Given the cloud over the presidency — and the pending midterm elections — no Supreme Court justice should be confirmed. However, we don’t live in a political era during which the majority party is willing to apply the same rules to this president that it used to block President Barack Obama’s nomination of Merrick Garland in 2016. We don’t live in a political universe in which Republicans care whether they are hypocritical or are destroying whatever comity is left in the Senate. (But they are happy to go to the Senate floor to praise the late senator John McCain for putting country over party and continually reaching across the aisle.)

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Therefore, the next most responsible move would to be to disclose Kavanaugh’s entire record — in part, to clarify whether Sen. Patrick J. Leahy (D-Vt.) is correct that Kavanaugh misled the Senate in 2006 by denying knowledge of GOP-purloined emails — and to ask the nominee again about the issues identified above.

Surely, based on these basic constitutional principles, he should be able to give the Senate some comfort that he would not allow the president who nominated him to bribe cronies with promised pardons, evade a lawful subpoena, fire prosecutors, instruct the Justice Department to prosecute only Democrats, shut down an investigation into his own criminality, and pardon himself (as well as his family and associates, I presume). This is not the same as asking him to say how he would rule on the next case in which a state attempts to severely limit women’s access to abortion, or one concerning a state’s effort to ban semiautomatic weapons, or on the pending lawsuit to eradicate the last remnants of the Affordable Care Act (specifically, the protection for preexisting conditions).

These questions are asking Kavanaugh whether his general admonition that no one is above the law has any concrete meaning as it applies to the president. His refusal to rule out even extreme examples of presidential overreach and subversion of our constitutional system suggests it was his leniency on presidential power that might have been the basis for Trump selecting Kavanaugh to fill retired justice Anthony M. Kennedy’s seat.

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It would seem absurd that he can do no better than to announce he cannot answer “hypotheticals.” (He opined on Brown v. Board of Education, so apparently some matters such as de jure segregation are no longer open for debate.) But he should recognize the legitimacy of the Supreme Court is at risk and offer — as Justice William H. Rehnquist did when the Watergate tapes became an issue — to recuse himself to avoid tainting any decision. When he says he won’t do that either, one has to question whether this is, in fact, an attempt by Trump to use a compliant Senate to put his handpicked judge in a position to rescue him from his alleged illegal and unconstitutional conduct.

I have low expectations that Republican senators such as Flake, Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) or Bob Corker (R-Tenn.) will insist on assurances from Kavanaugh that he will either recuse himself or respond to the specific questions. They have the power to force him to do one or the other, but not if they simply shrug their shoulders and follow the mob.

Again, I am not, for a moment, under the impression that any of these Republicans would ultimately oppose him. The question is whether they have the nerve to insist we not gamble with our constitutional system and erase whatever power the Senate has to advise and consent on nominees. In essence, why aren’t they willing to advise (put in protections against a presidential fix) so they can consent to a nominee, if that is their preference?