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Should Trump Be Allowed to Nominate Supreme Court Justices?

Everyday, America seems increasingly polarized as disagreements over policy and the President pit us against one another. The latest event that has divided the country even further is the nomination of Judge Brett Kavanaugh to the United States Supreme Court. With lifelong tenure, jurisdiction over consequential and controversial cases, and the ability to set precedents, the Justices of the Supreme Court have incredible influence when it comes to shaping law, society, and history.

The process for appointment and confirmation to the Supreme Court is fairly simple, set forth in Article II of the Constitution. The President nominates a candidate, who is then questioned by the Senate Judiciary Committee in a series of hearings. Afterwards, if the full Senate confirms the candidate with a simple majority, the appointment becomes official. But Trump’s presidency and Republican senators’ reluctance to speak out against Trump raise serious ethical and possibly legal questions about Kavanaugh’s nomination and subsequent appointment. Should Donald Trump, a man who has been blatantly ignorant, prejudiced, and is currently under criminal investigation, be allowed to nominate a Supreme Court Justice who is responsible for upholding the Constitution and interpreting the law?

Donald Trump’s character is called into question almost daily as new scandals come out of the woodwork and unbelievably shocking claims emerge from his mouth. The bar, however, has been significantly lowered; even one of Trump’s countless faux pas, political blunders, or lawsuits would have been enough to ruin the career of almost any other politician in the past, and yet he remains in the White House. He has been accused of sexually assaulting multiple women, he refuses to release his tax returns, he does not condemn white supremacist hate groups, he fabricates statistics and “facts” for the sake of proving his points—the list goes on. These are telling truths about his morals (or lack thereof), but those with whom he surrounds himself also say a lot about who Trump truly is.

Special Counsel Robert Mueller’s investigation has led to indictments or guilty pleas from Trump’s former foreign policy adviser, campaign chair, campaign aide, national security adviser, and personal lawyer. These are people who worked very closely with Trump, and now they have been charged with conspiracy, obstruction of justice, making false statements, and fraud, among other crimes. Who’s to say that Trump won’t be indicted next, especially among speculation that he obstructed justice and colluded with Russia? And if the President has no regard for the ethics of those he hires and oversees, does the public have any reason to believe that Kavanaugh will be any different from Trump’s band of criminal cronies?

Simply put, Judge Kavanaugh should not have been appointed to the Supreme Court, and Donald Trump is neither morally nor mentally qualified to make such an important decision. And yet, Trump has every right to. There are no legal provisions that prohibit Trump or any president from nominating and appointing a Justice, regardless of that president's character, scandal, or ongoing investigation. It may seem practical and ethical to put safeguards in place that limit the power of any president suspected of being morally compromised, but doing so might set a dangerous precedent and limiting executive duties could potentially cripple the presidency.

Each president, potential investigation, and situation is so different that a general provision might very well do more harm than good. It might also make those who disagree with a president in the future more inclined to launch investigations simply for the sake of blocking his or her power. Trump should not be entrusted with any of the responsibilities of the presidency, but to pick and choose which duties he can and cannot carry out would completely undermine the authority of the office.

It’s all or nothing—either Trump remains president, with all of the executive powers vested in the office, or he's impeached and loses all powers. While the latter is preferred and called for by many Americans, it is unlikely to happen. If it can be proven that Trump obstructed justice or committed another crime that violates Article II, he can be impeached. But, it is a complex and drawn-out process that involves being convicted by both the House and the Senate in order to be removed from office. And given the fact that the Republicans control both chambers of Congress and no president has ever been removed from office (Nixon resigned, and Johnson and Clinton were acquitted by the Senate), impeachment is unfortunately improbable.

Congress, luckily, is also the ultimate decider when it comes to appointing a Supreme Court Justice. According to the Constitution, the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court." So it is Congress that yielded the control over Kavanaugh's appointment. This should provide some check to the power of a possibly crooked president, but in today's point and time in history, it is indicative of Trump's permeating and widespread influence. In this case, the Senate should have rejected Kavanaugh on the basis of his character and actions, as well as Trump’s. They should have upheld that this appointment would fare poorly for the public's interest. And yet, they failed to do so. Democrats are the minority and Republicans either openly support Kavanaugh or would not dare speak out against Trump for fear of backlash, ridicule, and alienation. The Senate is not checking the President’s power like they should be, and many Republicans are becoming just as polarizing and far right as Trump.

As Kavanaugh’s hearing went on, it became clear that he is hardly different from the man who nominated him. Harrowing sexual assault allegations against Kavanaugh have been met with short tempers, angry defenses, and disregard for the women coming forward. The hearing also led to questioning of Kavanaugh’s drinking habits, potential gambling, and other vices. His very conservative and often controversial views and decisions have the potential to threaten the future of religious liberty, women’s rights, limited executive power, and general tolerance in this country. He is not the apolitical, even-tempered, unbiased Justice that the Supreme Court needs and that the American people deserve.

So where does this leave us? Kavanaugh’s successful appointment is a disgrace, but unsurprisingly, it stems from Trump. As much as we may want to prohibit Trump from corrupting the judiciary with his immoral character and incompetence, the only part of the process we have control over is the Senate, which is why it is so important to vote in the midterm elections and stay engaged as advocates and activists. The survivors of sexual assault who implored Senator Jeff Flake to reconsider his “yes” vote and call for an FBI investigation are proof that people can make a change, and this change will come from hitting the polls in November.

Right now, there is a culture of manipulation and close-mindedness circulating in Congress, where the people who are supposed to represent us have focused their energies on party and private interest over the public good. By pushing for a confirmation vote and disagreeing with an FBI investigation into the credible claims made against Judge Kavanaugh, the Senate Judiciary Committee and its Republican members prioritized loyalty to their own party over loyalty to the Supreme Court as an essential American institution. When the government is so divided and dysfunctional that it cannot execute its own checks and balances, it is in the hands of the people to restore justice.

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