Checking in at over 3000 words, Steve-O-in NJ’s epic Comment Of The Month–Comment of the Day doesn’t do it justice—is just short of being the longest COTD entry ever on Ethics Alarms. It is also the first not attached to specific post in its EA headline, though the comment appeared in the thread of this morning’s Sunday Ethics Warm-Up, 10/7/18, Part I: Signature Significance Meets The Brett Kavanaugh Nomination Ethics Train Wreck.
I apologize to the several deserving Comments of the Day by other commenters that have been languishing in Ethics Alarms escrow because it’s been uncommonly busy at ProEthics and the Marshall household. Jumping Steve-O in line is no reflection on your work, but rather an acknowledgment of the superb timing and unusual erudition of his. It is one of the best summaries and analyses of the entire Kavanaugh National Nightmare I have read anywhere.
That doesn’t mean that I agree with all of it, of course. As if it isn’t long enough, I’ll be back at the end. But for those here who have occasionally asked why this veteran commentator’s occasional line-crossing outbursts of invective or bad taste have not been fatal to his participation here, this is the reason. I am proud to be the proprietor of a forum that is a catalyst for work like this. Thanks, Steve.
I have said little on this wreck until now, but here it is:
So it’s over, as Judge Brett Kavanaugh crosses the finish line to become Justice Brett Kavanaugh, by the closest margin possible and after paying a terrible price professionally and personally. This will be a seismic change at the Supreme Court and for this nation, but not only because his confirmation will move the Court to the right for the foreseeable future. Most people, heck, most LAWYERS, couldn’t tell you thing one about any of the judge’s decisions and why they are significant off the top of their heads, and even lawyers would probably have to do some research. Most people couldn’t tell you anything even vaguely specific about his judicial philosophy, except for the fact that Trump nominated him, so he must be right-wing.
Actually, Judge Kavanaugh served on panels with Obama nominee Merrick Garland and joined him in 93% of the opinions, dissenting from him only once. But most people, going forward, will tell you he was accused of attempting to rape a fifteen-year-old girl. They may even leave out the “accused of” or “attempted” part, or perhaps both. There are a lot of words most of us don’t want to see in the same paragraph with our own names even once. I think rape ranks up there in the top ten, maybe even the top four. Judge Kavanaugh is now going to see that probably a good 75%-80% of the time his name appears in print, because the mainstream media isn’t going to let this go, nor miss a chance as the years pass to imply he’s a pervert and a criminal who escaped justice and got a reward he didn’t deserve.
The more important reasons this represents a seismic shift are the precedent that it has set for how any high-level appointee, but especially a high-level conservative appointee, and most especially a high-level conservative appointee to a position that is going to have a major impact, is going to be treated, and the level to which opposition to such an appointee is willing to go that has been exposed. There is very little history of any modern, qualified appointee being treated in this manner.
Robert Bork made the mistake of not replying strongly to Ted Kennedy’s vile attack on him. Judge Bork was no dummy, and was in fact a seasoned litigator, so I can only say I believe he did not reply more strongly because he believed that no one would be swayed by such an outrageous statement. He was wrong. However, outrageous though Kennedy’s attack may have been, it was at least based on policy and the differing vision of where the country should go. Clarence Thomas received a despicable late hit from Anita Hill, accusing him of sexually harassing her (a co-worker who she followed into a different position at a different agency) after she conveniently held back until the hearings were over. He was able to deflect by deft testimony of his own which pronounced this attack (in his words)
“…a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”
What happened to Kavanaugh wasn’t akin to either Kennedy’s unanswered hate-spew against Bork, or Anita Hill’s coming forward and leveling accusations from an earlier time in Thomas’ legal career. I’m not even sure it’s akin to the Senate’s poor treatment of John Tower, who was rejected as Secretary of Defense amid anonymous allegations of drinking and womanizing, some of which weren’t even accurate. At least those allegations involved behavior as a Senator, not as a juvenile. There were no allegations that he was going to set the country on the wrong path or that he was some form of dangerous, evil figure due to his politics. Finally, Tower did not suffer fools gladly, so during his tenure as a senator he had made some enemies who used his nomination as a chance to settle some old scores. I would add that once the decision of the Senate was known, then-President George H.W. Bush simply moved on and nominated Dick Cheney, and the Senate also moved on and confirmed Cheney with a minimum of fuss.
