WASHINGTON – Minnesota’s two U.S. senators are joining fellow Democrats in raising concerns about Supreme Court nominee Brett Kavanaugh, even as Republicans urge a quick confirmation for the federal appeals court judge.
Democrats are worried that President Donald Trump’s selection, and the more conservative court majority it promises, will undermine the right to abortion and laws guaranteeing access to health care. Some critics also fear that Kavanaugh, if confirmed, could be in a position to undermine special counsel Robert Mueller’s investigation of the Trump presidential campaign — based in part on a 2009 article he published in the Minnesota Law Review, suggesting that investigations of presidents should be deferred until after they leave office.
In that article, Kavanaugh wrote that “the constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions.” He suggested impeachment is the ultimate check on a corrupt president.
Democrats, including Minnesota Sens. Amy Klobuchar and Tina Smith, see a threat to many progressive ideals if Kavanaugh sits on the high court.
Standing on the Supreme Court steps at a Monday night rally, Smith accused Trump of picking the D.C. federal appellate judge from a list drawn up by “far right ideologues” who believe he’ll cast the deciding vote to overturn legalized abortion under Roe v. Wade.
“It’s clear that President Trump, the Heritage Foundation, and the Federalist Society believe they can count on Judge Kavanaugh to cast that decisive fifth vote to overturn Roe, dismantle basic consumer protections in our health care laws, and gut regulations that protect workers and the environment,” Smith said at the rally, according to remarks provided by her office.
In contrast, state Sen. Karin Housley, the Republican running for Smith’s Senate seat in November, called Kavanaugh an “excellent choice.”
“At a time when our nation’s founding principles are increasingly called into question, Judge Kavanaugh will make a tremendous addition to the high court,” Housley said in a statement.
Sen. Amy Klobuchar objected to Kavanaugh’s ruling that the Consumer Financial Protection Bureau was unconstitutional, and his dissenting vote against net neutrality. She’s also concerned about his record on health care — Kavanaugh dissented in a 2011 ruling upholding the constitutionality of the Affordable Care Act’s individual mandate requiring every citizen to have health insurance.
Klobuchar is a member of the Senate Judiciary Committee, which will hold confirmation hearings to vet Kavanaugh. In a statement, she said, “I am also troubled by his views on the separation of powers. As our children are told from the time they go to school — no one is above the law.”
Kavanaugh worked under special prosecutor Kenneth Starr while he was investigating President Bill Clinton in the 1990s. But in his Minnesota Law Review article, he suggested he had changed his mind about the proceedings that led to Clinton’s impeachment.
Kavanaugh wrote that a president who is concerned about an ongoing criminal investigation will do a worse job and suggested that civil suits be deferred until after the president leaves office.
“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,” Kavanaugh wrote.
His article is already drawing some criticism as Trump pushes back at Mueller’s investigation into possible links between the campaign and Russian meddling in the 2016 presidential election.
University of Minnesota law professor Richard Painter, who is challenging Smith in the DFL primary, maintained that nobody should be confirmed as a Supreme Court justice until the Mueller investigation is finished, to avoid a conflict of interest.
“Anyone who thinks the Mueller investigation is not legitimate should not be on the Supreme Court, and certainly shouldn’t be put there by Donald Trump,” said Painter, formerly chief White House ethics lawyer under George W. Bush.
Smith and Klobuchar side with many other Democrats in arguing that Senate Majority Leader Mitch McConnell should hold himself to the same standard he set in 2016, when he did not hold a hearing or vote on President Obama’s nominee, Merrick Garland, during an election year.
Democrats want Republicans to wait until after November’s midterm elections, in hopes that the party may lose its lock on Congress.
But Preya Samsundar, Minnesota communications director for the Republican National Committee, said in an e-mail that Klobuchar and Smith “should put obstructionist politics aside and swiftly confirm President Trump’s nominee.”
Maya Rao • 202-662-7433