Booker Stakes Out Controversial Ground on Kavanaugh

The potential 2020 contender has pushed further to the Left on Trump's Supreme Court pick than most of his colleagues.

Sen. Cory Booker, joined by Ilyse Hogue, president of NARAL Pro-Choice America, and Sen. Kirsten Gillibrand, speaks during a demonstration at the Supreme Court on June 28.
AP Photo/J. Scott Applewhite
Alex Rogers
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Alex Rogers
July 11, 2018, 8 p.m.

Most Democratic senators will vote against Judge Brett Kavanaugh, President Trump’s Supreme Court nominee to replace Justice Anthony Kennedy.

But Sen. Cory Booker has taken his opposition to a new level, urging the Senate not to vote on Kavanaugh’s nomination until Special Counsel Robert Mueller’s investigation is over. And if that fails, the New Jersey Democrat has said, a Justice Kavanaugh should “recuse himself from any matter regarding this president” that will come before the Supreme Court.

Booker’s position—announced within a day of Kavanaugh’s nomination—puts the Judiciary Committee member and possible 2020 presidential contender at the leading edge of the progressive resistance to the pick, making him a key player in the escalating partisan warfare over Supreme Court nominees.

After the 2016 presidential elections, and Senate Majority Leader Mitch McConnell’s eight-month blockade of President Obama’s pick, Judge Merrick Garland, Democrats woke up to the realization that Republicans had done a much better job at rallying their base over the vacancy created by the death of Justice Antonin Scalia. Democratic strategists created a new group on the Left, Demand Justice, to try to counter the Right, raising millions of dollars for the Kavanaugh nomination.

Before Trump announced his pick, Democrats’ messaging strategy focused on abortion, warning that Kennedy, who upheld core protections found in Roe v. Wade, would be replaced by an antiabortion justice who would undermine that constitutional right.

Many Democrats, including Booker, are still hammering on that issue. But Booker has distinguished himself by also claiming that Kavanaugh would provide immunity in any potential legal clash between Mueller and Trump, arguing that Kavanaugh would be Trump’s “shield.”

“The president of the United States should not be able to pick the judge that will preside over questions involving his investigation,” said Booker in a recent press conference.

Some legal experts consider that a flawed argument. At issue are Kavanaugh’s views on executive power. While a member of independent counsel Kenneth Starr’s team, Kavanaugh believed that the president should be subject to criminal investigation. Later, after working as a top staffer for President George W. Bush, he wrote that the demands on the president were so high that Congress should consider passing legislation protecting the president from civil suits, criminal investigations, or criminal prosecutions, deferring litigation and investigations until the president is out of office.

“[T]he 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,” he argued in a 2009 Minnesota Law Review article.

Democratic senators have cited that article in arguing that Kavanaugh believes that presidents are above the law, a claim he explicitly rejected then. (“If the President does something dastardly, the impeachment process is available,” he noted.) Some legal experts have taken his side.

“From a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted,” wrote Noah Feldman, a Harvard University Law professor and former clerk to U.S. Supreme Court Justice David Souter. “To the contrary. He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated—and maybe even indicted.”

In 1998, Kavanaugh signaled that he believed a sitting president can’t be indicted while in office, according to Politico. That position has been affirmed by the Justice Department under Presidents Nixon and Clinton.

In a statement, Booker claimed that any nomination of a Supreme Court justice by Trump now is “unacceptable because of the clear conflict of interest inherent in the president installing someone who could be the deciding vote on a number of potential issues from that investigation that could come before the Court.”

Republicans dismissed that idea.

“I don’t buy that,” said Sen. Lindsey Graham. “You make that argument, you can’t hear any challenge to any Trump policy because he appointed you, which is crazy.”

Booker says that a Justice Kavanaugh may have to decide a number of thorny questions between Mueller and Trump. In March, Mueller reportedly told Trump’s lawyers that he could issue a subpoena for the president to appear before a grand jury.

“Many elements of this investigation can now go before the Supreme Court,” Booker said. “Can a president be criminally indicted? Can a president pardon himself? Can a president end an investigation?”

Booker is widely viewed to have ambitions beyond the Senate. He’ll have a platform during the nominee’s hearing before the Senate Judiciary Committee to ask Kavanaugh how he would handle a case sparked by the special counsel investigation, setting up a moment that could greater endear him to the Democratic base.

Other Democratic senators in the 2020 caucus have more narrowly focused their opposition to Kavanaugh’s nomination to abortion. In a recent interview on PBS, Sen. Kamala Harris, who also serves on the Judiciary panel, said she would “definitely” ask Kavanaugh about whether he believes Roe v. Wade is “settled law.”

“Let's be clear about what this is about,” Harris said in a separate press conference. “It's about government taking on the decision about a woman and what she does with her body, instead of giving that woman and her family and her God the power to make the decision for herself.”

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