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This Kavanaugh/'Nixon Tapes' Flap Is Why Democrats Fail

Instead of making an actual argument, Democrats continue to grab for the lowest hanging fruit.

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(Photo by MANDEL NGAN/AFP/Getty Images)

Trying to win an argument with the Democratic Party on your side is like trying to win a dance battle when your partner is Left Shark. Their heart is in the right place, but Christ do they lack that discipline and focus to do anything other than flail about like uncoordinated idiots.

Today’s progressive attack on Supreme Court nominee Brett Kavanaugh is that he doesn’t think United States v. Nixon was right. SPOILER ALERT: Brett Kavanaugh thinks U.S. v. Nixon was rightly decided and I know this because he’s said so, REPEATEDLY. But that’s not stopping the Democrats from making incisive critiques like:

“If Kavanaugh would’ve let Nixon off the hook, what is he willing to do for President Trump?” Senate Minority Leader Charles E. Schumer (D-N.Y.) asked Monday.

I’ve gotten used to Chuck Schumer’s relentless campaign to be Prime Minister of Vichy America, but this line of attack is particularly stupid. It stems from a transcript of a panel discussion Kavanaugh had in 1999, where Kavanaugh suggested that the emotions of the moment led to a wrong decision in U.S. v. Nixon. But it ignores law review articles and speeches Kavanaugh has made in support of the very same case.

At best, his position is unclear. But even his seeming inconsistency on the issue accrues to Kavanaugh’s benefit. It means that some entirely addled Democratic Senator will ask Kavanaugh a U.S. v. Nixon question at the confirmation hearings, which will allow Kavanaugh to filibuster for five minutes while saying absolutely NOTHING of value. And at the end, the Democratic Senator — one who will undoubtedly NOT have the qualifications to debate law with a potential Supreme Court justice — will give up the ghost and admit that he or she doesn’t really care about Nixon, since they’re more interested in how Kavanaugh will rule on a potential subpoena from Robert Mueller of President Trump. At that point in this incredibly dumb play, Kavanaugh will demur, saying that he can’t comment on potential litigation that will come before the Court, then Lindsey Graham or Orrin Hatch will apologize to Kavanaugh for their colleagues asking him questions he can’t answer, and that will be the end of this ENTIRE FREAKING FARCE.

To use a poker analogy, Schumer and the Democrats are ALWAYS trying to draw to the second best hand. They are forever hoping to catch a straight on the river when there is a freaking flush already on the board.

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It’s particularly frustrating to me, because Kavanaugh did reveal something in the 1999 panel transcript that I think should make him non-confirmable. From the Washington Post:

“But maybe Nixon was wrongly decided — heresy though it is to say so,” Kavanaugh said, according to a transcript of the discussion published in the January-February 1999 issue of the Washington Lawyer. “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently.”

Brett Kavanaugh believes in the unitary executive theory. His phrasing here, “subordinate executive branch official,” is another piece of evidence that Kavanaugh thinks in terms of unitary executive. The theory holds that all executive power is vested in the president and all other executive branch officials exist simply to impose his will. That theory is Trump’s “loyalty test” in action. It leaves no space for the concept that, say, THE ATTORNEY GENERAL is a servant to the American people and the rule of law before he is a servant to his liege. It leaves no space for the notion that the FBI is supposed to be more than the president’s personal secret police force. It’s a shockingly authoritarian view of executive power.

It’s a problem because the unitary executive theory elevates a president to the status of a Constitutional Monarch.

It doesn’t have a whole lot to do with stupid Nixon and the 40-YEAR-OLD battle over his dumb tapes. Nobody cares how Kavanaugh would rule on that case, and nobody can ask him how he would rule on a similar case in the future. But we can, and should, ask him about his fundamental philosophy of law. THAT MATTERS.

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Now, right now, I’m sure “Nixon Tapes” polls as “oh, interesting,” while “unitary executive” polls as “wait, wut?” But that too represents a steaming failure on the part of Democrats to understand and stick to a coherent message. The fact that most people don’t know what unitary executive theory is means that Democrats have a lot of teaching to do. I don’t know that you can ultimately explain the dangers of a unitary executive to the Mainers who make up Susan Collins’s base of support, but it’s worth a try. AT LEAST it’s a real fault line between progressives and white nationalists, as opposed to this made-up one about Nixon.

The Republican Senate is about to confirm a guy who thinks federal law enforcement owes allegiance to the president the way thuggish medieval knights owed allegiance to the king. And nobody is going to know they’re doing that because the Democrats can’t explain a fundamental tenet of the rule of law to their own people.

I’ve met kindergarten classes who are better able to conceive and execute a coordinated attack than the Democratic party.

Supreme Court pick’s remarks on Nixon case open new front in confirmation fight [Washington Post]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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