It’s apparent that Senate Republicans are set on beginning confirmation hearings for Brett Kavanaugh, with the Senate Judiciary Committee set to start holding hearings next Tuesday. It is apparent that Republicans want to complete the nomination and confirmation process before the November elections. Democrats have tried a number of approaches to blunt the speed of Kavanaugh’s hearings, arguing that the documents they need to review for a confirmation hearing would not be ready o the republicans’ proposed schedule. Some, including Kamala Harris and Chuck Schumer, have openly argued it is improper to hold hearings while Trump is under cloud of a possible indictment.
All well and good, but none of this is stopping Senate Republicans. Democrats need to take the gloves off in a major way, and there are two ways of doing so.
First, openly argue, in front of the press and on news programs, that Kavanaugh was selected primarily to allow Trump to escape punishment for any crimes he may have committed. As a result, Senators voting to confirm are effectively assisting Trump in the commission of those crimes. As a result, any Senator that votes to confirm Kavanaugh will be a co-conspirator after the fact for any crimes Trump may have committed, and should be subject to criminal liability for them. And Democrats will eventually hold them liable for it.
Repeat this until it gets into the press’ DNA. That’s how this is done.
Second, openly argue, again in front of the press and on news programs, that since Kavanaugh was selected to further a criminal purpose, his selection was fraudulent from the beginning. As such, his confirmation would be improper and unconstitutional, and Democrats can remove him, without impeachment proceedings, at any time they regain power. This is a crucial threat, as it will impress upon everyone the serious impropriety of the GOP’s nomination of Kavanaugh.
Repeat this until it gets into the press’ DNA. That’s how this is done.
(But wait! you say. There’s nothing in the Constitution that says a Justice can be removed without impeachment! Your argument is noted. However, there is nothing in the Constitution that allows the Senate to fraudulently confirm a Justice to further the crimes of the President, either. The Framers intended the judiciary to be in part a brake on the Executive, and Kavanaugh’s nomination subverts that purpose entirely. Moreover, the common law around fraud as applied to, for example, contracts is well-settled — if one party enters into a transaction fraudulently, the other party is relieved of its obligations. That would apply to any Constitutional directives regarding impeachment.
Moreover, the Supreme Court should not be allowed to opine on the constitutionality of such a removal. Nothing in the Constitution mandates that the Supreme Court decide all questions of constitutionality, and it — at least the conservative wing — is too heavily conflicted and compromised to render judgment.)
So there it is, the nuclear options. If Democrats hope to stop Kavanaugh, that’s where they need to go.