The Tragedy of Brett Kavanaugh and His Nomination to the Supreme Court

(Originally published on 10.4.18, updated on 10.9.18.)

There have been no political developments or hearings in Washington, DC that disturbed me more deeply than did the testimony of Judge Brett Kavanaugh before the Senate on September 27, 2018.

In Judge Kavanaugh’s testimony, he disqualified himself as a candidate for the Supreme Court, quite apart from Dr. Ford’s or other’s allegations of misconduct. He let down his model citizen mask, and what he revealed, to the shock of many (on both sides of the aisle), was profound animus, deep partisan bias, and astounding condescension and disrespect towards the Senate, all the while displaying the antithesis of what judicial temperament and behavior should be.  In fact, on that day, Judge Kavanaugh, then a sitting judge on the Court of Appeals for the District of Columbia (“the DC Circuit”), one of most prestigious courts in the United States, violated several provisions of the Code of Conduct for US Judges (“the Code”).  In so doing, he dishonored himself and the courts on which he then and now serves.

Judge Kavanaugh’s statements were far outside the norm required of every federal judge, to ensure that our court system is truly independent, non-partisan, impartial, and fair to all.  It’s vital not only for the proper functioning of our democracy; it’s essential for the people to have faith and confidence in this branch of government, an essential component of its legitimacy.   Politics, even pitched partisan battle, is what the Executive and Legislative branches are made for.   Partisanship, bias, venom, and unfounded accusations have no place in those who preside over our judiciary – whether they are sitting on the bench or in a public forum like the Senate hearings.

I have immense respect and affection for the Supreme Court and its vital importance to our democratic system of government.  Constitutional Law is one of my special areas of interest. I am a member of the Supreme Court Bar.  As a student, I was lucky enough to be able to study regularly at the Supreme Court’s Law Library.  Like Judge Kavanaugh, I am a Catholic, and was educated in affluent private Catholic schools, two of which, like Georgetown Prep, were Jesuit institutions.

I disagree with Judge Kavanaugh on some policy issues and interpretations of the Constitution, but understand that the President gets to pick his Supreme Court nominees and the Republicans control the Senate.  It was also deeply ingrained in me, from a young age, at home and at school, to keep an open mind, listen openly to both sides of a story before making up one’s mind, and not accept blindly what others may believe about someone. Honesty and integrity were also a strong value.  In our home growing up, you would get in trouble for doing something wrong, but much more trouble if you lied about it.

So, while Dr. Ford’s allegations are serious and her testimony appeared credible, I understand that it was 35-36 years ago.  Even with the best intentions and the best efforts at recall, memory can be flawed. And in any event, it’s not clear in my mind that mistakes of one’s youth should be disqualifying for a lifetime, as long as that behavior, and the unspoken attitude underlying it (in this case, misogyny), did not continue into adulthood.

So I wanted to hear, and was fully open, to what Judge Kavanaugh had to say.

Based on the record, I believe that Judge Kavanaugh is fundamentally a good man – flawed as are we all – but fundamentally a good man.  He has clearly studied and worked hard.   His references indicate that he has been a good boss, colleague, and friend to many; someone who gives back to his community; and to the extent we know (there is rightfully still some privacy left for public figures) a good husband and father.  He is a good man, with some flaws.  Unfortunately, the flaws he demonstrated, quite on his own, make him unqualified to serve on the Supreme Court.

When he started his statement, I was impressed.  It was beautifully written, well delivered and came from the heart.  It felt authentic.  Initially, I thought he had successfully defended himself under very difficult circumstances – not an easy thing to achieve with testimony alone.

Then, his statement quickly took a surprising, very dark turn, revealing another, equally real side of who he is.   Letting his mask down made him more authentic, but his authentic self was a very worrisome sight to see.   It revealed, for all to see, that this seemingly mild-mannered, prudent man has a very angry, aggressive, ugly side of his personality, a side that very well could come out when he drinks.  Alcohol removes emotional and behavioral inhibitions.  Some people say and do things they would not do when sober.  Some who otherwise are calm and reasonable get aggressive and belligerent.  Several of Kavanaugh’s acquaintances from high school and college have indicated that it did have that effect on him.  The country got a peek at the aggressive, belligerent side of Kavanaugh that day.

