Less than 24 hours after President Trump announced Brett Kavanaugh as his pick to replace Justice Anthony Kennedy on the United States Supreme Court, conspiracy theories began to abound about the prospective justice.
First we have the theory that Kavanaugh’s pick was somehow engineered by a backroom deal with Kennedy, who supposedly gave the White House a heads-up on the condition that his former clerk got the nod. There is, however, no hard evidence of such a quid pro quo agreement between Trump and Kennedy. The reporter who originally floated the story on Twitter deleted her tweet with a retraction.
Then we have the related theory that Kennedy is some sort of undercover Trump ally. This one was actually tweeted out by Neera Tanden, president of the Center for American Progress, a far-left think tank. According to this theory, Kennedy is in the tank for Trump, evidenced by the fact that Kennedy’s son gave Trump a loan back in the day.
National Review’s Charles C.W. Cooke lays it all out here. And here’s where left-leaning Slate debunked the idea before Kavanaugh was even named, accurately calling it a “sad delusion.”
Last but certainly not least, there’s the theory that Kavanaugh rose to the top because of a 2009 legal article he wrote that says that a president shouldn’t be subject to civil criminal investigations while in office – that investigations should be left until after his tenure.
The suggestion here is that Kavanaugh therefore believes in an imperial presidency that will be immune to the findings of the never-ending Russia probe headed up by special counsel Robert Mueller. Therefore, it continues, Trump’s nomination of this particular judge is an “extraordinary” conflict of interest and would-be Justice Kavanaugh would have to recuse himself from any and all cases stemming from Mueller’s findings. Yes, it’s a Russia theory.
There are two major problems with this theory.
First and foremost, Kavanaugh doesn’t argue for a chief executive free of checks and balances. He merely says that civil and criminal legal fights are lengthy and distracting in nature and recommends that Congress pass a law to put these sorts of things off until after the term is over, not that a sitting president cannot be indicted (though the DOJ has said that). If you don’t believe that, just check out this op-ed from a former FBI agent at the Washington Post or this one over at Bloomberg from a former clerk of Justice David Souter’s.
Secondly, Kavanaugh himself has actually investigated a sitting president when he was part of Ken Starr’s special counsel investigation of President Bill Clinton, who was eventually impeached by the House as a result of the findings of said investigation. It’s laughable to believe that Kavanaugh would find his own professional actions unconstitutional.
But there is one theory that does make some sense here.
Maybe, just maybe, a duly elected Republican president who ran and won against an immensely unlikable Democratic candidate did what presidents do and nominated a judge with a long and hefty legal resume to fill a vacant seat on the Supreme Court — a role and prerogative afforded him by that Constitution thingy people are always talking about. Given, it’s far less salacious than a narrative ripped straight from the pages of a paperback political thriller, but that’s what the facts point to right now.
The irony of the tinfoil-hat theories, the total political war being waged, and the outlandish hyperbole aimed at Kavanaugh is that he wasn’t even the first choice for many grassroots conservative activists, commentators, and organizations, who have their own valid set of concerns. The first-pick judge was Amy Coney Barrett, who may yet get her own shot at trying out for “the Supremes.”
That is to say, the only thing apparently standing between millions of left-leaning Americans and the need for involuntary, inpatient psychiatric care is the continued service of Justices Ruth Bader Ginsburg (age 85) and Stephen Breyer (age 79) on the highest court in the land.