As Brett Kavanaugh dons his robes and debases the court he sits on with his presence, he will within the week have an opportunity to repay his Republican benefactors. After Trump Commerce Secretary Wilbur Ross was caught lying to Congress about the origins of a new census “citizenship” question, the Trump administration has been seeking to block a federal judge from requiring testimony from Ross over a lawsuit claiming the White House added the question with racially discriminatory intent.
Kavanaugh, then, could become the deciding vote in deciding whether an administration official caught lying in public statements can claim that executive privilege shields him from having to testify about those statements. And the prospect of a nominee picked for his apparent extreme willingness to protect the Trump administration from criminal and civil investigations voting within days of his swearing-in to do exactly what his most alarmist critics predicted he was being brought on to do is so nauseating a proposition that some are suggesting Chief Justice John Roberts might short-circuit the whole thing just to preserve some remaining shred of the court’s dignity.
“I wonder if, in such a circumstance, the chief justice might vote against a stay at least in part to avoid that prospect — since, either way, a tie-breaking vote from the newest Justice in a case like that could be perceived as deeply political,” [University of Texas law professor Stephen Vladeck] said. “So, if it’s a bellwether for anything, it may be a bellwether for the chief justice as much as it is one for Justice Kavanaugh.”
That’s a profoundly optimistic take. The evidence suggesting Roberts truly gives a damn about the legitimacy of the court is generally overstated; it is equally likely that Roberts, now free from having to play a more nuanced role by a court now firmly in conservative hands, will himself ratchet rightward simply because he can. The message of the Kavanaugh nomination, the Gorsuch installation, the erasing of Merrick Garland and the McConnell removal of the 60-vote threshold for Supreme Court nominees is that the third branch of government is no more than an extension of the second, but one fully unchained from the pedantic needs of voters.
We will know in the next few days. The fabulously wealthy Wilbur Ross was caught in a lie in service to an administration seeking to frighten minority voters into underground status. Whether he or anyone else in the administration must suffer the mild indignity even of having to defend himself will be up to a now irrevocably tainted, now fully illegitimate court.
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