In this case there were no allegations at all of misbehavior while Kavanaugh served on the bench or during his legal career prior to it. There is no evidence that the judge had anything other than a completely blameless personal life; no affairs, no questionable gifts, no using his office for access or privileges he wouldn’t otherwise get. Unlike Robert Bork, the target did not remain silent, and successfully stood up to every challenge on his philosophy and career the Democratic senators on the Judiciary could throw at him, most of which were not easy, and a few of which, notably those by Cory Booker and Diane Feinstein, were unfair. Just based on his career, record and scholarship, the man was clearly qualified to take Justice Kennedy’s place. That should have been the end of it, and there was no reason he should not have been confirmed at the close of the hearings.
As we all know that wasn’t the end of it. It wasn’t the end of it for a number of reasons, a lot of which, I have to say, are invalid, and what followed has pushed this already nation, which was already divided further than is healthy (divided in part thanks to the tactics of the last president, but that’s a separate discussion) further apart, and set the stage for it to take a path that is very likely to end badly.
The first reason is that the Supreme Court’s role, indeed the role of the Federal judiciary, has greatly expanded beyond what it was originally envisioned as, partly due to party politics, partly due to other historical factors. Fear of a judiciary that might go too far goes back at least to Thomas Jefferson who wrote, “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
TJ’s fears became much closer to reality when FDR overstayed the traditional two terms and waited out deaths and retirements to fill the court with his own people rather than earlier justices who had slapped down his overreaching. They fully flowered when activist judges and justices of the late 1950s and 1960s decided that they knew how to run things better than those who actually ran them and still more activist judges and justices of later decades created new rights out of whole cloth that certain segments of the population grabbed onto like a dog thrown a tasty fresh-cut chop.
The second reason is that these created rights in turn led to litigation becoming the preferred tactic of activists, determined to shove their own agendas ahead whatever democracy might say, and shove it ahead more quickly than the democratic process allowed. It also placed the Supreme Court in the position where it became a de facto Politburo, an unelected super-legislator that could override the elected branches of government.
The third reason is that this enshrinement of the Supreme Court as an unelected super-legislature led to the Court becoming less and less about the law and increasingly about politics. Both politicians and the sections of the public which stood to gain or lose depending on the politics paid increasingly close attention to who was appointed to the Courts. This in turn led to the appointment and examination of candidates for the bench being less about whether they knew the law and more about what were their politics and whether they would disturb decisions that the politicians didn’t want disturbed.
The fourth reason is that certain sectors of the population began to believe they were entitled to whatever rights the Supreme Court said they had, whether or not the decisions were legally correct. They didn’t want the decisions which gave them those rights examined too closely or reexamined at all.
None of this is even close to the original vision of the Founding Fathers, nor to the Constitution, which envisioned the judiciary as the weakest branch of government precisely because its members were not elected. The Federal judiciary has life tenure precisely to insulate them from passing changes and politics of the moment, the idea being they need to concentrate on the law and the law only. Their job isn’t to override the other branches of government nor the electorate to give someone who makes a lot of noise what they want.
The Supreme Court has been slowly coming back from this activist approach over the past three decades. Bill Clinton installed two judges who were reliable votes on the left, but both are now advanced in age. Obama installed two more liberal judges, but in both cases he installed liberal for liberal (Kagan for Stevens, Sotomayor for Souter) and changed nothing. Trump nominated conservative for conservative with Gorsuch and changed nothing. However, now the retirement of Justice Kennedy takes away the swing vote and creates a potential conservative majority for the first time probably since probably before FDR, since Reagan and Bush bungled their chance by appointing Kennedy and Souter alongside Scalia and Thomas.
