Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.


  1. You are right on on every point. Temperament, hyper-partisanship, so many small lies (and the likelihood of far bigger ones), petulance, self-righteousness, entitlement, snapping back at questioners with inapprpriate/mocking questions, evasions, outright refusal to answer some questions, distractions, angry insults – I’ll bet Judge Kavanaugh does not permit those behaviors in his courtroom by attorneys or defendants or plaintiffs, and especially when those behaviors and comments are directed at him.

    He does not have the temperament, integrity, or self-discipline to put aside his own political feelings, grudges, and biases to interpret the law. He should leave quietly and call it a day.

  2. Everything Nancy just posted is how I feel about his testimony. I was moved by Dr. Ford’s testimony and it bought a couple of tears to my eyes. I have been glued to the tv for two days and I’ll never get those days back but I was watching history and couldn’t pull myself away.

    That lying jerk got up there mad as a hornet, and reminded me of someone. Who was that? Oh, yes, that was my ex husband who tried to use me as his personal punching bag and who cried and yelled when I left him. That same temperament was shown to the therapist in her office after I had been gone for several months and i had regained my strength from his abusive behavior. He cried, I promise I’ll get better! I’m taking anger management classes to help me. I promise not to verbally abuse you or hold a hot iron up to your face ever again. I remembered it all and I was unable to go to bed until that hearing ended at 1:30 am local time. (I never went back with the ex).

    Kavanaugh is unfit to serve on the SCOTUS and I sent a note to Senator Donnelly’s office when I couldn’t get through on the phone Friday. We don’t need that kind of temperament on the court. What a disaster and I hope that even if the FBI doesn’t find anything that can be proven about either of their stories that the current administration removes him and suggests someone else.

    And Lindsay Graham needs to shut up and resign too. His angry display was sickening.

  3. “Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.”

    The above copied and pasted paragraph says much more than the words contained it its brief statement but I must take issue with one portion, “…the shameful refusal to grant Merrick Garland even the courtesy of a hearing,…”. The Constitution REQUIRES a Senate hearing – NOT an appointment – a hearing. McConnell decided he and the Senate are above the Constitution, Rule of Law and democracy and blatantly denied Judge Garland his rightful hearing. Easily getting away with that denial; they have moved ahead at an accelerated speed to further ignore our rights as American citizens on all issues at every level.

    Will the Trump approved FBI investigation be the fiasco the Kavanaugh Senatorial Judicial Committee here was, the denigration of Kavanaugh’s long ago victim was a distraction from the true findings of the original “hearing” which again Republican Senators are ignoring. Trump has limited the scope and time frame of the investigation; Kavannaugh provided evidence against himself for the FBI investigation to use as their starting point; his teenage daily calendar with names and dates and his high school yearbook, his frequent drinking parties as well as his known anti-women proclivities in college and law school. McConnell’s determined effort to push ahead with Kavanaugh’s appointment is another bullying tactic. Will Jeff Flake continue with his apparent backtracking regarding trust in Kavanaugh or is this another distraction to give Kavanaugh time to regroup (or sober up) and regain strength after his pitiful performance on Thursday? I will say again that Orin Hatch spoke wisely (though not in the scope he meant his words) when he said what is important is the man he is today…we saw the man he is today on Thursday.


  4. As I watched Brett Kavanaugh testify my eyes were drawn to his wife sitting behind him. I wondered if at home he was all kindness, and consideration, and love. “Honey, I’m home! Come let me give you a kiss and tell me all about your day.” Or did he yell at her when all was not perfect in his world? “I’m home! Fix me a drink.” She sat there still and muted, deep into a kind of suffering and resignation that only women tied to abusive powerful men know. And it showed.
    It was written all over her face. She and Dr. Ford would have a lot to talk about. My heart went out to both women.

  5. I concur with Sheila’s conclusion and feel that Kavanaugh’s explosion at the hearings should have been disqualifying by itself.
    However, in fairness to him, to the extent he deserves fairness, he did not “refuse to submit to an FBI investigation”. That is not what he said.

  6. There may be no evidence yet of the absolutely black and white kind like a face defined by cookie crumbs denying complicity in the now empty cookie jar affair, but there is zero doubt even now of the preponderance of evidence kind of the true nature of Republican rush to judgement.