I have tremendous sympathy for the pain that the sexual assault allegations and their aftermath caused Judge Kavanaugh and his family. It is normal that he would be upset and angry.  Unlike some, I do not begrudge him the emotion and tearfulness that welled up in him at times.  It was understandable and authentic, and added to the sympathy and empathy that many of us have for him and his lovely family.

However, his anger and behavior went far beyond righteous indignation.  The accusations spewed were broad-brushed, spurious, not based in fact, the very antithesis of the way any judge should think or behave.

Out of him came deep-seeded venom, contempt and partisan hatred – of Democrats, “liberals” – that went way beyond the allegations raised.   His statement reflected animus that started long before he was nominated, and will continue until and unless he recognizes it in himself, and does the deep work needed to uproot the deeply held prejudice and resentment.

He also was disrespectful to the Senate.  In his statement, he talked down to the full Judiciary Committee, condescendingly lecturing them on what they had done wrong.  He then took aim at all the Democratic Senators on the Committee, noting that their “performance” in his original nomination was “disgraceful”, when in fact, they had asked him entirely fair questions, responsibly performing their duties.  When he condescendingly scolded any member of the Committee, he disrespected the entire Committee and the Senate.

Justice Kavanaugh was not and is not their superior.  It is he who needed the approval of the Senate, not vice versa.  Even now that the Senate has confirmed him, the Supreme Court is a co-equal branch of government, not superior to any of the other branches.  Judge Kavanaugh has never been elected – never went through the humbling and grounding process of connecting with constituents and securing their support – doesn’t directly represent the people, the ultimate source of all power in this country.  Every one of those Senators has and does.

He accused the Democrats of causing all the problems and pain that both he and Dr. Ford experienced, outlining what, in his mind, is a vast left-wing conspiracy.   Yet, no conspiracy brought out the allegations against him.  With no prompting from the Democrats, Dr. Ford contacted her Congresswoman (Congresswoman Eshoo) with her concerns. Dr. Ford came forward on her own, beforethe White House had decided on its nominee, in the hope that the they would select someone else.  Dr. Ford initially asked that her name be kept confidential, which the Democrats honored, until she changed her mind, because the press had found her.

The Democrats were also accused of causing Dr. Ford pain by not keeping her letter confidential.  They specifically falsely accused Senator Feinstein of leaking it to the press.   In fact, Dr. Ford testified under oath that, at the same time she initially notified her Congresswoman Eshoo in July, she also made an anonymous tip to the Washington Post. It was the Washington Posttracking down that anonymous tip that lead the Postto Dr. Ford.  Dr. Ford has not complained at all about the treatment she got from her Democratic Congresswoman and Senator.

If the allegations that emerged against Judge Kavanaugh were mere fabrication, generated by Democrats out to get him, then similar problems would have arisen with Trump’s last conservative nominee to the Supreme Court, Justice Gorsuch.  But they did not.  Justice Gorsuch hung out with a different crowd at Georgetown Prep, and had a very different reputation.

After getting the facts wrong, Kavanaugh then proceeded to make wild, erroneous accusations about the Democrats’ motivation for bringing the information out.  He alleged that the Democrats did this to him  “because of apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Such wild, unfounded, conspiracy-theory rants may have pleased the President.  Kavanaugh may even have even felt a need to go there to keep the President’s support, because the President felt he had been “weak” in his earlier interview with Fox News.   Regardless, such unfounded, venomous partisan rants are intensely inappropriate and stunning coming out of the mouth and mind of a high level federal judge and Supreme Court nominee.

This partisan venom was not necessary for him to defend his honor.  To the contrary, his rants besmirched his own honor, and revealed that after 12 years on the federal circuit court, he remains first and foremost a political operative – and an aggressive one at that.

At the time that Judge Kavanaugh appeared before the Senate Judiciary Committee, he was a Federal Circuit Court Judge, subject to the Code of Conduct for US Judges. (Supreme Court Justices are not subject to this Code, but the Canons below reflect ethical standards that are expected of and observed by our Justices, because they are essential for maintaining public trust in the institution.)

Canon 1 of the Code of Conduct for US Judges (the “Code”) states: 

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conductand should personally observe those standards, so that the integrity and independenceof the judiciary may be preserved.

The commentary to Canon 1 notes:

Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges.

Canon 2 of the Code states:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

• Respect for Law. A judgeshould respect and comply with the law and should act at all timesin a manner that promotespublic confidencein theintegrity and impartiality of the judiciary.