Frankly, Obama’s arrogance is what prevented a setback with the sudden death of Scalia. Obama wasn’t interested in dealing with the Republicans in the Senate and they were able to simply brush him off. Bill Clinton would have had someone seated by Easter. So here we are, as Justice Kennedy, now 80 and not in the best of health, stepped down. It should have come as no surprise that a conservative president nominated a conservative justice to replace him. The left, powerless without a majority in the Senate, turned to what I can only describe as the slimiest political hit job done by either party in the US since the opposition called Andrew Jackson a murderer. It wasn’t that Kavanaugh stole client money while in private practice. It wasn’t that he misused his connections to help friends. It wasn’t that he boasted of an honor he never won. It was that he allegedly got heavy-handed with a young girl when he was 17, 36 years ago. The hope was that the mere mention of the r-word (when no actual rape took place), no name, no particulars, would be enough to either send him fleeing with his reputation in tatters, or to spook the president into giving him the “sorry, but for the greater good…” speech. It didn’t. To their credit, and in a sterling example to everyone else confronted with a smear attack, the presient and his nominee stuck to their guns. Judge Kavanaugh wasn’t going to withdraw “to spare my family the pain” and the president wasn’t going to pull his nomination and give the The Democratic Party and their pawn just were going to have to prove their case.
They didn’t want to prove their case. They wanted Kavanaugh to tell his side of the story first, so the complainant could tailor her testimony. They didn’t want the complainant to fly, but they didn’t want the Senate’s people to come to her either. They wanted a whole list of ridiculous demands that amounted to extortion of the Senate, subversion of the process and delay, to bring them ever closer to the midterms. Then another woman emerged saying he’d flashed her in college, but she wouldn’t testify about it. Publicity whore Michael Avenatti claimed to have a third woman waiting in the wings who would testify credibly that Kavanaugh was essentially Bill Cosby in high school, drugging young women so he could rape them.
When the judge still wouldn’t step aside, the Senate finally said no to all the ridiculous demands, and these outlandish “#Me Too” attempts to grab a piece of the spotlight collapsed like the houses of cards they were, the case didn’t turn out to be all that compelling. It consisted of one woman telling a story that was long on outrage, but short on details. No place, no time, no memory of whose house, almost no details but her certainty that it was Kavanaugh, told in a quavering whisper. More importantly, all the other individuals who were allegedly at the party denied anything happened, or couldn’t remember the incident if it did.
This was a case no prosecutor in his right mind would bring, and most civil plaintiff’s attorneys, even having to meet a much lower standard of proof, would think twice about filing. The only people who bought it were the Democratic politicians, the left’s outrage merchants, and the sheep on the left. None of those folks ever cared about anything but stopping this conservative judge at any cost and generating political capital. The right asked about due process. We were told it was just “a job interview.” Due process meant nothing and no one, least of all this white, cisgender son of privilege, was entitled to a presumption of innocence. The right asked about the passage of three decades without any action taken on these allegations and the suspicious timing. We were told 90% of sexual abuse accusers were truthful. How dare we question a woman crying attempted rape? The time that passed, the circumstances, none of that mattered, she was a woman who was violated, and she chose to speak up in her own time.
The right pointed out the fact that the judge spoke up in his own defense, and did so pretty compellingly, as a man fighting for his reputation against an unfounded accusation might. We were told that just proved his temperament was all wrong for the Supreme Court. The judge was supposed to just give a milquetoast response, or maintain a dignified silence, no matter what anyone else said about him. The right pointed to all of this and said hey, doesn’t any of this mean anything? We were told to just “shut up and step up.” There it was. It was never about getting to the facts, certainly not about getting to the uncomfortable ones. It was never about hearing both sides out fairly and making a fair and reasoned decision. It was never about qualifications. It was never even about getting late justice for someone who claimed she was scared into silence decades ago. It was about bullying one side into doing things the way the other side wanted them done.
So we endured weeks of glossy printed signs that no one made in their basements, scripted speeches with operatives planted to lead cheers, and oh-so-perfectly-timed outbursts from “invited guests.” We watched near-chaos engulf the Senate. I pity the Capitol Police for having to deal with this idiocy. We heard Lindsey Graham have his Joseph Welch moment, and tell his colleagues this was the most unethical sham since he entered politics. We saw Orrin Hatch’s security detail warn ranting activists to let the damn elevator close or risk arrest. We watched Jeff Flake almost waver, wheel and deal, but in the end decide he was NOT John McCain and didn’t want to go out having stabbed his president and his party in the back.
