Brett Kavanaugh's Cliches

Donald Trump as well as Brett Kavanaugh offered the American people 2 clichés when describing how Supreme Court justices should cause upward one's heed cases.  The outset is that they must translate the Constitution every bit written.  The instant is that they should operate mutual sense.  One problem is that inward many of import cases the 2 conflict.  The to a greater extent than serious employment is that when the 2 conflict, Kavanaugh ever selects the alternative that promotes Republican policies as well as politics.

The Constitution every bit written belies Kavanaugh’s claims that sitting (Republican) presidents cannot last indicted.  No provision inward the Constitution explicitly forbids the indictment of a sitting president.  No provision was self-consciously intended to forbid the indictment of a sitting president.  Of course, an indictment would interfere amongst presidential duties, but indictments too interfere amongst the duties of every federal officeholder mentioned inward the Constitution, every federal officeholder non mentioned inward the Constitution, every individual somebody whose actions are of outcome to the federal government, every terra firma official (did someone enjoin 10^th Amendment), as well as every individual somebody whose actions are of outcome to terra firma governments.  For that matter, if nosotros are worried virtually a distracted president, as well as thence the president’s family, friends, as well as businesses should last immune to criminal processes.  We ought non position downward the president’s domestic dog for fearfulness of upsetting the president, fifty-fifty if the domestic dog has rabies as well as has been biting children.  Common feel permits us to brand about distinctions, but none of these distinctions are rooted inward the Constitution every bit written.

If, however, mutual feel is our guide, as well as thence Kavanaugh’s claims that persons bring a Second Amendment correct to acquit gear upward on weapons as well as that the federal regime may foreclose a rattling meaning alien teenager from having an abortion autumn yesteryear the wayside.  Common feel as well as the English linguistic communication language brand clear that something called an “assault rifle” is non primarily a defensive weapon.  Common feel as well as basic human decency brand clear that i should non delay abortions for rattling meaning frightened teenagers, especially those who bring a express agreement of the medical organisation inward the United States.  The Constitution every bit written mightiness last construed to defy mutual sense, but the arguments for gear upward on weapons as well as forcing meaning teenagers to give-up the ghost mothers are rooted alone inward the written Constitution, non mutual sense.

These contradictions bother neither Trump nor Kavanaugh.  When the Constitution every bit written interferes amongst Republican policies, they struggle mutual sense.  When mutual feel interferes amongst Republican policies, they struggle the Constitution every bit written.  When both are inconsistent amongst Republican policies as well as politics, no uncertainty a unlike cliche volition last trotted out.  That Trump select the only jurist on the curt listing whose career exterior the courtroom was devoted to the single-minded pursuit of Republican political party policies as well as politics says far to a greater extent than virtually would-be Justice Kavanaugh’s judicial commitments than the clichés uttered when he was nominated.

UPDATE:  Several people bring noted that the Minnesota Law Review article inward inquiry declares only that Kavanaugh has "serious questions" virtually whether a president tin last criminally indicted.  But, the rattling slightly modified version of the declaration goes, a textualist ought non bring serious questions, since the text nowhere indicates presidential (or congressional or judicial) immunity from criminal process.  Such immunity mightiness brand mutual feel as well as mightiness last consistent amongst purposive interpretation, but as well as thence nosotros are discussing judicial discretion rather than calling balls as well as strikes.