Judge Nap: If Kavanaugh Confirmation Fails, Trump Has One Last Option
President Donald Trump has one last way to foil Senate Democrats if the continued attacks against Supreme Court nominee Brett Kavanaugh result in Kavanaugh not being confirmed, according to Judge Andrew Napolitano.
“Tell you what Donald Trump can do if this fails — he has recess appointment power. If Mitch McConnell recesses the Senate for 10 minutes he can put Brett Kavanaugh on the Supreme Court for four years without Senate confirmation,” Napolitano said Monday on the Fox Business Network.
“I don’t know that Brett Kavanaugh wants to do this. This is real hardball. He’d have to give up his present lifetime seat in order to do it. The president has that power,” Napolitano said.
The prospect of a recess appointment to the Supreme Court was bandied about in 2016 after Senate Republicans had made it clear they would not consider former President Barack Obama’s nomination of Merrick Garland to the court.
At that time, Jonathan H. Adler, who teaches law at the Case Western University School of Law, wrote an Op-Ed in The Washington Post that said such an option might look good in theory but was impractical.
Adler said that if Congress wanted to terminate the appointment, it could do so by conducting another recess, thus ending that appointment’s term.
Adler also noted that any such appointment would undoubtedly trigger a legal battle that might limit the effectiveness of a justice appointed in this fashion.
Lyle Denniston, writing on ScotusBlog, suggested that a recess granted as a maneuver to allow the appointment might not meet the rules imposed by past Supreme Court decisions. He said that any recess would need to be at least three days.
Matt Schlapp, chairman of the American Conservative Union, said he doesn’t believe Trump will try such a maneuver, according to NBC.
“Donald Trump is not going to back away from his Supreme Court nominee because of these types of allegations,” Schlapp said.
Schlapp also predicted a “meltdown” in conservative circles if Republicans fail to confirm Kavanaugh.
“Any disruption in support of Kavanaugh will harm their ability to win races and depress activists,” he said.
To that end, Thursday’s planned hearing at which Kavanaugh and his accuser, Christine Blasey Ford, will testify, looms large. Ford has alleged that Kavanaugh was sexually inappropriate at a 1980s high school party.
“It’s a case of lasting impressions,” Napolitano said on Fox Business. “Is Judge Kavanaugh so damaged that he will lose if it’s a tie?”
Harvard Law professor Alan Dershowitz has said Ford must take questions under oath, Fox News has reported.
“Nobody should be referring to her as a victim or him as a perpetrator until we hear from both them under oath subject to cross-examination,” Dershowitz said. “There is nothing more essential to American justice than the opportunity to cross-examine your accuser, to confront your accuser. It’s in the Constitution.”
Napolitano however, said the issue was not truth for Democrats, but inflicting damage “at the price of destroying his reputation and impairing his wife and destroying his child and making anybody think is this what I have to go through to elevate myself to a higher court in the land.”
“Is this what the founding fathers intended, is this any way to confirm a Supreme Court justice?” Napolitano said.
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