How the Left’s Argument Against Kavanaugh Fell Apart in 3 Easy Steps | NTK Network How the Left’s Argument Against Kavanaugh Fell Apart in 3 Easy Steps

How the Left’s Argument Against Kavanaugh Fell Apart in 3 Easy Steps

A series of fact-checks are putting Kavanaugh’s words in context and putting Democrats in a pickle.

By NTK Staff | 07.11.2018 @10:15am
How the Left’s Argument Against Kavanaugh Fell Apart in 3 Easy Steps

Moments after President Trump nominated Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy, partisan Democrats began crafting a false narrative about the judge’s previous opinions and rulings.

Democrats’ argument is that a 2009 Minnesota Law Review article that Kavanaugh wrote, arguing that civil and criminal cases against a president should be deferred until after his term has ended – combined with the fact that he was nominated by Trump – poses a conflict of interest to Kavanaugh, should the Russia investigation come before the Supreme Court.

But as a series of stories published in the past 24 hours shows, this argument concocted by Democrats is utterly false.

1.It was a policy recommendation, not an interpretation of law.

Supreme Court justices are tasked with one simple job: interpret the law. As Asha Rangappa, a senior lecturer at the Jackson Institute for Global Affairs at Yale University and former FBI agent, says in a Washington Post piece, Kavanaugh was simply making a policy recommendation:

Kavanaugh’s law review article does not reach legal conclusions on issues regarding civil and criminal cases involving a president. … Kavanaugh recommends that Congress pass a law deferring such cases until the president’s term is complete. The proposal that Congress should enact legislation protecting the president is important, as it undercuts the allegation that he is predisposed to rule in favor of Trump as a constitutional matter. At most, he is implying that the Constitution does not, on its own, afford such protection — but his article remains agnostic on that question.

2. Kavanaugh was actually making the opposite argument than the one Democrats claim.

While Democrats attempt to paint Kavanaugh’s writings as some kind of get-out-of-jail-free card for Trump, the fact is, Kavanaugh argued for strengthening special counsel’s abilities to do their jobs. A colleague of Kavanaugh’s, Benjamin Wittes, wrote the following:

Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump.

3. Democrats are ignoring important distinctions in legalese.

The Washington Post published a fact-check that blasted Democrats like Demand Justice’s Brian Fallon (formerly Hillary Clinton’s spokesman), Rep. Carolyn B. Maloney (D-NY), and Alexandria Ocasio-Cortez for “extreme distortion[s]” of Kavanaugh’s words, painting his views in a negative light. These liberals are misinterpreting, perhaps deliberately, important distinctions in Kavanaugh’s writing, such as the difference between something that “shouldn’t” happen and something that “can’t.”

But Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed. Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law.

We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.

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