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Trump Card: Brett Kavanaugh and the “Unitary Executive” Theory

With this nomination, there is only one ideology that matters.

Supreme Court nominee Brett Kavanaugh listens to Donald Trump announcing his nomination in the East Room of the White House on July 9, 2018, in Washington, DC.

Newly minted Supreme Court nominee Brett Kavanaugh was the kid who took down the names of misbehaving classmates while teacher was out of the room. I do not know this for a fact, but I know it. I know that kid. He’s been polishing apples since God was a baby, and look how far it has taken him.

In mainstream Republican circles, Kavanaugh’s pedigree is the equivalent of being born on Plymouth Rock with a recommendation letter from John Winthrop stuffed in your diaper. Within the realm of post-Reagan Clinton-hating GOP society, he is a product of the rage-flecked devolution that took place in the Olduvai Gorge of Republican politics after the 1992 presidential election. They came out of their crevice different, radicalized, spoiling for war to the knife, and Kavanaugh has been their loyal soldier from the start.

If you were to write a screenplay about some scuzzy little yes-sir right-wing DC hack with beady eyes locked on the big prize, you’d use Brett Kavanaugh as your template. A child of the affluent Maryland suburb of Bethesda, Kavanaugh was classmates at Georgetown Prep with Neil Gorsuch, the fellow currently camped out in what should be Merrick Garland’s Supreme Court seat.

After attending Yale for college and law, Kavanaugh deftly entered the slipstream of modern conservative mayhem politics by joining the Federalist Society, and went to work for then-Solicitor General Ken Starr during the first Bush administration. He headed the investigation into the suicide of Vince Foster, which spawned far-right conspiracy theories that linger to this day.

In 1994, Kavanaugh joined Starr’s legal team during the Whitewater investigation that ultimately led to Monica Lewinsky and the impeachment of President Bill Clinton, and was the principal author of the Starr Report. Kavanaugh was companions with Health and Human Services Secretary Alex Azar and Laura Ingraham, famously of Fox News, and is married to George W. Bush’s former personal secretary.

Kavanaugh even made an appearance in Blinded by the Right, David Brock’s revelatory book about Republican politics in the Clinton era. Brock recounts seeing Kavanaugh, during a gathering at Ingraham’s house, mouth the word “bitch” at a television that was showing an image of Hillary Clinton. Kavanaugh “was a very recognizable type in Washington,” said Brock in an interview, “a young Federalist Society lawyer on the make in the conservative movement. He thought his ticket was helping bring down the Clintons.”

Well, he’s made it, almost. Kavanaugh is 51 Senate votes away from a lifetime gig on the highest perch of US jurisprudence. Decades of conservative effort and an ocean of conservative money, combined with congressional Democrats who missed the boat on the importance of the judiciary back when “Starsky & Hutch” was a thing and are still playing catch-up, have led us to the precipice of a right-wing triumph that will be with us for generations to come.

Despite Donald Trump’s desire to turn the announcement of Kavanaugh’s nomination into a reality show spectacular — I half expected Trump to hand Kavanaugh a rose — the choice ultimately surprised almost exactly nobody. Kavanaugh, a Beltway conservative insider straight out of central casting, has been the front-runner for the nomination ever since Justice Kennedy chose to step down and abandon the future of the nation to Trump’s dumpster-fire priorities.

After 12 years of conservative decisions on the US Court of Appeals for the District of Columbia Circuit, Kavanaugh has left little doubt as to how his rulings from the high court will fall. Of course he will vote to overturn Roe v. Wade if given the opportunity. Of course he will vote to limit gun control laws, because he already has. Of course he will vote in favor of polluters and against net neutrality. Of course he will be a great ally in the GOP’s ongoing war against the right to vote, having written his former court’s majority opinion upholding South Carolina’s scrofulous voter ID law.

