“The Founders wouldn’t want Kavanaugh’s nomination to continue,” argues Laurence Tribe. Briefly, his argument runs that Supreme Court nominee Brett Kavanaugh might, if confirmed, be called upon to help decide about evidentiary matters that might affect whether Trump is, if impeached, convicted.
This is a weak argument for several reasons.
First, a hypothetical U.S. v. Trump case that a Justice Kavanaugh would have to help judge relies on the veracity of the claims of someone who sounds pretty untrustworthy to begin with, who is under pressure from prosecutors and likely to be opportunistic. And let’s be frank: campaign finance violations or paying off women to keep silent (Trump has been paying people off to keep quiet for ages) are a snooze, regardless of the legal technicalities surrounding them. To most people, the ostensible beneficiaries of the public trust, they are malum prohibitum, in contrast to the malum in se of conniving in the burglary of an opponent’s campaign headquarters. Is the disconnect not obvious? Trump had already won the nomination by shocking actions that flew in the face of all the laws of modern politics. How likely is it that he’d have started thinking these particular women’s stories would derail his election, such that he needed to go out of his usual silence-buying ways to make extra certain they keep quiet? Buying their silence was probably force of habit.
To return to Tribe’s argument, though, it’s extraordinarily unlikely that Trump could seriously influence a Supreme Court decision with a particular nomination. Even if Trump managed to choose from a long-established list of extraordinarily well-qualified candidates the one judge most likely to rule in his favor (which would be amazing sophistication for someone as stupid as Trump’s opponents say he is), it is only one vote. What if otherwise the votes are 4-4? Well, as in the 2000 and 2016 Presidential elections, your real problem is having it be that close a decision in the first place. One wonders what Chief Justice Roberts would say to his old law school professor, Laurence Tribe.
It also seems clear that Supreme Court justices feel, if anything, a need to avoid the appearance of partiality toward the Presidents who appointed them. In the leadup to Nixon’s impeachment, Tribe admits, three of Richard Nixon’s appointees on the Supreme Court voted with their colleagues, 8-0, to force Nixon to surrender the “subpoenaed tapes and documents” making his impeachment more likely, and his fourth appointee, Rehnquist, recused himself.
But that’s different, says Tribe, because politics have gotten so polarized that a similar case today surely would not be unanimous. Coupled with his argument that the Senate should not take up Kavanaugh’s nomination, that’s tantamount to saying that polarization should actually have Constitutional or legislative significance in itself. In any case, the country had already gotten pretty polarized by 1994, the year of the “Contract with America“, when Bill Clinton nominated Stephen Breyer eleven days after Paula Jones filed her sexual-harassment lawsuit against him. At that time there was a decent chance that a serious lawsuit against the President could wind up in the Supreme Court. Of course, Clinton didn’t think he’d be impeached over his tomcatting, but the point is that neither this appointment nor his previous one (Ruth Bader Ginsburg) made any difference at all to the 1997 Supreme Court decision against him. Clinton lost, 9-0.
That, in fact, is quite a common result in the Supreme Court, whether involving Presidents or not, and more common, not less, in recent years. Max Bloom pointed out last year, “The most recent term, in fact, was the least partisan since the middle of the 20th century. Over half of the cases were unanimous, and only 14 percent were decided by a 5–3 or 5–4 split.” Supreme Court justices are in fact famous for unpredictability and uncontrollability by the Presidents that appoint them, going back at least as far as Eisenhower’s remark that he’d made only two errors as President and both of them were on the Supreme Court. In terms of precision tools, Supreme Court nominations make boycotts look like laser scalpels.
Furthermore, implying that things ought to be different because they have gotten so polarized begs the question. Polarization is why Trump is in the White House to begin with, elected by an American public having full knowledge in advance that (in Salena Zito’s words) he has “the morals of an alley cat”. (Is the policy basis for impeachment the removal of a President that the electorate didn’t intend?) And if polarization is the bugaboo, how did we reach this sorry state? To name one reason, because Harvard Law School professors and their logic have very little to do with most Americans these days.
It takes a special brand of Rube Goldberg thinking to go from conjecture to might to possibility to strained argument, though I suppose logical contortions and circumbendibi are an occupational hazard even for law professors who don’t share conspiracy theories about Trump. Perhaps Tribe should have eschewed his strained logic and simply quoted the Supreme Court justice he clerked for: “I know it when I see it.“