The commentary to Canon 2 provides in relevant part:

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’shonesty, integrity, impartiality,temperament,or fitness to serveas a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

Between his arrogant, disrespectful behavior towards the Senate and Senators; his lies and evasiveness on issues he was not ethically barred from answering; the deep-seeded partisan hatred expressed; and anger so vicious that it unnerved millions of people for days thereafter, it is hard to imagine a judge doing a better job than Judge Kavanaugh did on September 27 to undermine public confidence in his truthfulness and impartiality.  It erodes confidence in the integrity and impartiality of both the man, the Court on which he now sits.

Kavanaugh’s behavior at the hearing was so shocking that it prompted unprecedented comments by current and former Supreme Court Justices, questioning his fitness and temperament to serve on the Court.

Retired Supreme Court Justice John Paul Stevens (a Republican) stated that while he inititally thought Kavanaugh deserved confirmation, he changed his mind after Kavanaugh’s testimony at the hearing, because of the partisan bias that he demonstrated.

Two days after the hearing, at a Princeton University Conference, Justices Elena Kagan and Sonia Sotomayor indirectly but clearly indicated that his behavior and temperament were unsuited to the Court.   Kagan said she feared that adding Kavanaugh to the Supreme Court might place it in danger of being perceived as a political body instead of a neutral institution for resolving disputes.  She added, “It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply extension of a terribly polarizing process.”

Justice Sotomayor said that Supreme Court Justices had to avoid the type of partisan rancor seen in other sectors of public life: “We have to rise above partisanship in our personal relationships . . . .We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”

After being “shell shocked” by Kavanaugh’s extreme partisanship and lack of judicial temperament, Robert Post, Sterling Professor of Law and former Dean at Yale Law School, felt compelled to speak out because of the damage his appointment would do to the legitimacy of the Supreme Court.  He wrote in his article, “Brett Kavanaugh Cannot Have It Both Ways”(published in Politico):

For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger, a haunting reminder that behind the smiling face of judicial benevolence lies the force of an urgent will to power. No one who felt the force of that anger could possibly believe that Kavanaugh might actually be a detached and impartial judge. Each and every Republican who votes for Kavanaugh, therefore, effectively announces that they care more about controlling the Supreme Court than they do about the legitimacy of the court itself.

* * *

[J]udicial temperament is not like a mask that can be put on or taken off at will. Judicial temperament is more than skin-deep. It is part of the DNA of a person . . .

* * *

If Kavanaugh really cared about the integrity and independence of the Supreme Court, he would even now withdraw from consideration. But I see no evidence that he is about to withdraw. Kavanaugh will thus join the court as the black-robed embodiment of raw partisan power inconsistent with any ideal of an impartial judiciary. . . . Kavanaugh will inevitably become the focus of distrust and mobilization. His very presence will undermine the court’s claim to legitimacy; it will damage the nation’s commitment to the rule of law.

“America Magazine” (a Jesuit publication that tends to favor conservative judges, and the leading Catholic journal of opinion in the US)also withdrew their endorsement of him, and called for Kavanaugh to withdraw. 

The ABA Committee on the Federal Judiciary has called for a review of the highest rating they gave him, because of temperament issues.

The views Kavanaugh expressed are the epitome of what should not be there in a judge, especially a Supreme Court Justice.   The essence of a judge is that he or she should be non-partisan – should be able to check any passions, personal political views and biases at the door – not just to hide them from the world, but to prevent them from infecting a judge’s thinking or view of a case. It takes a certain personality type combined with self-awareness; a limber, open mind; and a particular type of mental and personal discipline.  On Sept. 27, 2018, Judge Kavanaugh demonstrated, beyond a shadow of a doubt, that he does not possess these qualities.

Supreme Court justices cannot be so angrily partisan that it will impair their ability to fairly decide between litigants and issues. The Supreme Court is a judicial body, not a political one.  The Justices must genuinely rise above politics.  Even if Kavanaugh could do this, his impartiality will forever be in question.  It will cast a pall over any decision in which he is involved.  It would be fair for any Democratic lawyer, or organization that is viewed as “liberal”, such as the ACLU or Planned Parenthood, to believe that it would be impossible for this judge to be impartial vis-à-vis their issue.

