During the 2016 election campaign, not long after securing the Republican nomination for President, Donald J. Trump did something no presidential candidate in history had done before. Nearly 6 months before the election that would make him president, and nearly 8 months before he would formally be inaugurated, Donald Trump delegated one of the primary duties of the office. He offered the Heritage Foundation and the Federalist Society the opportunity to shape history by providing a list of acceptable candidates for the Supreme Court Justice vacancy created by the death of Justice Antonin Scalia and held open by Senate Leader Mitch McConnell’s refusal to allow hearings on President Barack Obama’s nominee Merrick Garland.
The conservative think-tanks provided candidate Trump with a list of 21 names they and their members found acceptable as choices, jurists they deemed to be solid conservatives that could easily win Senate confirmation if Republicans maintained their majority. While it was clear a Republican president would nominate (and a Republican-controlled Senate would embrace) staunchly conservative jurists anyway, the list Trump cobbled together motivated grass-roots and religious voters and helped bring some of the establishment Republicans back into the fold in the wake of the “Never Trump’ movement. While it is unclear who came up with the idea of the list, and the think tanks did all the heavy lifting, Donald Trump of course claimed all the credit for himself in 2017 after wining the election. He said,
“It’s a great list. From the moment I put that list out, it solved that problem. And I was proud to say it was my idea.”
President Trump was inaugurated in January 2017. Just 10 days later, Trump nominated Neil Gorsuch from the 10th Circuit Court of Appeals to fill the Scalia vacancy. Gorsuch was confirmed by the Senate on April 7, 2017. Gorsuch had been on the list of 21 acceptable nominees.
No sooner was Neil Gorsuch on the bench, finally giving the Court a full slate of Justices nearly 14 months after Scalia’s death, did the questions start swirling whether Justice Anthony Kennedy might retire when the Court completed their session that June. When asked about the potential opportunity to add another Justice to the Court, one that could potentially tip the balance dramatically to the right, Trump (for one of the few times since he announced his candidacy) gave a politician’s answer. He said:
“I don’t know. I have a lot of respect for Justice Kennedy, but I just don’t know. I don’t like talking about it. I’ve heard the same rumors that a lot of people have heard. And I have a lot of respect for that gentleman, a lot.”
Of course, Trump could not leave it at that, as he always has to have the last word and that last word always has to be about himself or his talent for hiring the best people. So he added that any Justice he was to subsequently appoint would be “really talented and of our views.” But here is the most critical piece of that interview. When asked by the reporter specifically whether he would pick from the list of candidates he put forward in the campaign, Trump’s answer was unequivocal:
“Yes. That list was a big thing.”
Justice Kennedy did not retire when the Court’s 2017 term ended.
In May 2017, shortly after the Gorsuch confirmation and the interview in which Trump promised unequivocally vowed that any future Supreme Court nominees would come from that original list of 21 names, The Justice Department’s Office of the Special Counsel (headed by former FBI Director Robert Mueller) began an investigation into possible Russian interference in the 2016 presidential election and whether there was any collusion on those efforts between Russia and the campaign of Donald J. Trump. By October 2017, Mueller’s team had handed-down its first indictment, of Trump’s former campaign manager Paul Manafort. Manafort would subsequently be convicted in August 2018.
On November 17, 2017 President Trump added 5 new names to the remaining 20 on the original list. At the time, and these additions were made more than 6 months before Justice Kennedy announced his retirement, a USA Today article described the additions this way,
“The biggest new name was that of Brett Kavanaugh, a judge on the powerful U.S. Court of Appeals for the District of Columbia Circuit. Many Supreme Court justices have come from that circuit, and Kavanaugh tops the list of judges most often named as Trump’s next pick.”
Sure, Kavanaugh checks all the boxes a Republican president could want. But what stood out then, and what is magnified now, is Kavanaugh’s position he advocated on the record in a 2009 law review article:
“I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
He then asserted that, “the indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
Is there a link between a President of the United States under investigation and watching his associates and former employees fall one-by-one under indictment or guilty plea and the addition to a nominee list of a potential Supreme Court Justice who believes that President should be above the law, untouchable? When that potential Supreme Court Justice could be the deciding vote on a divided Court? How about when that potential Supreme Court Justice refuses at his confirmation hearing to discuss the possibility of recusal should a case determining Trump’s legitimacy as President (and thus his own legitimacy as Justice) come before the Court?
It certainly seems President Trump mislead Americans when he promised his nominees would come form that original list, and more importantly, it certainly seems President Trump had ulterior motives for picking a potential Justice with Kavanaugh’s views on the presidency.
But Trump lies so often it is not even newsworthy anymore. One Senator, however, seemingly also cannot keep himself from misleading the public, especially when facing a tough campaign.
The Republicans and President Donald Trump nominated candidates possessing “super legitimacy” and did so in an act of “unprecedented transparency” because candidate Donald Trump released a list of the judges he would pick from and allow voters to elect or reject him based on that list and the voters’ desire to see members of that list on the Supreme Court.
Except Brett Kavanaugh was NOT on the list of potential Justices Trump released before the election. He was added to the list when President Trump realized he needed a defender of the absolute rights of the presidency. He was added to the list when President Trump realized he might need a tie-breaking 5th vote on the Court to rule whether he is subject to subpoena, or criminal charges, or even removal from office.
During the 2016 election, candidate Donald Trump promised voters his Supreme Court nominees would come from that list.
After his election, President Donald Trump unequivocally reassured Americans his Supreme Court nominees would come from that list.
This week, Senator Ted Cruz went as far as to falsely claim Brett Kavanaugh WAS a pre-election member of that list.
I wonder WHY they would lie?
Ted Cruz defeated Donald Trump in Iowa in 2016 on the strength of his VOTING VIOLATION mailers that, among other things, threatened voters with lines like , “We intend to mail an updated chart,” and “You and your neighbors will all know who voted and who did not.” When push-back came over the deceptive and threatening mailers (designed to look like official ballots), Cruz was smug, “I will apologize to no one for using every tool we can to encourage Iowa voters to come out and vote.”
During his re-election campaign this month against Congressman Beto O’Rourke (a dead-heat race), Cruz offered-up a heavily doctored video spliced and diced that purports to show Beto O’Rourke saying he is grateful for flag burners. But that was not the context of the question nor the substance of the answer. Quite the contrary, a review shows the Cruz ad presents only 43 of 143 words from the question, and only 24 of 615 words from O’Rourke’s answer. It is not a recording, it is a mash-up, and it is typical Ted Cruz fraud and deception because he cannot win any other way.
But Ted Cruz saved his biggest lie for the Kavanaugh confirmation process this week. Although, there is some irony in the guy President Trump nicknamed “Lyin’ Ted” telling lies to defend a Trump nominee. Cruz claimed the GOP’s refusal during the final year of Obama’s presidency to allow a hearing for nominee Merrick Garland actually gives confirmed Justice Neil Gorsuch and nominee Brett Kavanaugh “super legitimacy.”
Oh really, Ted, how so?
Because voters in 2016 knew that the next president would get to pick at least one justice.
By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”
And there it is. There is the biggest lie told during the Kavanaugh confirmation hearings.