President Trump plans to announce his nominee to replace Supreme Court Justice Anthony Kennedy next Monday – choosing from what seem to be a list of mostly sterling candidates.
My strong favorite is Amy Coney Barrett, a judge in the U.S. Court of Appeals for the 7th Circuit (Indiana), age 46, who clerked for the late Justice Antonin Scalia.
Trump nominated her to that judgeship in the spring of 2017, and the U.S. Senate confirmed her last October by a 55-43 vote, with Democratic Sens. Joe Donnelly, Indiana, Tim Kaine, Virginia, and Joe Manchin, West Virginia, supporting her confirmation.
Barrett is a prolific writer, having published in leading law reviews across the country on topics including originalism, federal court jurisdiction and the supervisory power of the Supreme Court. In an article discussing stare decisis and precedent, she explained that “public response to controversial cases like Roe [v. Wade] reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.”
She would be a great bet for a Supreme Court justice who seems committed to originalism and textualism, much like her former boss, Scalia.
There are many other great candidates among those being considered by the White House for nomination. Yet, there is one on the list that should be removed for consideration – too risky for such a pivotal swing-vote position.
That would be Brett Kavanaugh, a 53-year-old judge on the U.S. Court of Appeals for the D.C. Circuit. On the surface, he seems to have impeccable credentials, a Yale University and Yale Law School graduate, 12 years on the D.C. Circuit, etc.
But there are some warning signs he may be the kind of establishment voice the country doesn’t need right now.
The biggest one is his role as the principal author of Independent Counsel Kenneth Starr’s report to Congress during the investigation of Bill Clinton’s White House scandals and cover-ups – including the mysterious death of White House Deputy Counsel Vincent Foster.
President Trump has shown he believes there was something “very fishy” about Foster’s death and the ensuing cover-up by the Starr commission. Kavanaugh was in charge of that investigation, which left many unanswered and disturbing questions.
His lead investigator was Miguel Rodriguez, an assistant U.S. attorney in Sacramento, California, who was dismissed from the probe because it found evidence contradicting the notion that Foster committed suicide in Fort Marcy Park. Rodriguez wrote an extensive memo explaining why the evidence simply didn’t support such a conclusion. He found two photographs that showed a second wound on Foster’s neck. The government’s official conclusion was that there was no wound on the neck. Rodriguez states that one of the photos was an autopsy photo, and the other was taken when Foster’s body was in the park. He concluded that the wound was caused by a stun-gun or Taser. His memo also concluded that “the existing FBI interview reports and USPP [United States Park Police] interview reports do not accurately reflect witness statements” and that after “having refreshed their recollection with new photographic evidence,” “four emergency medical personnel identified … trauma each had observed on Foster’s right neck area.”
All of this evidence was dismissed by Kavanaugh back in the 1990s, and some of it emerged as recently as 2016. The rush to judgment on Foster’s death and the cover-up that followed by the Clinton White House, orchestrated by Hillary Clinton, should be a disqualifying matter for a critical appointment to Supreme Court all these years later.
It’s worth noting that Ronald Reagan nominated Sandra Day O’Connor to the Supreme Court at the urging of Kenneth Starr. She was one of the worst disappointments of the Reagan years. It’s important that Trump is not fooled by establishment recommendations as Reagan was.
There are too many super-qualified candidates for this position who would do a fine job without the specter of a whitewash in the matter of Vincent Foster’s untimely and unexplained death.
President Trump’s instincts are right about Foster. He should follow them and look elsewhere for his best pick next week.