unhinged. Sen. Cory Booker, D-N.J., has actually said that supporting the Kavanaugh nomination means being “complicit” in “evil.”

Here’s how the smear campaign is unfolding.

First, Democrats said silly things like suggesting that Kavanaugh’s purchase of Washington Nationals season tickets on a credit card was some kind of scandal. It actually makes him more like you and me than we thought.

Then they said the confirmation process for Kavanaugh’s nomination should wait until FBI special counsel Robert Mueller’s investigation is complete. That’s like comparing apples and rocks — one has nothing to do with the other.

Most people of common sense expect senators to decide whether to support Kavanaugh’s nomination based on his record — that is, on what he has actually done and said in his professional life. That requires letting Kavanaugh’s record speak for itself.

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Common sense, however, has little to do with the opposition to Kavanaugh. Many Senate Democrats decided to oppose President Donald Trump’s nominee before knowing who it would be. Others announced their opposition to Kavanaugh within hours before anyone could possibly have known much more than how to spell his name. And now, after the fact, they are trying to manipulate his record to fit their opposition narrative.

A big part of that narrative is the claim that, if confirmed to the Supreme Court, Kavanaugh will go easy on the president and let him get away with … (the opponents aren’t exactly clear here). To make this claim, his opponents cite some of his past statements and writings but are making patently false claims about them.

In 2008, for example, Kavanaugh spoke at the University of Minnesota Law School. He had worked in the White House from 2003 to 2006 in a position that allowed him to see the president’s work up close.

Based on that experience, Kavanaugh suggested that Congress consider legislation to delay any lawsuits or investigations that might arise against the president until after he or she leaves office. Yet Kavanaugh specifically said that he had come to no legal conclusions about whether the Constitution protects the president from any legal action whatsoever. Instead, he explicitly rejected the idea of putting the president above the law.

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That’s what Kavanaugh actually said. Democrats and their left-wing allies, with a straight face, claim that Kavanaugh said the opposite, that the president is indeed above the law. The difference between Kavanaugh’s own words and his opponents’ accusations is the difference between yes and no, up and down, east and west.

But a politically useful narrative is a terrible thing to waste, even if it’s false, so Kavanaugh’s opponents are trying again. They are now falsely claiming that he rejects the Supreme Court’s decision in United States v. Nixon, which forced President Richard Nixon to turn over tapes during the Watergate break-in case. Senate Minority Leader Chuck Schumer, D-N.Y., said as much on Monday: “If Kavanaugh would’ve let Nixon off the hook, what is he willing to do for President Trump?”

Kavanaugh’s record shows that claim is baseless.

Senate Democrats don’t want you to know that, before and after becoming a judge, Kavanaugh specifically praised the U.S. v. Nixon decision as one of the most important decisions in Supreme Court history.

In a 1998 law journal article, for example, he wrote that U.S. v. Nixon “reflects the proper balance of the president’s need for confidentiality and the government’s interest in obtaining all relevant evidence for criminal proceedings.” In 2014, he wrote that Nixon was one of the “most significant cases in which the judiciary stood up to the president.”

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Senate Democrats don’t want you to know that, in that 1998 article, Kavanaugh actually proposed ways that Congress could strengthen investigations by independent counsels. They don’t want you to know that in a 2016 speech, he called U.S. v. Nixon one of the “greatest moments in American judicial history.”

The common thread in these attacks — and more are sure to come — is that many Senate Democrats are imposing their own political narrative on Kavanaugh’s record, rather than letting his record speak for itself.

Ironically, these Senate Democrats are treating Kavanaugh’s record the way they prefer activist judges to treat the Constitution. They take its words but impose on those words whatever meaning they want in order to reach a pre-baked political conclusion.

That is not the correct way to interpret the Constitution — and it certainly is no legitimate way to evaluate a judicial nominee.

Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.

A version of this Op-Ed previously appeared on The Daily Signal website under the headline, “No, Brett Kavanaugh Does Not Believe Presidents Are Above the Law.”

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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