U.S. Supreme Court

Sherpa Kyl Says Supreme Court Nominee Kavanaugh’s Done “Very Good Job”, Ready For Confirmation Hearing Tomorrow

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(Originally posted at ArizonasPolitics.com)

Former Arizona Senator Jon Kyl has been Brett Kavanaugh’s “sherpa” for his nomination to the U.S. Supreme Court. On the eve of Tuesday’s confirmation hearing, Kyl tells Arizona’s Politics this weekend that Kavanaugh “has done a very good job in his ‘interviews'”. Kyl also says that he has not been involved in the White House’s decision-making process on which documents should be made public for the confirmation battle.

Evan Vucci (AP)

In an email to Arizona’s Politics, Kyl said that that document production “is handled by White House Counsel” (currently, Don McGahn). The longtime Arizona lawmaker has been involved in “helping follow up on questions, etc” after their meetings with Senators. “I believe he has done a very good job in his ‘interviews’.”Democratic Senators on the Judiciary Committee are protesting last week’s decision by the White House to assert executive privilege on some 100,000 pages of documents from Kavanaugh’s record while he worked for the Bush Administration.* They are insisting that documents currently marked “Committee Confidential” be publicly released in order to question the nominee about them.

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September forecast: possible government shutdown over Trump’s border wall

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Martin Longman at the Political Animal blog brings up a topic no one is currently talking about, but should rightly be concerned about. Will the Government Shut Down in October?

Stan Collender, who is one of the best analysts on the congressional budgeting process, has put up a doomsday clock at his blog. It says that the Republicans have 69 days left before the government shuts down again, but the real number is less than half of that when you take into account weekends, vacations, and days when no votes are scheduled.

Or as the POLITICO Playbook correctly pointed out this morning, 14 legislative days until the government shuts down:

IT MIGHT PUT YOUR MIND at ease that August recess is around the corner, but Congress has 14 legislative days before the government shuts down Sept. 30. Yes, just 14 legislative days — including today — in session to pass a bill to keep the government open.

If you talk to top Republicans privately, they’ll brush it off, and say that there is no way PRESIDENT DONALD TRUMP will want a confrontation roughly a month before the election in order to get money for his border wall. A down payment to continue to build the wall will be enough to keep Trump happy, some top Republicans say.

Can they be so certain?

IT DOESN’T TAKE MUCH IMAGINATION to see the president unhappy with a small pot of money for his signature wall. If the right goes crazy, saying Congress isn’t backing the president’s top immigration proposal, the president might get riled up. Remember: last time the president threatened to veto a spending bill his own staff had a hand in negotiating. Republicans will also be on the brink of electing new congressional leaders, which adds another complication into the mix. There isn’t much room for error, as you can see. And the president and his advisers believe that his immigration policy is a net positive for Republicans across the country.

OF COURSE, the uncomfortable reality for Republicans is that they will almost certainly need Democratic votes to get a government-funding bill across the finish line. And there are a healthy number of Democrats who don’t want Trump to have any money for his border wall.

MOST LIKELY at this point: Congress will try to use September to pass a stop-gap measure to fund government until the end of 2018.

“Stan Collender puts the odds of a October 1st shutdown at 60 percent.” Collender clearly has little confidence in this miserable do-nothing GOP Congress and an increasingly erratic and unpredictable president.

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Judge Brett Kavanaugh on separation of powers (Part 2)

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There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 2009 Minnesota Law Review article Separation of Powers During the Forty- Fourth Presidency and Beyond Copyright © 2009 by Brett M. Kavanaugh (selected excerpts):

Based on my experience in the White House and the Justice Department, in the independent counsel’s office, in the judicial branch as a law clerk and now a judge, and as a teacher of separation of powers law, I have developed a few specific ideas for alleviating some of the problems we have seen arise over the last sixteen years. I believe these proposals would create a more effective and efficient federal government, consistent with the purposes of our Constitution as outlined in the Preamble. Fully justifying these ideas would require writing a book—and probably more than one. My goal in this forum is far more modest: to identify problems worthy of additional attention, sketch out some possible solutions, and call for further discussion.