But Judge Kavanaugh’s troubling performance did not stop with the partisan venom or inappropriate condescension.   It got worse as the Sept. 27 hearing went on.  His answers throughout the afternoon cast ever greater doubt on his credibility, until by day’s end, it was left in tatters – not by the allegations levied against him, but by his own testimony and behavior.

Judge Kavanaugh’s veracity was already in question, during his original confirmation hearing in early September, before Dr. Ford’s allegation was known.

Documents released to the Senate Judiciary Committee this year revealed that Kavanaugh had lied and/or misled the Senate in 2004 and 2006, when seeking Senate approval for his current seat on the DC Circuit.  In sum, among other things, the documents showed that Kavanaugh

• appears to have lied in 2004 and 2006, when he repeatedly denied receiving or seeing confidential Democratic Senate Judiciary Committee staff documents that had been stolen by a GOP Senate Aide. Kavanaugh worked closely with that Senate aide on judicial appointments. (Seethe transcripts of the 2004, 2006 and 2018 confirmation hearings; https://slate.com/news-and-politics/2018/09/judge-brett-kavanaugh-should-be-impeached-for-lying-during-his-confirmation-hearings.html);

 

• provided misleading answers about the degree of his involvement in the Bush White House on 3 very controversial judicial appointments, and

 

• provided misleading answers about the degree of his involvement with the Bush Administration’s policies on torture and warrantless wiretaps by the NSA.

Oh, what a tangled web we weave
When first we practise to deceive!

It’s hard to make documents released in 2018 match up to lies told in 2006.

The fact that a nominee to the Supreme Court had lied under oath to the Senate was shocking, and in less partisan times, would have ended Kavanaugh’s nomination right there – before Dr. Ford ever spoke out.  Willfully lying under oath to the Congress is perjury, a federal crime.  While perjury is hard to prove because of the intent requirement, lying to or misleading the Senate remains very serious, all the more so for a federal judge.  Lawyers and judges are held to a higher standard of conduct than the average citizen.  They are all officers of the court in which they practice.  A court’s job is to find the truth, and apply the law to the facts.  So, honoring such processes, and above all telling the truth, is imperative.

At the time, some Republican Committee members indicated that if Kavanaugh had not been truthful, that would be a major problem, but the Republicans continued to press the nomination forward.

Then, during the hearing on Dr. Ford’s allegation on Sept. 27, 2018, Judge Kavanaugh’s propensity to lie and prevaricate became even more evident.  Previous fears and concerns about his honesty were put in high relief.

All afternoon long,  Judge Kavanaugh dishonestly answered by eitheroutright lying under oathto the Senate; being evasive and misleading; stubbornly refusing to answersome questions (when Senators would not accept evasion); or angrily snapping back when cornered.

Most obviously, Judge Kavanaugh outright lied about the meaning of some of the entries in his high school yearbook.   Even giving Judge Kavanaugh the benefit of the doubt, some of his answers defied all credulity.  The real meaning of the idioms he used in his year book could easily be checked out online. His sanitized explanations have since been further undermined by a letter he wrote – in his own handwriting – to his buddies about an apartment they rented for a “beach week” in Ocean City, MD in June 1983.   (For a copy of the letter written by Kavanaugh, in his own handwriting, see https://www.nytimes.com/2018/10/02/us/brett-kavanaugh-georgetown-prep.html.)  His entries in the yearbook clearly alluded to debauched drinking and sexual practices, not as he claimed, flatulence and drinking games.  And he knew that well, when he bald-faced lied to the Senate.   Although these lies related to seemingly minor facts, they remain perjurious.  Moreover, why did he go to such great lengths to hide such trivial facts from his youth? It is behavior indicative of someone who is guilty and is trying to hide the truth, rather than someone who was being forthright and honest.

When Judge Kavanaugh didn’t outright lie, he non-answered many questions that he was notethically barred from answering, and that he could have and should have answered candidly.

He was consistently, deeply uncomfortable and defensive when asked about his high school and college drinking habits.  Each time he was asked, he squirmed, repeatedly said that he liked beer, and used a variety of evasion techniques to try not to answer.  When asked a direct question, he generally answered with irrelevant babble, often reciting accomplishments on his resume which were already well known.  When that didn’t work, he resorted to throwing aggressive questions back at the Senators rather than answering the question.

