Democrats Abandon the Constitution

By David B. Rivkin Jr. and Lee A. Casey

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

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Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr and Kristi Remington

October 1st, 2018, in the Wall Street Journal

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham—reflecting the White House’s view—potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

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Kavanaugh and the Ginsburg Standard

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.

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The Rule of Law Prevails in the Travel-Ban Case

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

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Trump Is Right on Nord Stream 2

President Trump was right to criticize Chancellor Angela Merkel’s plan for a new pipeline carrying Russian natural gas to Germany. This project threatens European independence and the North Atlantic Treaty Organization, and it was opposed by the Obama administration and many Senate Democrats, although not much was done to stop the pipeline’s construction. Numerous European countries have also been sharply critical of Mrs. Merkel’s energy plans. Mr. Trump has correctly sought to diminish Moscow’s European energy footprint, belying claims he is a stooge of Vladimir Putin.

In 2015 the European Commission cited Russia’s politically motivated disruptions of energy exports as one of the main causes of Europe’s energy insecurity. Moscow is the largest energy exporter to Europe; Gazprom alone supplied almost 40% of Europe’s natural gas in 2017. According to World Bank data, Gazprom’s European gas prices last year were more than double the U.S. domestic price. Russia has also repeatedly used its gas to blackmail Europe, cutting off the supply in 2006, 2009 and 2014, and causing severe shortages in Eastern Europe.

Germany has sought for years to maintain a special energy relationship with Moscow as a means of securing its own energy-supply predominance in Europe. Once the Nord Steam expansion is completed, it will account for 80% of Russian gas imported to Europe, making Germany the Continent’s major gas-distribution hub.

The Nord Stream 2 project has received particularly strong support from the center-left Social Democratic Party, a key member of Mrs. Merkel’s shaky governing coalition. Gerhard Schröder, a former SPD chancellor, has served as chairman of Nord Stream 2 AG, a Gazprom-owned consortium.

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A Champion of Constitutional Safeguards

Days before President Trump announced his choice of Judge Brett Kavanaugh for the Supreme Court, Senate Democrats had vowed to oppose any nominee. Backed by an activist-fueled propaganda machine, they now will unleash relentless personal attacks—on Judge Kavanaugh’s Catholic faith, his “elitist” Yale degrees, his service in the George W. Bush administration.

As with the attacks last year on Justice Neil Gorsuch, they should be unavailing. Over Judge Kavanaugh’s 12 years on the U.S. Circuit Court of Appeals for the District of Columbia, he has developed an impressive record as a legal thinker and a champion of the Constitution’s structural safeguards against overweening government.

Typical is a 2008 dissent in which Judge Kavanaugh concluded that the Public Company Accounting Oversight Board was unconstitutionally structured because it improperly insulated the agency from political accountability. The opinion was a tour de force of historical exposition and originalist methodology—that is, interpreting the Constitution’s text as it was originally understood. The Supreme Court ultimately agreed, adopting the reasoning of Judge Kavanaugh’s dissent.

Yet he is equally wary of unbridled executive authority, as a 2013 case shows. When the Nuclear Regulatory Commission declined to proceed with licensing the proposed waste repository at Yucca Mountain, Nev., which the agency appeared to oppose on policy grounds, he wrote: “The President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

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