In her opening statement at the hearings into the Supreme Court nomination of Brett Kavanaugh, Sen. Amy Klobuchar of Minnesota played the Trump card heavily.
Kavanaugh, among his controversial views, has said that, if a president considers a duly enacted federal law to be unconstitutional, he may have the right to simply disregard the law and decline to use the executive branch to enforce it. Klobuchar alluded to this statement and found a number of ways to say that many things about the Trump administration are “not normal.”
After establishing that several of the abnormal things about the Trump presidency suggest a threat to the balance of powers and even to the rule of law itself, she said:
Today we begin a hearing in which it is our duty to carry on the American constitution tradition that John Adams stood up for many years ago. And that is to be a government of laws and not of men. To me that means figuring out what your views are, judge, on whether a president is above the law. …
It is a simple concept we learned in grade school, that no one is above the law. So I think it’s a good place to start. There were many highly credentialed nominees, like yourself, that could have been sitting before us today. But to my colleagues what concerns me is that during this critical juncture in history, the president has handpicked a nominee to the court with the most expansive view of presidential power possible. A nominee who has actually written, that the president, on his own, can declare laws unconstitutional.
That is apparently a reference to Kavanaugh’s opinion in in Seven-Sky v. Holder, a dissent Kavanaugh wrote in 2011 while on the U.S. Court of Appeals for the District of Columbia Circuit, which challenged the individual mandate provision of the Patient Protection and Affordable Care Act. The ACA had been passed by Congress, signed by President Barack Obama and had survived challenges to its constitutionality.
This link, will get you an analysis by ScotusBlog of the case and Kavanaugh’s unusual suggestion of what a president might do with a law that he viewed as unconstitutional, even though it had passed Congress and been signed by a previous president and upheld by the Supreme Court. But because the other members of the appellate panel hearing the case outvoted Kavanaugh, his opinion had no effect, offering only an insight to how Kavanaugh might rule if a similar arose, in which a president was refusing to respect a law on the books.
In her remarks, Klobuchar suggested that 1) aspects of the Trump presidency to date have left her worried that Trump’s willingness to abide by laws and precedents; 2) that Kavanaugh’s position on the three-judge panel left her worried that as a Supreme Court justice he might take an extremely expansive view of presidential power and 3) that that might be among the reasons Trump wants him on the Supreme Court.
Using her time to put some more of her concerns on the table, and to alert Kavanaugh to what she planned to ask him about, Klobuchar also said she was troubled by indications in an article Kavanaugh wrote that likewise “raised many troubling questions” about his expansive view of presidential power, especially in light of the current occupant of the Oval Office and the investigations swirling in Washington. She said:
The article you wrote raises many troubling questions. Should a sitting president really never be subject to an investigation? Should a sitting president never be questioned by a special counsel? Should a president really be given total authority to remove a special counsel?
Reaching back a mere eight centuries and showing a little snark, Klobuchar offered Kavanaugh a history lesson:
The days of the divine right of kings ended with the Magna Carta in 1215. And centuries later, in the wake of the American revolution, a check on the executive was a major foundation of the United States Constitution. For it was James Madison, who may not have had a musical named for him but who was a top scholar of his time, who wrote in “The Federalist No. 47” that the accumulation of all powers, the executive, legislative and the judiciary, may justly be pronounced the very definition of tyranny. So, what does that warning mean in real life terms today?
Here is one example: It means, whether people like Kelly Gregory, an Air Force veteran, a mother, and business owner, who is here from Tennessee and who lives with stage-four breast cancer, can afford medical treatment at a time when the administration is arguing that provisions to protect people with pre-existing conditions can’t be kicked off their health insurance are unconstitutional. We cannot and should not confirm a justice who believes the president’s views carry the day.
Klobuchar’s statement also reviewed several reasons she is concerned about what she considers Trump’s disrespect for the rule of law and the Constitutional balance of powers, and she implied that in Kavanaugh he seeks an enabler. She said:
The question we are being asked to address in this hearing is whether this judge, at this time our history will administer the law with equal justice as it applies to all citizens, regardless of whether they live in a poor neighborhood or a rich neighborhood, or if they live in a small house, or the White House.
Our country needs a Supreme Court justice who will better our legal system, a justice who will serve as a check and balance on the other branches; a justice who will stand up for the rule of law without consideration of politics or partisanship; who will uphold our constitution without fear or favor and who will work for the betterment of the great American experiment in democracy. That is what this hearing is about.
Klobuchar, a lawyer and former Hennepin County attorney, is the fifth ranking Democratic on the committee, which has 10 Democratic members.