For example, when Senator Amy Klobuchar asked him if he had ever drunk to the point where he couldn’t remember events, Judge Kavanaugh belligerently replied, “You’re asking about blackout. I don’t know, have you?” When Senator Sheldon Whitehouse questioned Judge Kavanaugh about whether the reference to the “Ralph Club” in his high school yearbook was related to alcohol consumption, Kavanaugh avoided answering with the astonishing reply, “I like beer. Do you like beer, Senator, or not? What do you like to drink?” When Whitehouse attempted to move on to another question, Kavanaugh repeated, “Senator, what do you like to drink?”

When neither of those tactics worked, he just went quiet, refused to answer.  Senator Grassley swooped in to save him at the most awkward moment of silence.

His non-answers and behavior were nothing short of bizarre, mind-bogglingly inappropriate, defensive, and strongly suggested that he was not being candid – that in fact, he had frequently drunk to excess in high school, at times to the point of blacking out.  Since the hearing, several of his high school and college friends (not enemies, his friends) have spoken out about Kavanaugh’s excessive drinking and the culture of heavy drinking that was prevalent in his social circle.  He could have admitted it, explained that it was youthful excess, that the pattern didn’t continue. The fact that he worked so hard to hide it suggests that the other, more serious allegations may be true as well.

There is a classic saying, going back to Roman times: “False in one thing, false in everything.”  It comes from the Roman legal principle that a witness who willfully falsifies one matter is not credible on any matter. It remains a valid jury instruction today because it tends to be true in human experience.

Ironically, Judge Kavanaugh’s consistent evasiveness, lies and squirmishness, were in stark contrast to Dr. Ford’s testimony.  She answered all questions calmly, directly, clearly, and carefully. She did not claim to recall more than she did.  His performance made her look all the more credible.

The unusual way he responded to questions about his youthful drinking habits also raised the question in many people’s minds of whether he may, in fact, have some form of drinking problem to this day.  If he has a problem with alcohol that is unacknowledged and untreated, it will only grow worse over time.  Supreme Court justices are lifetime appointments.

The nomination, as well as Judge Kavanaugh’s testimony, was also rife with other irony.

Judge Kavanaugh said that the Senate’s roll of “advice and consent” has been replaced with “search and destroy”.   He railed against what has become the politics of personal destruction that has been used against him.

He warned that:

You sowed the wind for decades to come.  I fear the whole country will reap the whirlwinds . . . . The consequences will extend long past my nomination.  The consequences will be with us for decades.  This grotesque and coordinated character assassination will dissuade confident and good people of all political persuasions from serving our country.  And as we all know in the United States political system of the early 200o’s, what goes around, comes around.

Ironically, that is not a statement of what is to come.  It describes where we are now and how we got there.  Those seeds were sown decades ago, and ironically, Judge Kavanaugh played a significant role in planting those seeds.   As a young lawyer, Judge Kavanaugh made a name for himself in conservative political circles by his enthusiastic participation in the Independent Counsel investigation into President Bill Clinton under Kenneth Starr (“the Starr Investigation”).  That investigation launched the current era of the Politics of Personal Destruction, the consequences of which have continued on to this day.   So ironically, in this case, what goes around, has come around.   Or as St. Paul said in Galatians VI, “As you sow, so shall you reap.”

What Judge Kavanaugh has experienced in this process is not “revenge” as he would like to think.  He simply experienced the harvest of the political landscape he helped cultivate.  President Trump and some Republicans may harbor long-term grudges, and have difficulty letting go of the past, but the Democrats have moved on. As everyone knows, they are looking to the future, and right now, the upcoming midterm elections.

Once successfully launched by the Starr Investigation, the current partisan political landscape was tilled for decades by certain elements within the Republican party with efforts to fuel culture wars and assassinate the character of opponents.  The Starr Investigation itself was fueled by Republican rancor and many false accusations, including the totally unfounded claims that Vincent Foster was murdered, when in fact, it was clear from the outset that it was a tragic suicide. Think of the pain that that totally unnecessary investigation caused Foster’s grieving family.

