WASHINGTON — By making federal appeals court Judge Brett Kavanaugh his Supreme Court pick, President Donald Trump selected someone who already once secured votes from GOP swing Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska (back in 2006). What’s more, key Democratic red-state senators like Joe Donnelly, D-Ind., Heidi Heitkamp, D-N.D., and Joe Manchin, D-W.V., released statements Monday saying they’d keep an open mind about Kavanaugh.
Add it all up and it’s very possible that, in the current 51-49 Senate, Kavanaugh could match the 54-45 confirmation vote that Neil Gorsuch got in 2017.
But there’s one significant wild card to Trump picking Kavanaugh: the Mueller probe.
And if there’s a big development in the investigation — we haven’t really had one since April, when the FBI raided Trump lawyer Michael Cohen’s offices — then Kavanaugh’s 2009 law review article could be an impediment to confirmation.
In the article, Kavanaugh argues that a sitting president shouldn’t distracted by civil lawsuits or criminal investigations while in office. “Having seen first-hand how complex and difficult that job [of president] is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” And he called for Congress to consider passing a law to defer any civil lawsuit or criminal investigation against a president until after he leaves office.
Notably, Kavanaugh doesn’t pass constitutional judgment on this matter. “The result the Supreme Court reached in Clinton v. Jones — that presidents are not constitutionally entitled to deferral of civil suits — may well have been entirely correct; that is beyond the scope of this inquiry.” But he does make his personal opinion clear: “The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
What’s especially striking about Kavanaugh’s opinion in that 2009 law review article is that it contradicts his work for Ken Starr, who investigated President Clinton in the Whitewater/Lewinsky probes.
As we wrote after Justice Anthony Kennedy announced his retirement late last month, what makes this Supreme Court fight different from the ones during the Bush or Obama years is the Mueller probe. The president’s 2016 campaign — and the president himself — is under investigation for its possible ties to Russian interests.
The rest of the story: How the Mueller probe could complicate Kavanaugh’s confirmation