Trump’s nomination of an associate justice is a conflict of interest


Donald Trump, in a disgusting degradation of our constitutional form of government, has once again turned the selection of an associate justice of the U.S. Supreme Court into a reality TV show version of The Bachelor: to whom will he give his rose? Trump Wants Suspense Before Another Reality-Show Reveal:

Trump is determined to keep the world in suspense about this fateful decision before revealing it Monday night on live TV in an approximation of the reality-show format he mastered long before running for president. It is, after all, what he did in naming his first SCOTUS nominee, Neil Gorsuch, in 2017.

Of course, the media is playing along with this by writing numerous speculative pieces about the judges on “the list” from which Trump committed to using from the far-right Federalist Society and the Heritage Foundation. Enough! Don’t play this fool’s game.

The only thing the media should be focused on is “Should a sitting president under investigation for possibly criminal acts be able to appoint the person who will sit in judgment of those acts?” And possibly be the decisive vote, putting Trump’s thumb on the scales of justice?

The answer clearly is “No.” Especially with a president noted for demanding personal loyalty oaths.

Paul Schiff Berman, a professor at George Washington University Law School, writes A Better Reason to Delay Kennedy’s Replacement:

[T]here is another reason to withhold confirmation that both Republicans and Democrats should be able to agree on: People under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.

True, that point is unlikely to stop Mr. McConnell or his colleagues. But it highlights the real risk involved in letting a deeply compromised president shape a court that may one day stand between him and impeachment.

Much of the conversation since Justice Kennedy announced his retirement has been focused on whether a more conservative replacement might lead to the overthrow of landmark decisions on abortion rights, gay marriage and other issues. These are undoubtedly important concerns. But not enough attention has been placed on the crucial question of whether the Supreme Court in the Trump era will provide an effective bulwark against autocratic lawless rule.

Indeed, legal experts are already debating several knotty constitutional questions that involve the president and may one day soon have to be decided by the court. Can the president pardon himself or others specifically to extricate himself from criminal investigation? Can the president be compelled to testify before a grand jury? Can a sitting president be criminally indicted?

Did the appointment of the special counsel somehow violate the Appointments Clause of the Constitution, as some conservatives implausibly insist? Can a president ever obstruct justice? What is the proper legal remedy for Mr. Trump’s repeated violations of the Emoluments Clause? It is no exaggeration to say that never before has the selection of a Supreme Court nominee been so thoroughly compromised by the president’s profound personal interest in appointing a judge he can count on to protect him.

While we cannot know how Justice Kennedy would have ruled on these questions, we do know that at least at times he was willing to stand up to assertions of power by the executive branch, most notably in Boumediene v. Bush, when he wrote a 5-4 decision defying the president and extending the constitutional right of habeas corpus to wartime detainees at Guantánamo Bay.

Mr. Trump’s possible crimes are inextricable from his desire for unilateral control of the federal government. It is no secret that the power of the executive branch has grown over the past several decades, under both Republican and Democratic presidents. Our executive now has surveillance capacities never before seen, vast power to conduct drone strikes and conduct lethal military operations abroad, broad authority to set immigration and law enforcement priorities and the ability to regulate enormous areas of economic and personal life.

Add to this sweeping institutional power a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. This is the perfect recipe for autocracy. In such a world, the importance of checks and balances has never been greater.

This would be dangerous regardless of Mr. Trump’s legal shortcomings. But this president has, by his own admission, already taken steps to thwart an investigation into his own potential criminality. Both Democrats and Republicans in the Senate should therefore resist calls for a quick confirmation process.

Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself. The fact that the president has every motive to ensure that happens — to promote his political agenda and to protect him personally — makes the present moment all the more frightening.

Just as Senator Mitch McConnell’s unprecedented and unconstitutional judicial blockade of President Obama’s nomination of Judge Merick Garland has forever stained the legitimacy of Associate Justice Neil Gorsuch. Republicans are destroying the legitimacy of the Supreme Court in their single-minded ideological pursuit of politicizing the Supreme Court.

As Professor Berman says, Trump should not make this appointment until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.

Failing this, the nominee must make an iron-clad commitment to the Senate that he will recuse himself from any a d all matters regarding the Special Counsel’s investigation of the Trump campaign.

Following Professor Berman’s logic, Senator Cory Booker (D-NJ) is making the argument that No Supreme Court vote until resolution of Trump investigation:

Democrats hoping to at least slow down the process until after the midterm elections will need a stronger pitch, which could credibly serve as the basis for an effective strategy.

They’ll need something like this.

Some Democratic senators and their allies are starting to make the argument that not only should there be no Supreme Court pick until after the November elections, but that there shouldn’t be one at all while the president remains under criminal investigation. […]

During a judiciary committee hearing Thursday, Sen. Cory Booker (D-N.J.) noted that a challenge to the investigation could very well end up before the Supreme Court at some point – potentially creating a conflict of interest for a president who has asked nonpartisan officials for their loyalty.

“If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests, for that person, we could be participating in a process that could undermine that criminal investigation,” Booker said yesterday. “I do not believe [the Senate Judiciary Committee] should or can in good conscience consider a nominee put forward by this president until that investigation is concluded.”

The closer one looks at this position, the more sense it makes.

[A]s the president prepares to choose a high court nominee, the national discussion of this has not yet “caught up to the possibility that if the president himself is alleged by the special counsel’s investigation to have any significant criminal liability in this Russia scandal, that as a matter of law will almost inevitably end up as a matter before the United States Supreme Court – to which he is about to name a new member.”

There’s no shortage of relevant questions for the justices. Can a sitting president pardon himself? Can he be criminally indicted? What power does a president have to dismiss a special counsel during an investigation? These are lines of inquiry the Supreme Court may soon wrestle with.

And Donald Trump’s political life will depend on how the justices answer those questions – which very likely creates a conflict of interest for Donald Trump.

If the special counsel’s investigation ends, and the president – currently a subject of the ongoing probe – faces no allegations of wrongdoing, senators can proceed with the process of considering his Supreme Court nominee.

But in the interim, it’s difficult to defend the idea that Trump should be responsible for choosing a justice who may soon decide his legal fate. Call it the Booker Rule: presidents under criminal investigation have to wait until the matter has run its course before picking Supreme Court justices.

The HuffPost’s report suggests this argument has growing support among Senate Dems, and Harvard Law School’s Lawrence Tribe, among others, endorsed the tack yesterday.

This isn’t about hypocrisy, it’s about a conflict of interest. These are unusual circumstances – American presidents rarely face federal criminal probe – but until they’re resolved, there’s no reason to allow the subject of an investigation to choose a judge who may soon hear his case.

This is a fair and reasonable argument under our system of justice, and the only thing the media should be focused on — not on Trump’s reality TV show rose ceremony.