In past years, Constitution Day was an occasion for reverential praise for the genius of the Founding Fathers and exhortations for the country to live up to the promise of its charter. Some took the occasion to talk about the Constitution’s fundamental flaws (e.g., sanctioning slavery and excluding most of the population from the franchise). Others noted that our constitutional structure institutionalized distance between government and the people through such things as creation of an unrepresentative Senate, the electoral college, and granting states authority to draw and gerrymander districts. And many celebrated advances – often belated — through constitutional interpretation, such as the end of Jim Crow laws, expansion of gender equality, protection of the right to privacy, and the recognition of LGBT rights. All of this was done soberly, with purpose and some fanfare, but without a sense of crisis.
The election of Donald Trump has changed Constitution Day forever. He has brought home the tenuousness of our grasp on constitutional government. His unprincipled actions have skewered constitutional norms that made the government work and highlighted flaws in our ability to hold an unfit president to account. Constitution Day now has a never-before-experienced urgency.
Trump has attacked constitutional values on a host of fronts. He has challenged the First Amendment through his ban on Muslims entering the country and his endless assaults on the press. His incitement of hate and his rejection of minority protections slam into the equal protection and due process guarantees of the Fourteenth Amendment. He has demonstrated profound ignorance of and disregard for the separation of powers and the role of each branch.
But, most significantly, he has fought tirelessly to defeat presidential accountability. Trump has demonstrated his thirst for unbridled power and his contempt for individuals and institutions that seek to rein him in. Nothing could have been more alarming to the framers. Having just violently escaped the oppression of a king through revolution, they were extremely wary of creating a powerful, unchecked executive.
Trump has weaponized presidential powers to protect himself. He has fired or threatened to fire those who dare to investigate him. He has tweeted demands at his attorney general, sought to shame investigators, and threatened to disable them through stripping them of security clearances. He has conspired with allies in Congress to undermine officials in his own FBI and Department of Justice. He has used the pardon power promiscuously and has hinted at his ability to pardon his family and associates and himself.
Perhaps most devastating for the long term, he has sought to undermine the independence of the judiciary. From his campaign, during which he alleged Judge Curiel’s Mexican heritage made him biased, to his Muslim ban, when he called a judge who enjoined it a “so-called judge,” Trump has broadcast contempt for the independence of judges. With the assistance of Senate Majority Leader McConnell, he has placed unqualified, radical right-wing ideologues on the lower courts. He appointed an extreme conservative to the seat McConnell stole from President Obama. And now, Trump has sought to ensure that the judiciary will not act as an independent check on presidential power by nominating Brett Kavanaugh to the Supreme Court.
The evidence strongly suggests that Trump selected Kavanaugh because he would not check the president. Trump famously outsourced the creation of lists of nominees to the Heritage Foundation and the Federalist Society. Kavanaugh was a conspicuous omission until he suddenly appeared on a list in November 2017. A key thing that happened between publication of the prior list and that list was the appointment of Robert Mueller and the resulting intensification of the Russia investigation.
That’s significant because Kavanaugh was the nominee to pick if protecting the president from accountability was the goal. Kavanaugh had questioned whether U.S. v. Nixon, which required Nixon to comply with a trial subpoena by producing the Watergate tapes, was correctly decided or whether it improperly undermined the president’s control of White House information. Kavanaugh stated that the Supreme Court was wrong when it upheld the constitutionality of the now expired independent counsel statute. That position has obvious implications for the constitutionality of Robert Mueller’s appointment.
In addition, Kavanaugh wrote that he did not think that a sitting president should be subject to indictment or even criminal investigation while in office. That surely was music to Trump’s ears. Kavanaugh urged Congress to consider legislation to protect the president from such forms of accountability.
The truncated process by which Trump and Republicans in the Senate are attempting to rush Kavanaugh onto the Court oozes contempt for the independence and legitimacy of the Court. Justices nominated for a lifetime position on the Court must undergo thorough and rigorous examination by the Senate before it renders its consent. Anything less reduces confirmation to an exercise of raw political power by the president and the majority party. It subjugates the importance of judicial qualities to the desire to achieve political results. It is a political exercise that demeans the Senate’s constitutional role in confirming justices, undermines the public’s faith in the Court, and creates the possibility that embarrassing information will emerge after the nominee is sworn in.
The information that emerged from the very limited selection of Kavanaugh’s records that the president and Republicans allowed the Senate to see raises numerous questions about his candor under oath and his views on crucial issues, such as the limits of executive power. But Trump and his party are willing to sacrifice the independence of the judiciary in their rush to protect the president and implement their hard-right political agenda.
This Constitution Day is different. We must all embrace the best of our fundamental values and stand fast against a president who would tear down the work of 229 years in his quest to remain unaccountable. The Constitution contains the tools to subject the president to legislative and judicial checks, but it will take a determined citizenry to activate them.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.