This past Thursday’s Senate hearing was, as expected, a spectacle. I won’t go too deep into the politics and the performances, i. e. Senator Lindsey Graham, of those on the Senate Judiciary Committee, but I did want to note something I found disturbing.
Dr. Ford gave very credible testimony in which she said she was “100% sure” that Judge Brett Kavanaugh had sexually assaulted her decades ago. She was poised for the most part and provided specific details. She made an allegation, but beyond that we have no corroborating evidence to back up her allegation. From a legal standpoint that’s important. No one should ever face legal jeopardy over an uncorroborated allegation. But let’s be clear, these Senate hearings aren’t legal proceedings. This is a political process. These confirmation hearings are about fitness for office and that is the central question under consideration.
So we heard from Dr. Ford. She made an allegation. She has the right to make that allegation, and we should want to hear and assess what she has to say against a nominee who’s being considered for a lifetime appointment to the highest court in the land. And since the Court, as with Congress, has itself gotten so highly partisan and dysfunctional we should be highly concerned about not making it even more so. I would argue that all this “he (or she) is qualified for the job” talk is trivial and beside the point in considering any nominee for any federal court. Most nominees that come before Senate confirmation are “highly qualified.” But being qualified is basic. It’s pretty damn clear the nominations are made with party politics in mind, not judicial independence. In fact, a solid record of judicial independence, of not towing the ideological line, is likely to have your name removed from the consideration of the various partisan institutes that create lists of judges for consideration and send them to the White House. So a judge’s politics has a big play in all this…and we should all be concerned with just how much it plays into a judge’s decision making.
And this brings me to my concerns about Judge Brett Kavanaugh. At first, prior to Thursday’s testimony of Ford and Kavanaugh, my feelings were that unless we have some corroborating evidence we should not sink a nomination over an allegation. We should take this allegation seriously, but fundamental fairness to the accused is fundamentally more important in my view. Because any of us can be unjustly accused. People, I know this may be hard to believe, will sometimes lie to destroy other people. To be clear, I’m not saying Dr. Ford is lying, only that in my view you should have more than an uncorroborated allegation before you decide to act against someone. And that was my view before Thursday.
But then came Brett Kavanaugh’s Thursday testimony before the committee, and another area of concern about his fitness for office emerged in my view. I completely understand why Judge Kavanaugh would be angry over Dr. Ford’s earlier testimony before the committee. Kavanaugh believed he’d been unjustly slandered. I’d be angry too. But in defending himself Kavanaugh went too far in my view. You see, as Kavanaugh began talking, at first, I was very sympathetic and felt Kavanaugh’s nomination should be confirmed. But then he crossed a line. He began to heave hyper partisan attacks on democratic members of the committee and even claim some conspiracy by the Clintons and other left wing groups. He did most of this on the edge of a barely constrained rage. And with that my support for his nomination melted away.
And here’s why: Kavanaugh is being appointed to a lifetime position on the highest court in the land. His demeanor and temperament are absolutely part of any assessment for this office. Judge Kavanaugh is not new to Washington politics and knows exactly why he was nominated—because of his “conservative credentials.” So he’s no choir boy about the implications of his appointment for those who aren’t so conservative and those who vehemently disagree with his judicial philosophy. Kavanaugh knows full well that confirmations are a political process, which means it can be a blood sport. There’s a lot at stake and Kavanaugh knew this fully.
So what should he have done? Well, he should have vehemently defended himself, sure, but he should have demonstrated far greater restraint. America doesn’t need another supreme court justice who’s basically confirmed for all of us his deeply held animus for members of the political opposition—who represent, by the way, millions of his fellow Americans. Just imagine how Republicans would react if the shoe was on the other foot. We already knew why Kavanaugh was being nominated, but most of us, I think, had a faint hope that all judges might, just might, be able to sometimes put politics aside for the sake of the nation when forming their judicial opinions. I guess I’d like to believe that while Judge Kavanaugh may have a conservative judicial philosophy (and that’s fine) he could be independent minded and not a mere partisan in a black robe. But by any charitable account, Kavanaugh chose to make it clear he has a deeply held animus against members of the democratic party and that he will carry that animus to the supreme court with him. I don’t care what your politics are, I personally don’t think it’s a good idea to confirm a judge knowing the very basic idea of fundamental fairness, independence, and the impartiality of the nominee are in serious question.
Consider Canons 1 & 2 of the Code of Conduct for United States Judges:
Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. . . Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor.
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.
I cannot see how anyone could watch Judge Kavanaugh’s testimony this past Thursday and not feel that his fairness, independence, and impartially had been seriously compromised.
The members of the Senate Judiciary Committee represent states and party interests. None of us were surprised that politics openly influenced them or their decisions during this process. However, to watch a supreme court nominee vent his deeply partisan views was disturbing considering the position and power he will have for decades if confirmed.