Editor’s Note: Sherrilyn Ifill is the president and director-counsel of the NAACP Legal Defense & Educational Fund Inc. The views expressed in this commentary are hers. View more opinions on CNN.
The ongoing investigation into President Donald Trump’s conduct in the 2016 election is not just an inquiry into whether he or his associates committed crimes. It is a test of America’s commitment to the basic principle that our justice system should treat every citizen equally.
If the US Senate is serious about upholding that principle, it will delay Judge Brett Kavanaugh’s Supreme Court confirmation hearing until special counsel Robert Mueller has completed his investigation. If it does not, it risks tarnishing the Supreme Court and undermining the rule of law – blows from which our nation will not easily recover.
Trump has repeatedly denounced the special counsel’s investigation as a partisan “witch hunt.” But the investigation’s findings so far suggest otherwise. Two of Trump’s former campaign aides and his first national security adviser have all pleaded guilty to federal crimes. The President’s former campaign manager has been convicted of financial fraud. And federal prosecutors recently secured a guilty plea from Trump’s former personal lawyer, Michael Cohen, who said he made illegal campaign finance payments at the direction of then-candidate Trump.
To be sure, we don’t yet know whether the President himself committed any crimes. But until the investigation is finished – and it must be allowed to finish – there exists a real possibility that some related issue, such as the President’s obligation to obey a subpoena, will find its way before the nation’s highest court. If that happens, the American people must be able to trust that each justice will vote according to the dictates of the law and the demands of the Constitution, not out of loyalty to Trump.
The only way to ensure that trust is to refuse to consider any Supreme Court nominee put forth by this administration until the investigation is complete. Ordinary citizens don’t get to appoint the judges that will hear their cases. The President should be treated no differently.
Despite the cloud of legal uncertainty shadowing the President, Senate Republicans are determined to proceed with Kavanaugh’s confirmation hearings. And they are doing so in the most irresponsible way, scrambling to complete the hearings before the National Archives can release even a small fraction of Kavanaugh’s papers.To date, Kavanagh’s opinions from the DC Circuit, all public, have been released, but the White House has withheld 100,000 pages of his record working in George W. Bush’s White House.
Contrary to Republicans’ objections, these documents are extremely relevant, detailing his years of service in Bush’s White House, years which Kavanaugh himself called the “the most interesting and formative” of his pre-judicial career. By rushing confirmation hearings before Kavanaugh’s full record can be thoroughly examined, the Senate leadership is abdicating its constitutional responsibility to advise and consent on a nominee who will shape American jurisprudence for a generation.
Not all of Kavanaugh’s record remains hidden from sight, of course. My colleagues at the NAACP Legal Defense and Educational Fund have spent months scrutinizing Kavanaugh’s judicial opinions, writings and public statements, and they have documented their findings in an exhaustive report. What emerges is an intellectual portrait of a jurist committed to an ultra-conservative philosophy, one that grants the executive extraordinary power and threatens longstanding laws and precedents that protect civil rights in the United States.
These are alarming beliefs, especially now. Kavanaugh has suggested that the President has unlimited power to remove executive branch officers, questioned the 1974 Supreme Court decision that forced Richard Nixon to release the Watergate tapes, and argued that a sitting president should be able to defer civil suits and criminal prosecutions until after he or she leaves office. These are troubling views from a judge who may well be called upon to decide whether a president (the President who appointed him, no less) can withhold evidence or fire a special counsel investigating his conduct.
Kavanaugh seems just as unlikely to stand up to this administration’s tireless assault on civil rights and racial justice. He has promoted the idea that the Constitution is colorblind, thus rejecting decades of Supreme Court precedent that helped to end legalized discrimination in the United States. He also upheld a voter ID law that the Justice Department deemed a threat to the votes of tens of thousands of minority citizens.
Trump has refused to condemn violent white supremacists, and he has repeatedly made false allegations of widespread voter fraud, perpetuating a myth used to disenfranchise Americans of color. Placing Kavanaugh on the bench would lend judicial cover to the Trump administration’s efforts to roll back a half-century of progress and hollow out the Fourteenth Amendment.
The nomination of Kavanaugh to the Supreme Court represents a momentous juncture in our history. With his confirmation in the balance, the Senate has a chance to place country before party, to reaffirm certain principles in these uncertain times: that the public and their representatives have a right to carefully evaluate its judges; that all Americans deserve equal justice; that the United States is a nation of laws, not of men.
These principles will be jeopardized if Kavanaugh is placed on the Supreme Court. That is a steep price, one that will be paid not only by us, but by generations to come. He should not get a hearing, and he should not be confirmed.