Supreme Court nominee Brett Kavanagh faced a lengthy grilling at the capitol on Wednesday. Kavanagh refused to address a question by one of the panelists whether a sitting president should be subpoenaed. This is perhaps one of the most contentious issues raised so far. The fact that the Supreme Court nominee decided to avoid the question raised some eyebrows among Democratic lawmakers who have made it clear that they won’t support his nomination.
This was the second day of questioning by the Judiciary Committee after the confirmation hearing was disrupted by partisan politicking and protesters on the first day. Kavanaugh said that the question of whether the president can be subpoenaed or not was entirely hypothetical and he didn’t feel confident answering it. The response was important particularly because a presidential subpoena is one of the most likely outcomes of the ongoing investigation about Russian interference in the 2016 election by special counsel Robert Mueller.
The Trump legal team has also issued stern rebuff against any possibility of a subpoena for the president. They have also said that they will use all available legal means to stop such action. The Supreme Court could be one of these means and Brett Kavanaugh, if confirmed, could have significant sway on the direction the Mueller probe will take.
Kavanaugh has shown with his own opinions that a sitting president cannot be indicted. In one article written a few years back, the Supreme Court nominee argued that an indictment of the president could pose significant national security and constitutional challenges as well as a full government paralysis.
When asked if the president could pardon himself if found guilty of any crimes, Kavanagh also declined to answer. He said that this is something he hasn’t analyzed. Kavanaugh also said that he isn’t ready to weigh in definitively on whether it’s legal for a president to offer a presidential pardon to a convicted person if that person wouldn’t provide incriminating evidence against him.
Brett Kavanaugh’s confirmation is not a done deal. There are of course Republicans on the Judiciary Committee who have already expressed their support but Democrats have remained resolute in their efforts to block the confirmation. Neither side of the political divide has enough numbers at the committee stage to push for the outcome they want. There are a few swing votes that need to be dealt with.
Kavanaugh has cast himself as a tough and fair judge. During his opening statements on the Wednesday hearing, he said that his major focus will be to try cases independently enough that opposing sides can really feel they were all treated fairly. When pressed about the issue of separation of powers between the three arms of government, Kavanaugh said no one is above the law and ended it there.
The protests that disrupted the first day of hearing also went on during the second day. However, they were not as intense as the first day. The police say they have arrested over 70 people as a result. The hearings will proceed nonetheless and it may be a long road after all towards Kavanagh’s confirmation.