For me, the serious question about Judge Brett Kavanaugh's fitness for the Supreme Court has less to do with personal qualities, lavishly hailed Monday night, than with an episode 20 years in the past: the impeachment of President Clinton.
Kavanaugh is said to have been deeply involved in that partisan farce, as the right-hand man of Kenneth Starr, the former U.S. solicitor general. He was also the alleged writer — perhaps in part — of the Starr “report” that inspired the House to impeach. The details of that dark comedy have grown dim, but may well provide a moment or two of merriment in the Kavanaugh hearings.
The Supreme Court, led by the late Justice Antonin Scalia, a GOP hero, had a decisive hand in the events underlying Clinton’s impeachment. The Court held that a sitting president could be subjected to a private civil suit brought by one Paula Jones who claimed to have been sexually propositioned by Clinton when he was governor of Arkansas. The Court, with much joking about Clinton’s time on the golf course, dismissed the worry that a president with national fortunes on his shoulders should be temporarily excused from legal harassment — a judgment some justices were later rumored to regret.
As special prosecutor, Kenneth Starr led a $58 million excursion into Clinton’s supposed misdoings, all in vain but for the Monica Lewinsky affair, which Clinton was said to have lied about, and ending with a recommendation of impeachment.
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No special prosecutor, in the annals of those licensed nuisances, had ever offered such a grave recommendation. Nor had a special counsel ever based his findings on anything so flimsy as presidential sex. The Starr report concluded that Clinton had perjured himself before Starr’s grand jury. That became the gravamen of the impeachment case.
As one senator later observed, “when it is insisted that a legal case isn’t about money, you can be sure it’s about money; and, if Clinton’s accusers claim this impeachment isn’t about sex, it’s about sex.”
Another Clinton defender, the historian Arthur Schlesinger Jr., observed that “gentlemen never tell the truth about sex.”
And what does this history has to do with Judge Kavanaugh and his prospects?
The Senate Democrats will surely ask a few questions about his role as assistant in the preparation of Clinton's impeachment — and in the writing of a “report” that is probably the most extravagantly smutty document in the history of the republic.
Should Judge Kavanaugh reach the high court, it is conceivable — perhaps probable — that issues regarding the behavior of Donald Trump emerging from the Mueller probe will arise before the Supreme Court — perhaps the mysterious payoff of “Stormy” Daniels. They would not arise in impeachment — the Constitution is clear that the Senate is the arbiter of impeachment charges, although it also stipulates that conviction and ouster do not acquit a president of legal liability.
Judge Kavanaugh should certainly be asked about his hand in the Starr report. More particularly, he should be asked if he can remain impartial should charges against his patron Donald Trump arise for resolution before the Court. The truth is that no nominee to the Court can properly be confirmed on the eve of an election that could change the Senate’s balance.
Some saucy Democrats may also remark on the irony that an old perjury impeachment should lurk in the background of Donald Trump, who has utterly debased all standards of truth-telling. As he extolled Judge Kavanaugh Monday evening, Trump looked like the cat that swallowed a big canary. Maybe he knows something we don’t. Meanwhile, his prim candidate’s only unproclaimed virtue is that he is not known to have walked on water.