    This whole circus has one motivation; keep Trump out of jail.

    Kavanaugh has written that important people like the President (and perhaps in his mind he as a SCOTUS Justice) must be held above prosecution for crimes.

    Here’s more evidence on the motivation for a rush to judgement.

    “The reason for the rush: “So it is now very clear why the GOP is so desperate to get Kavanaugh on the Supreme Court by next month that they would schedule a vote before hearing from Dr. Ford or any other witness that comes forward. BIG STAKES HERE…”

    “if you check out SCOTUS blog, you will see that on next month’s docket is: Gamble v. U.S., No. 17-646. Issue(s): Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause. They are desperate. The plan was to appoint Kavanaugh early this week so that he would be seated in time for this ruling.”

    “It was in the bag. Saves everyone involved from state charges. Not only Trump but all políticos who were knowingly enriched by the $$$ funneled through the NRA into the coffers of McConnell, Graham, Rubio, Ryan, etc. So if Kavanaugh gets appointed he’d effectively vote to stop states from charging Trump with anything! This alone makes the #StopKanavaugh movement that much more urgent.”

    Copied from the comments section from Dan Rather’s “News and Guts”

    Here’s some explanation by others.

    Can any of you lawyers here add clarification?

    The Republican DC country club set has orders from he who conquered them;

    GET THIS DONE NOW! Script whatever play you need to in order to save my ass from Mueller.

  7. Alan Keller; Kavanaugh’s repeated REFUSAL to give an outright response to the question of an FBI investigation was a tacit refusal to agree to such investigation. Just as those who refuse to vote are giving their tacit vote to support the status quo or our current Fascist government rule. I don’t expect you to understand what I just said when didn’t understand what Kavanaugh refused to say in answer to that simple question.


  8. William Rivers Pitt in an article inTruthout wrote this:

    “The TV talk would have you believe Brett Kavanaugh saved his nomination on Thursday afternoon. The talk is wrong. Kavanaugh’s nomination, at least before the Senate Judiciary Committee, was never in need of saving. All the Republican majority members of that committee required to pass him along to a full Senate vote was an excuse, no matter how tattered or shameful, to hang their hat on. They weren’t just “saving” Kavanaugh, however. In every way that matters, they were trying pathetically to save themselves.

    The nominee gave them that needed reason in the guise of an elongated tantrum, the likes of which one seldom sees outside the candy aisle of a supermarket or the local Chuck E. Cheese. The Honorable Brett Kavanaugh all but threw himself on the floor and screamed “I want it!” like a grasping, red-faced little boy who can’t quite reach the coveted cookies.

    The president loved it, to the astonishment of none. For Donald Trump, watching Kavanaugh on Thursday must have been eerily like looking into a mirror.”
    Michael Winship in an article in The Smirking Chimp wrote:
    “Then Judge Kavanaugh appeared and turned the same room in which spectators had wept upon hearing his accuser’s story into a spittle-flecked chamber of vitriol and hate. His face flushed and contorted, that sense of entitlement inculcated in youth turned to rage and victimhood.

    “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election,” he bellowed, “fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars and money from outside left-wing opposition groups.”
    Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge, Two meticulous reports on his judicial decisions, one by the Alliance for Justice (AFJ) and one by Public Citizen demonstrate that for him it’s all about corporations uber alles.

    Unless the FBI can come up with the Silver Bullet to kill Kavanaugh’s hopes to be on the Supreme Court, the Republicans have the votes to confirm him.

  9. Let’s hope those on the left now realize the importance of the courts in our daily lives. If you don’t vote, you are essentially giving up control to the conservatives, who have shown over and over again that they are more interested in jurist’s purity that in jurisprudence.