I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS

First, my chief takeaway from working in the White House for five-and-a-half years—and particularly from my nearly three years of work as Staff Secretary, when I was fortunate to travel the country and the world with President Bush—is that the job of President is far more difficult than any other civilian position in government. It frankly makes being a member of Congress or the judiciary look rather easy by comparison. The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible. There are not eight other colleagues (as there are on the Supreme Court), or ninety-nine other colleagues (as there are in the Senate), or 434 other colleagues (as there are in the House). There is no review panel for presidential decisions and few opportunities for do-overs. The President alone makes the most important decisions. It is true that presidents carve out occasional free time to exercise or read or attend social events. But don’t be fooled. The job and the pressure never stop. We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is. At the end of the Clinton presidency, John Harris wrote an excellent book about President Clinton entitled The Survivor. I have come to think that the book’s title is an accurate description for all presidents in the modern era.

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Judge Kavanaugh provided misleading testimony in his previous confirmation hearing

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Lost in the media memory hole is the fact that Brett Kavanaugh, then an adviser to President George W. Bush and one of his most controversial judicial appointees, had to go through the nomination process twice because of strenuous objection to his nomination, once in 2004 and again in 2006.

Roll Call recently reported, Democratic Senators Once Accused Potential Trump SCOTUS Pick of Offering Misleading Testimony:

Senators might find themselves debating whether the judge gave false testimony about detainee policy the last time he had a confirmation hearing.

That is in part because the two senators who suggested Kavanaugh may have misled them still serve on the Judiciary Committee.

Kavanaugh’s potential connection to the detention policies in the early 2000s stems from his work as a lawyer in the White House during the George W. Bush administration.

The question of what Kavanaugh knew about the interrogation programs was a topic of discussion during Senate consideration of his nomination to be a judge on the U.S. Court of Appeals for the D.C. Circuit.

Illinois Democratic Sen. Richard J. Durbin, the current minority whip and a long time member of the Judiciary Committee, asked Kavanaugh back in 2006 what he knew about the involvement of William J. Haynes II, who had been a Bush nominee for a Fourth Circuit seat, in developing detainee policies.

“Senator, I did not — I was not involved and am not involved in the questions about the rules governing detention of combatants — and so I do not have the involvement with that,” Kavanaugh said back in May 2006.

Kavanaugh was confirmed. But the following year, news reports established that this answer was misleading at best, and lying to Congress at worst. NPR reported in 2007, Federal Judge Downplayed Role in Detainee Cases:

One of President Bush’s most controversial judicial appointees, Brett Kavanaugh, may have been less-than-forthright with Congress at a crucial hearing last year to confirm his appointment to a seat on the powerful federal appeals court in Washington, D.C.

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The Lisa Murkowski and Susan Collins gambit – leave the GOP

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Democrats have mounted a campaign against Trump’s Supreme Court nominee by targeting two Republican senators, Lisa Murkowski of Alaska and the mythical moderate from Maine, Susan Collins.

If our lives depends on Susan Collins, we’re fucked. Remember how she traded her vote on the GOP tax cut for corporations and plutocrats for her bills to secure subsidies for Obamacare health insurance plans in the federal budget? Yeah, she totally got played by Mitch McConnell — or did she? Was it all just a charade to maintain her mythical moderate persona? — her bills were not included in the federal budget.

And on Saturday, the Trump administration halted billions of dollars in annual payments required under the law to even out the cost to insurers whose customers need expensive medical services. Health Insurers Warn of Market Turmoil as Trump Suspends Billions in Payments.  Another epic failure by the mythical moderate from Maine. Thanks for nothing, lady.

Joan McCarter at Daily Kos asks the pointed question, Once again we have to ask: is Susan Collins a liar, or just stupid?

Republican Sen. Susan Collins is steadfastly playing dumb about whether or not she’ll vote for a Supreme Court nominee from the current occupier of the Oval Office. She’s relying, apparently, on the misguided belief that her constituents are stupid.

“I think I’ve made it pretty clear,” she told MSNBC Wednesday, “that if a nominee has demonstrated hostility to Roe v. Wade and has said that they are not going to abide by that long-standing precedent, that I could not support that nominee.” And what everybody is that Trump is working off of a pre-approved list on which every potential nominee has been screened for their adherence to extreme right-wing ideology, including hostility to abortion. Collins is continuing to try to pretend that if the nominee hasn’t said it out loud, they won’t do it.

Here’s the thing: no Supreme Court nominee has ever said out loud that they would not abide by any long-standing precedent, but especially Roe. Because they wouldn’t get confirmed that way. And the far right knows that. They rely upon the stealth of their nominees. Despite past performance, Collins isn’t so stupid that she doesn’t know that very well.

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