July 11, 2018 | Reading Time: 4 minutes

Is the President Above the Law?

The question at the heart of Chuck Schumer's long-shot plan to block Trump's SCOTUS nominee.

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The Democrats are executing Plan A in the fight over the next US Supreme Court justice. They hope they can block the confirmation of Brett Kavanaugh by using the same strategy that beat the Republicans in their bid to repeal the Affordable Care Act. 

That requires sounding the alarm not only among party regulars but also voters of various stripes concerned about the future of reproductive rights, the cost of health care, pre-existing conditions, gun violence, and others issues. The idea is to pressure so-called moderate Republicans to join a Democratic blockade in the Senate.

But there’s a problem. The gambit assumes all 49 Senate Democrats will hold the line. Given that three are hanging on in states won by President Donald Trump, that’s a bigly big assumption. Even so, Democrats are adept at keeping their jobs in hostile territory. The question should be: What kind of political cover would be necessary for them to block Kavanaugh? What rationale is credible enough to satisfy red-state constituents who’d rather the Democrats get out of the president’s way?

As they did with Obamacare, the Democrats can raise holy hell over bread-and-butter issues imperiled by a conservative court. They can allege that with Kavanaugh, it will declare Obamacare unconstitutional as well as its protections of pre-existing conditions. The Democrats can allege that it will strike down Roe v. Wade, the 1973 landmark ruling that legalized abortion. They can even allege that with Kavanaugh, conservative bloc will overrule state laws banning military-style weapons.

It is no overstatement to say that Kavanaugh’s confirmation will shift the Supreme Court sharply to the right for a generation, putting it out of step with demographic and ideological trends moving the country in the opposite direction. Where the court is concerned, Senate Minority Leader Chuck Schumer is right. Fallout is going to cut across partisan divides. In saying no to Kavanaugh, red-state Democrats can avoid appearing overtly partisan by claiming concern for the welfare of all Americans.

But Schumer’s strategy has another layer.

In addition to bread-and-butter issues, Schumer’s plan is to blow the horn on things around which there is broad consensus. For instance, the idea that no one, not even the president himself, is above the law. To that end, Schumer is going to do what everyone says Senators should do: look at the record, consider the merits of Kavanaugh’s history, and come to a conclusion. The fact of the matter is that Kavanaugh has played both sides, raising legit questions about judicial reasoning.

While working with Ken Starr’s investigation of President Bill Clinton’s behavior, Kavanaugh wrote that “simply delaying testimony before the independent counsel could constitute obstruction of justice,” according to Brian Beutler. “He also argued that lying to White House staff and the public are rightfully impeachable offenses.”

As George W. Bush’s top aide, his “views changed radically,” Beutler wrote. That was when “he’d written a law review article in which he argued that Congress should pass a law immunizing a president from criminal investigation for his term in office.”

The question would seem to be simple. Which is it, Your Honor? Is a president above the law or is he subject to it? Is the law for Democratic presidents but not for Republican ones? Is it OK for a man standing trial to choose his own judge?

Trump’s media allies will undermine this line of inquiry, but it’s hard to imagine a better way to immunize red-state Democrats than by taking the moral, legal and constitutional high ground. Indeed, Chuck Schumer has already begun:

“Why did he stick with Kavanaugh?” he said Tuesday. “Because he’s worried that (Special Counsel Robert) Mueller will go to the court and ask that the president be subpoenaed and ask to do other things necessary to move the investigation forward and President Trump knows that Kavanaugh will be a barrier to preventing that investigation from going there.”

Again, what kind of political cover would be necessary for red-state Democrats and moderate Republicans to block Kavanaugh? Schumer is making an impressive case.

Will it work? I still think it won’t.

It would take just one senator for the blockade to crumble. If one senator falls in line beyond Kavanaugh, the others will have little reason to stick their necks out. In other words, Schumer’s strategy depends on everyone standing firm or no one standing firm, which means it’s an inherently weak strategy. And even if it did work, what then?

Are the Democrats prepared to explain why they are now suddenly fine with eight justices on the court after accusing the Republicans of undermining the republic when they blocked Merrick Garland? And if they succeeded in blocking Kavanaugh, how would that affect the midterm elections? You can argue that in losing the court fight, the Democrats have a better chance of winning the House and Senate.

Whatever happens, and no one knows what’s going to happen, the Democrats are not fighting for immediate gain. Instead, they are, and should be, preparing for the future.

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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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