Editorial: Two key questions confront Kavanaugh's nomination. Don't expect clear answers

St. Louis Post-Dispatch on

Published in Op Eds

President Donald Trump's Supreme Court nominee, Judge Brett Kavanaugh, can be expected to evade and deflect on the two most important questions that lawmakers, particularly on the Democratic side, want to know: Where does he stand on abortion rights, and does he believe that the president is above the law?

Kavanaugh will be coached to the point of exhaustion on how to avoid definitive answers during upcoming confirmation hearings. The mathematics and timing of this nomination, following last month's resignation of Justice Anthony Kennedy, favor his ascension to the high court.

Trump doesn't deserve to win this nomination without a fight. Senate Democrats would be justified in delaying a confirmation vote, by whatever means necessary, considering the abominable way that Republicans blocked President Barack Obama's nominee from receiving a fair hearing to replace the late Justice Antonin Scalia. The Republican delay, timed specifically to await the result of the November 2016 presidential election, marked a low point in Capitol Hill's increasingly dirty politics.

Democrats deserve the right to demand meetings, seek clarifications and delay using whatever parliamentary procedure available to stall a vote until after the November midterm elections. This would be the payback Senate Majority Leader Mitch McConnell so richly deserves. Still, Democrats shouldn't get their hopes up.

Their nightmare, starting the night of Nov. 8, 2016, underscores why every American vote counts. The Kavanaugh nomination is only the latest reminder that elections have consequences -- sometimes severe ones.

It remains unclear how Kavanaugh, 53, would decide on the divisive issue of abortion. The outlook isn't quite as gloomy as some analysts predicted -- that Kennedy's retirement spelled the end of women's constitutional right to choose. But his addition to the court's conservative majority dramatically increases the possibility of overturning the landmark 1973 Roe v. Wade decision.

That said, Kavanaugh has expressed a commitment to preserving precedent, and overturning Roe certainly would shatter that commitment. There also are indications that other justices could follow Kennedy's example on such key decisions, voting with the liberal side in order to maintain the court's philosophical balance.

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Kavanaugh favors broad presidential powers and opposes judiciary-branch encroachment on executive-branch authority. His stance could be key if the court winds up hearing arguments over Special Counsel Robert Mueller's efforts to prosecute Trump for criminal actions linked to Russian meddling in the 2016 election.

Kavanaugh wrote in 2009: "We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President's job is difficult enough as is. And the country loses when the President's focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution."

That position begs clarification and scrutiny in confirmation hearings. It also could be exactly why Trump chose Kavanaugh. The nomination was a smart move by a president who seems to be running scared from Mueller. But for a nation that believes no one, including the president, is above the law, Kavanaugh might have been the worst possible choice.

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