Feel free to tell yourself that Donald Trump chose Brett Kavanaugh for the Supreme Court because the guy went to Yale (Trump reportedly loves Ivy League creds), or because the guy has been thoroughly vetted by the Heritage Foundation and the Federalist Society (the right-wing groups that have long been funneling conservative judges to the bench).
But if you really want to know why Trump chose Kavanaugh, just check out the article he wrote in 2009 for the Minnesota Law Review. He said that serving presidents should be exempt from all criminal and civil investigations - because they’re just too darned busy doing the people’s business. He teed up his argument on page 1,460:
“I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
Then came this, on page 1,461:
“Congress might consider a law exempting a President - while in office - from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel... Even the lesser burdens of a criminal investigation - including preparing for questioning by criminal investigators - are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
There you have it, folks. Trump has purchased survival insurance.
Yes, Kavanaugh’s ascent will virtually cement a 5-4 conservative majority for decades, tilting America further rightward on everything from civil rights to corporate power, but Trump would’ve punched that ticket by choosing anyone on the Federalist Society’s wish list. As they say at Wharton, Kavanaugh is “value added.” He has the requisite conservative creds, plus he’s on record saying that presidents should be exempt from investigation. Trump’s knowledge of jurisprudence could probably fit in a thimble, but he has a feral instinct for saving himself. Indeed, it has been confirmed in news reports that Trump’s aides flagged that law review article for his edification.
So if or when Robert Mueller’s investigation lands in the laps of the justices, on some crucial point of law, Trump can probably count on Kavanaugh to serve his interests by arguing that Mueller is burdening a very busy man and that therefore Trump shall not deign to honor a Mueller subpoena. That’s the kind of fealty Trump craves.
Senate Democrats, who are virtually powerless to block Kavanaugh’s ascent (in part because some of the red-state Democrats up for re-election could vote Yes), may well argue during the confirmation process that Kavanaugh should recuse himself if he’s confronted with the Mueller probe, or with the current defamation suit that accuses Trump of sexual harassment - on the grounds that he shouldn’t sit on any case that involves the president who nominated him. Good luck making that stick.
By the way, there’s a very funny moment in the Law Review article when Kavanaugh unveils his exempt-the-president argument and quickly adds: “This is not something I necessarily thought in the 1980s or 1990s.” Yeah, no kidding. Because in the 1990s, as a lawyer with a Republican track record, he served on Kenneth Starr’s team, in criminal pursuit of President Clinton.
At one point Kavanaugh told Starr in a memo, “I am strongly opposed to giving the president any break.” So he had no qualms then about investigating a serving president (of the opposing party, anyway). Suffice it to say that he has since changed his mind.
Can Trump count on Kavanaugh’s loyalty when the chips are down? Perhaps the nominee gave us a hint on Monday night, when he thanked Trump for the honor and immediately went into hyperbolic overdrive: “No president has ever consulted more widely, or talked with more people, from more backgrounds, to seek input about a Supreme Court nomination.”
How could he possibly know that? Why should we believe that? If Brett Kavanaugh wants the American people to believe that he’ll function as an independent member of the supposedly independent judiciary, and that he’ll have an open mind when confronted by a potential constitutional crisis, it would surely behoove him not to sound like the daffy doctor who said that Trump was virtually the healthiest human specimen since the dawn of man.
Dick Polman is the national political columnist at WHYY in Philadelphia and a “Writer in Residence” at the University of Pennsylvania. Email him at email@example.com.