More recently, Republican allegations that the Obama Administration was trying to cover up what happened in the attack on the American consulate in Benghazi were ludicrous.  Rather than showing the world and our enemies a united front when the country was attacked, the Republicans dreamt up incredible allegations of a non-sensical cover up in a desperate attempt to manufacture partisan political fodder where there was none.  Millions of dollars of taxpayer money and countless hours of government employees’ time was wasted on Congress’ political witch hunt on that.  How many committees looked into Benghazi?  How many hearings were held?  And how long did it go on?  They of course found nothing because they were chasing phantoms.  They weren’t searching for the truth; they were just trying to manufacture political scandal where there was none.  In the end, Kevin McCarthy (R-CA) accidentally admitted that the Benghazi investigation was pursued – and pursued – and pursued – to politically damage Hillary Clinton, whom they considered a strong Presidential contender. Facts were not what fueled that investigation.  Imagine the pain that it caused, not only to government employees falsely accused, but to the families that had lost loved ones there.

Today, the politics of personal destruction has been brought to new lows – hopefully has reached its nadir – by the current President, the one who nominated Judge Kavanaugh, the one to which Kavanaugh is so grateful.  Trump is the epitome of the politician who thrives on character assassination, with no regard for the truth.  His trademark is  lying, belittling, naming, bullying, and making false allegations against his opponents. Now that he is President, Trump abuses his Presidential power by trying to instigate criminal investigations against his opponents based on his lies.  He has had people fired who don’t go along with his lies, or who won’t compromise the integrity of law enforcement agencies to do his corrupt bidding.  Moreover, the lynch-mob mantra “Lock Her Up”, that his campaign started, and that he irresponsibly continues to fuel for purely political purposes, is absolutely immoral.   Can you imagine anything that would do more to promote death threats or attempts on someone’s life than the President fomenting hatred and a lynch mob mentality against an individual?  The former First Lady, and all the people who have been subject to such treatment, have had to live with that for a lot longer than 10 days about which Judge Kavanaugh so vocally complained.

Judge Kavanaugh is just another pawn in Trump’s game – and like so many of Trump’s pawns, they get stung – but this pawn willingly signed up and enthusiastically participated.   The divisiveness of this nomination has everything to do with Trump – whom Trump picked, and how Trump handled it. He pressured the Senate to railroad it through.  He chose this candidate, among several other qualified conservative candidates, although Mitch McConnell advised him that Kavanaugh would be the most difficult choice to get confirmed. Choosing someone else would have spared the country and Judge Kavanaugh all this pain, but Kavanaugh’s performance on September 27 suggests that, for all his wailing, he was a ready and willing participant.  He remains, at his core, an aggressive political operative.

The rancor that this nomination has generated, and that Kavanaugh readily participated in (with his bare-knuckled speech and his Fox News interview), feeds Trump’s strategy of fueling culture wars (men vs women, conservatives vs. liberals), which Trump thinks will help in the midterms. In hindsight, Kavanaugh’s Senate performance, disturbingly, fits all too well into what now appears to be a well-choreographed GOP political strategy to shift any political fall-out from the nomination onto the Democrats, by being “outraged” by the unjust character assassination of a man who is beyond reproach.  (There is no talk of the dishonesty, partisanship or lack of judicial temperament which he demonstrated on his own.)

Kavanaugh worked closely with Don McGahn and the White House on his Senate confirmation.  Trump changed his tactic from initially being respectful to Dr. Ford, to openly attacking her.  Kavanaugh then went on Fox News to defend himself, followed by his display of angry partisan rage in his Senate hearings, blaming Democrats and the vast left wing conspiracy for trying to destroy his good name.  Lindsay Graham’s theatrics at the hearing went even more over the top, calling the hearing the most unethical sham he’s seen since he’s been in politics, and warning that every father, husband, son, and brother should be afraid of being falsely accused of sexual assault.  Now that Kavanaugh has been confirmed, Trump is on the campaign trail pounding away with those same messages – that the questions raised by Dr. Ford and the Democrats about Kavanaugh’s character were all fabricated character assassination and a disgraceful “con job”.  Whether Justice Kavanaugh’s participation was knowing or unwitting, he willingly and enthusiastically jumped into the partisan fray.  The fact that his comportment fairly raises such questions underscores why he showed himself not to be suited for the job.

Curiously,Trump doesn’t drink, has strongly admonished his children not to drink, because he saw the destructive influence that alcohol had on Trump’s brother, Fred, Jr.  If Trump did not feel he needed Kavanaugh on the Court so badly, the evidence that is established already would have been enough for Trump not to choose Kavanaugh as his nominee.