Finally we saw Susan Collins rise to give the one mature speech of the whole sorry affair (despite threats, despite fundraising, despite enough coat hangers for the entire US Army being mailed to her office), saying this was in the final analysis about due process and about qualifications, and, in the end, these uncorroborated and weak accusations weren’t enough to disqualify Judge Kavanaugh from becoming Justice Kavanaugh.
The rest is history, or it should be. However, as Gene Roddenberry had James Kirk say in the Cold War parallel “Star Trek: The Undiscovered Country,” we haven’t run out of history just yet. Lines have been crossed and new ones drawn. The sides in this country pull further and further apart and refuse to see one another as anything more than horrible, disgusting enemies. Self-appointed race and gender hucksters pronounce those who think differently than them traitors to the race, gender or whatever, as though they somehow owned them. Senators and other officials are being threatened with violence and death, which can’t just be dismissed as crank actions with no credibility in light of attempts to physically detain them between hearings and last year’s attempted massacre of GOP congressmen. Trump’s next nominee, who I predict will be named within a year and be Judge Amy Comey Barrett, is going to have an even tougher time, as the other side attacks her childhood faith (Catholicism) and calls her a traitor to her gender, because all women must be pink-hatted, foul-mouthed Trump-haters by definition. Meantime these mobs, there is no other word for them, that the activists have created are going to look for other targets, since this one was denied them. They aren’t going to stop with votes; the last two years should tell you that’s not the case.
At a friend’s wedding some years ago a discussion of the movie “Gettysburg”, then new to cable, came up, and another friend said she hoped another civil war would never happen. I scoffed and said that wasn’t possible, for the questions that led to the bloody conflict that accounts for about half of American battle deaths since the Revolution began at Lexington were all long settled. Those questions were threefold: slavery, secession, and the question of whether Federal authority was paramount. The first one is settled, at least here. After this new chapter of ugliness I am no longer sure the second two are, at least not on the left side of the aisle when the right side of the aisle in charge.
I’m not saying we are on the cusp of a new Fort Sumter. However, the left in this country is facing a reckoning. Do our elected officials have the ability to exercise their enumerated powers, or only when those actions align with your views? Is everyone entitled to be presumed innocent until proven otherwise, or does that presumption and standard depend on who is being accused, who is making the accusation, and what the accusation is? Does everyone have the right to be safe at home, enjoy a meal out in peace, and practice for a sporting contest without being shot, or do those rights vanish the moment you cross the center aisle going from left to right? Most importantly, is there room in this nation for more than one vision of the future in fact, or in name only?
You might want to think about that last one especially hard before you tell someone again to ‘shut up and step up,’ because there are more of us like Judge Kavanaugh, who won’t, than you think.
I’m back. A couple points:
- It’s not accurate to say that Ted Kennedy’s attack “was at least based on policy and the differing vision of where the country should go.” That lets Ted off the hook. I wrote about Ted’s smear when the current train wreck started rolling, but literally nobody, even liberal commentators, believe that Kennedy was accurately portaying Bork’s record when he said,
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy….”
- Let us not forget that the fear of the judiciary was most intensely expressed by the Founders who were lawyers. The primary authors of the Constitution and the Bill of rights, James Madison and George Mason, were not lawyers.
And in honor of my almost-name sake, let us not forget that the big step toward making the Court a co-equal branch was the work of Chief Justice John Marshall, intervening in a dispute between two lawyer-Presidents, John Adams and Jefferson.
- Regarding this passage…
“The second reason is that these created rights in turn led to litigation becoming the preferred tactic of activists, determined to shove their own agendas ahead whatever democracy might say, and shove it ahead more quickly than the democratic process allowed. It also placed the Supreme Court in the position where it became a de facto Politburo, an unelected super-legislator that could override the elected branches of government.”
…I could not disagree more, and stand with the other Marshall. We have seen how legislatures are willing to defy the Constitution and Bill of Rights with impunity: look at Claifornia’s clearly illegal edict dictating quotas on corporate boards. The Dred Scott decision is consistent with the kind of judicial restraint Steve seems to be approving, and Brown v. Board of Education is not.
- A lifetime tenure should not insulate judges from acknowledging the evolution of ethics and other enlightenment.
- To be fair and accurate, Andrew Jackson, who killed a disputed number of men in frontier duels that were illegal in the states, was a murderer.