Tricky Dick Schumer The latest anti-Kavanaugh claims are, well, Nixonian.
https://www.wsj.com/articles/tricky-dick-schumer-1532474954
Spare a thought for Chuck Schumer. The Senate Minority Leader is under enormous political pressure to defeat Supreme Court nominee Brett Kavanaugh, or at least pretend that he’s trying very hard. His strategy so far is to stall for time and compare the nominee to Richard Nixon. Bear with us; you’ll enjoy this.
As expected, Mr. Schumer has demanded millions of documents from Mr. Kavanaugh’s years in government to push a confirmation vote past the November election. The New Yorker has refused even to meet with Mr. Kavanaugh unless Republicans first agree to let Democrats dive through the Bush and Clinton archives. When he was Minority Leader in 2013, Mitch McConnell met with nominee Elena Kagan within two days.
This Democratic sitzkrieg isn’t likely to work. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota have already said they’ll meet with the nominee, date to be determined. Others running for re-election will likely follow as their opponents back home highlight the pettiness of not meeting.
More substantively, Republicans have no reason to agree to what are unreasonable Democratic demands. Judiciary Chairman Chuck Grassley is trying to work out a document deal with ranking Democrat Dianne Feinstein. But Democrats are seeking literally millions of documents from Mr. Kavanaugh’s years as Staff Secretary in the George W. Bush White House that are irrelevant to his views or his qualifications for the Court.
The White House has said it is willing to produce some 80,000 document pages and 200,000 email pages from Mr. Kavanaugh’s time in the White House counsel’s office. This is more than the 173,000 pages produced for Justice Kagan’s White House service, and the 182,000 pages for Neil Gorsuch’s time in the George W. Bush Justice Department.
The Obama Administration produced no documents from Justice Kagan’s years in the Solicitor General’s office. The reason was that such documents were said to be the crown jewels of the executive branch’s deliberations on legal issues. They surely would have been relevant to how Justice Kagan would rule on the bench, but failing to turn those over is a precedent.
Documents from Mr. Kavanaugh’s time as White House Staff Secretary weren’t created by him and would say little or nothing definitive about his views on the issues. The Staff Secretary’s job is to channel to the President the work product of the rest of the White House and government. The documents relate to Mr. Bush’s decisions, not Judge Kavanaugh’s.
If Democrats want to examine a relevant record, they have more than 300 of his judicial opinions to inspect. When she was nominated, Ms. Kagan had none. Mr. Grassley stands on solid ground if he chooses to limit the document search on Mr. Kavanaugh to the standard that prevailed for Justice Kagan.
Which brings us to Mr. Schumer’s resort to Dick Nixon, which suggests he’s getting desperate. Mr. Kavanaugh submitted his speeches, opinions and other writings to the Judiciary Committee last week, and it included the transcript of an exchange about U.S. v. Nixon, the famous 8-0 ruling in which the Supreme Court ordered President Nixon to turn the Watergate tapes over to a federal court.
In a 1999 panel discussion with Bill Clinton’s defense team, Mr. Kavanaugh pointed out that the executive privilege arguments used by President Clinton were similar to those used by Nixon in the tapes case. He then argued that a Clinton lawyer on the panel had “not argued that Nixon was wrongly decided,” adding “but maybe Nixon was wrongly decided, heresy though it is to say so.”
Mr. Schumer jumped on these snippets to charge on Monday that “if Kavanaugh would have let Nixon off the hook, what is he willing to do for President Trump ?”
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The answer is that Mr. Kavanaugh wouldn’t have left Nixon off the hook and he’s certainly willing to hold Presidents accountable under the law. It’s clear from the context of the 1999 discussion that Mr. Kavanaugh was debating the compatibility of the Clinton arguments with the Nixon case, not his views of the 8-0 ruling on the merits.
The nominee’s views are clear from other statements over the years in which he has supported Nixon. In a 2014 speech Judge Kavanaugh called the ruling one of the three “most significant cases in which the judiciary stood up to the President,” along with Marbury v. Madison and the Youngstown steel case.
In a 1998 law review article, Mr. Kavanaugh said there is “no need to revisit” Nixon and that it should not be overruled. He added that the ruling “reflects the proper balance of the President’s need for confidentiality and the government’s interest in obtaining all relevant evidence for criminal proceedings.”
Ken Starr and others who worked with Mr. Kavanaugh in the independent counsel’s office in the 1990s have also said that the nominee supported the Nixon ruling.
The political point of all this is that Republicans shouldn’t be the least bit defensive about Judge Kavanaugh’s record, and Mr. Grassley has good reasons to limit a document search. Mr. Schumer is the fellow who is employing some Nixonian deception.
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