Trump nominated and has championed Kavanaugh so strongly, over several other solid conservative candidates, for one reason.  Trump likes the views that Kavanaugh expressed in a law review article in 2009 that sitting Presidents should have a “temporary deferral of civil suits and criminal prosecutions and investigations.” Trump is facing several civil law suits as well as the Mueller investigation.  In addition, Trump is an un-named co-conspirator in the felony charges in the Southern District of New York, against his former personal attorney, Michael Cohen.  The question of whether a current President can be criminally indicted and whether the President can be subpoenaed to testify before a Grand Jury are issues that could well come before the Supreme Court.

Trump wants Kavanaugh on the Court badly because he believes it is vital to save his political derriere.

Lastly, Kavanaugh scolded the Senators that “people will listen to your words”, while failing to realize that, at that very moment, he was center stage while millions of people listened to his hate-filled rage and watched his belligerent behavior. Judge Kavanaugh’s words were not one of leadership, or unification. Rather, his words were venomous, angry ones that profoundly upset millions of people to their core.  It reminded me of the sage lyrics to the great Stephen Sondheim song,“Children Will Listen”.   It is Kavanaugh, the GOP Senators and the President, not the Democratic Senators, are the ones who need reminding that people listen to what yu say and do:

Careful the things you say
Children will listen
Careful the things you do
Children will see
And learn
Children may not obey
But children will listen
Children will look to you
For which way to turn
To learn what to be
Careful before you say
“Listen to me”
Children will listen.

I had hoped against hope that Judge Kavanaugh could and would put his reverence for the Supreme Court above his own personal ambitions of becoming a Supreme Court Justice, and after realizing the implications and impact of his performance on Sept. 27, he would withdraw his name for consideration, so as not to damage the institution.  However instead, he wrote an OpEd to the Wall Street Journal, swearing that he was independent and non-partisan, and repeating things he had said in the hearing. The publication of that article, in a conservative publication owned the same owner as Fox News, was another action inconsistent with the judicial temperament, non-partisanship, and comportment of a Supreme Court Justice.

As Kavanaugh has emphasized his faith, I can only hope now that Justice Kavanaugh will pray for and be granted the grace to

• recognize the darkness that dwells deep within him, and that reared its ugly head at the hearing,
• deeply examine that hatred and resentment, and root it out, so that he can free his brilliant mind, his heart and his soul of encrusted views that are wrong headed and wrong hearted.

As a justice or in any other role entirely, he will have far greater contributions to make to his family and the country if he succeeds in doing so.

His nomination was both tragic and ironic.

• Tragic for all the pain it has caused, both those at the center of the controversy, and every American who watched the September 27 hearing.
• Tragic for the damage it will do to the Supreme Court, both in terms of perceived partisanship, and in terms of perceived corruption if Kavanaugh does not recuse himself from cases related to civil cases or criminal investigations of the President who went to extraordinary lengths to get him appointed.
• Tragic for its role in continuing to divide the country.
• Tragic because all involved – the President, Kavanaugh and the Senate GOP – demonstrated that they cared not one iota about the integrity or legitimacy of the Court.They cared only about personal ambition and imposing their partisan will and imprint on the Court.
• Ironic because it was the logical outgrowth, albeit perhaps an unintended consequence, of the seeds that that Judge Kavanaugh helped plant many years ago with the Starr Investigation.

Judge Kavanaugh could help end this era of intense partisanship, if he can rise to the occasion.  That will require that he understand his own rage, take responsibility for mistakes of the past, both professional and personal.  It’s ok to make mistakes.  Mistakes are one way we learn.  But one can only grow if one recognizes them and learns the right lessons from them. Anger and resentment will only keep you locked in the past.

 

© 2018 Jane Albrecht.  All rights reserved

 

Jane Albrecht is an attorney who did appellate litigation at the US International Trade Commission.  She thereafter worked in the Washington, DC office of Verner, Liipfert (now DLA Piper), the DC Office of Dewey, Ballantine, and the Brussels office LeBoeuf, Lamb.  She also worked overseas for the Motion Picture Association of America.  She is a member of the Supreme Court Bar.  While studying at Georgetown U. Law Center, she clerked for Abram Chayes, who at the time, wasFrankfurter Professor of Law at Harvard Law School.