Kavanaugh is far more conservative than Justice Kennedy ever was, and will be as reliably right-wing as Justices Gorsuch and Thomas. Add Justice Alito and Chief Justice Roberts to the dogpile, and you have a historically hot mess that will still be burning when my grandchildren are dodging automatic weapons fire before homeroom, because America.

Senate Democrats can try to string out the nomination fight until after the midterm elections, but that strategy depends entirely on retaking the Senate majority. Barring that, they can try to hold their caucus together and convince GOP Senators Collins and Murkowski to also vote “No,” but that is perilous on a pair of fronts: The two Joes — Manchin and Donnelly — along with Heidi Heitkamp are running for their lives in red states (Heitkamp already voted for Gorsuch), and as the tax cut bill vividly showed us, the senators from Maine and Alaska can also be bought if the price is right.

It will be close, but not really. Brett Kavanaugh will soon be an associate justice of the US Supreme Court.

The ultimate reason why Donald Trump tapped Kavanaugh may never be fully known, but if the question appeared on the Big Board at the MGM Grand in Vegas, I’d bet all my worldly possessions on two words: Unitary Executive. See, Trump has no ideology to speak of beyond whatever serves his immediate purposes. His politics are entirely transactional — What do I get out of it? — and with Kavanaugh, Donald Trump gets a breathing “Get Out Of Jail Free” card on the highest court in the land.

Why? Kavanaugh is a devotee of the Unitary Executive theory of government espoused and deployed by Dick Cheney and Donald Rumsfeld during the administration of George W. Bush. The theory is their retaliation for the political defenestration of Richard Nixon, which took place during the larval stage of their political careers and was profoundly transformative for both.

Kavanaugh was appointed to the DC Court of Appeals by Bush because, it was widely whispered at the time, of his support for the idea that presidents should not be sued, investigated, prosecuted or even mildly ruffled in any legal way during their time in office. “National Security” and all that noise, you see.

“Kavanaugh,” reports NPR’s Nina Totenberg, “wrote an extensive law review article in 2009 that could have implications for the special counsel investigation into Russian interference in the 2016 election. In that article, he said that after seeing firsthand the many difficult duties that a president encounters, he thinks, in retrospect, that presidents should operate free from the threat of civil suits — like the sexual harassment suit that led to Clinton’s impeachment — and that presidents should also be free from criminal investigations.”

And there you have it. Why Kavanaugh? Because along with Gorsuch, Thomas, Alito and Roberts, Kavanaugh represents the final inoculation against whatever charges special counsel Robert Mueller is assembling. Trump defies a deposition subpoena? A president cannot be compelled to testify while in office. Collusion with Russia? A president cannot be investigated while in office. Obstruction of justice? A president cannot be prosecuted while in office.

The Unitary Executive theory is airtight in its contra-constitutional concept of an untouchable, all-powerful president. It is the divine right of kings for the 21st century, and in the guise of Brett Kavanaugh and his four conservative compatriots on the high court, it is Donald Trump’s last, best firewall against any legal consequences for his serial misdeeds.

Oddly enough, Kavanaugh’s ties to the Bush clan were, for a small slice of time, a blight on his potential nomination. Famously, neither president Bush voted for Donald Trump in the 2016 presidential election, and the younger Bush has not been shy about voicing his opinion on the actions of the Trump administration. There is no love lost here.

Despite this usually lethal flaw, I believe Trump ultimately chose Kavanaugh precisely because he is a Bush-era Unitary Executive man. The final strangeness in all this is that the approval of Kavanaugh will mean the legacy of George W. Bush — the man history has been trying to forget — will be cemented in the law of the land for all time.

Rod Rosenstein can sleep tight tonight. There is no longer any reason for Trump to fire him, because after all the Senate votes are cast, there will no longer be any reason to fire Mueller. The special counsel can roll the rock all the way to the top of the hill. Kavanaugh and his pals will roll it right back down again.

That’s why Kavanaugh was picked. He fits right into Trump’s immediate purposes. I do not know this for a fact, but I know it.

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