  10. imagine the supreme court,backing a womans claim for sexual harrasment,in the work place,and witnessed by workers who came foreward to back the aligations,to have a kavanaugh supreme court,denie,or just laugh it off. obviously,theres a total diffrence between the east and wests way of thinking,compared to the upper plains states,where i reside. take notice,these people here,truly believe, fords highs school or college assault,was what you expect,and accept. this is between me and the locals in getting on the road to talk more,but seeking just opinions. though brovado may be on my side,as i would without hessitation, deny someones continued life,if you touch my wife. and my own past experience,stopped a rape. ive backed women who were under assult by others. i do not accept,exploitation or,exploitation waiting to happen. Prof ford had a experience many can never shake, and the likes of grassley and graham,hatch,,obviously,have a deliberate disregard for others(obviously in many venues). we see the voting regime on the right,and how they denied obamas,real scotus choice,and now were slammed with crap like kavenaugh. theres probably 100 conservative justices who would make the field,i ask again,what is the kavenaugh plan,that these asswipes want so badly?. anyone who backed bush and cheney for torture,as a judge,doesnt need to be in america,much less on any bench,even on a basket ball court.

  11. By the skin of our teeth – the American public scored a blow for an attempt at justice yesterday. Jeff Flake looked like a condemned man speaking just before Sen. Grassley ‘announced the two hour rule’ suddenly and adjourned the committee. There is a lot and I mean a LOT the people that have been shoving our nation to a place of dictatorship and laws made by the ‘ruling party’ have to pay for. And they will. Socially people are aware and awake enough to realize it is time not just to speak – but to yell(!) in the ears of these wanna be ‘rulers’… And when religious organizations, Legal associations and the public are crying out for JUSTICE to be done right! To not listen invites a lot of other actions on the part of the People. I hope they don’t try to press it too hard because if they think the protests are big now… just wait! You push people too hard and they will push back!

  12. This Kavanaugh fiasco goes back to Mitch McConnell and his seditious actions and words.

    First, he pledged to make President Obama a one-term President. FAIL.

    Then, he stated that his proudest moment in government was to tell President Obama that he will NOT be allowed to fill the SCOTUS open position.

    Finally, he has said that nobody should worry, because Brett Kavanaugh would be confirmed for SCOTUS.

    Since Mitch McConnell is funded by the Koch brothers, it is clear who is in power. Once McConnell became Senate majority leader, he has ignored the Constitution and done everything he could to obstruct the rule of law for the benefit of his political ideology and his donors’ lust to rule.

  13. Many of my Republican friends expressed their support of Judge Brett Kavanaugh. And then Lindsey Graham displayed a temper tantrum that rattled the rafters. There seemed to be an implication that Graham was going to take his ball and go home.

    One never really knows, does one?

  14. We watched the video of the hearing and we wondered if Kavanaugh had been drinking before or during the hearing. He was belligerent and disrespectful, almost like he was drunk and his boundaries were blurred. I was astounded at how he spoke to the senators.

  15. Another motive, no doubt, is to have a solid partisan 5-4 Republican majority on the Supreme Court before the November election to make sure it rules the “right way” on any legal controversies resulting hacking, voter suppression, or other “boys will be boys” hijinks at the polls.

  16. The problem with Peggy’s declaration, “If you don’t vote, you are essentially giving up control to the conservatives, who have shown over and over again that they are more interested in jurist’s purity that in jurisprudence.” is it’s not supported by facts.

    Regardless of Dem or Rep POTUS’s, all of the judges have attended Harvard or Yale. We have over 160 law schools in the United States all across the country, even the more progressive law schools in California, yet none of them are represented on the highest court in the land. Not even a Midwestern law school. How is this possible?

    Even though I’ve argued about the formation of our “representative republic”, one cannot argue for our supreme court being occupied entirely by Ivy League schools. Those who argue about our country being a Meritocracy certainly have the highest courts makeup to substantiate their claims. It sure isn’t a representative of the USA.

    Anybody else sees a “RED FLAG” here?

    Let’s look closer at the existing “purity” of our SCOTUS:

    “Behold the status quo:

    Clarence Thomas attended College of the Holy Cross and Yale Law.

    Sonia Sotomayor attended Princeton and Yale Law.

    Samuel Alito attended Princeton and Yale Law.

    Elena Kagan attended Princeton, Oxford, and Harvard Law.

    Neil Gorsuch attended Georgetown Preparatory School––the same elite high school as Kavanaugh1––Columbia University, and Harvard Law.

    Ruth Bader Ginsburg attended Cornell University, Harvard Law, and Columbia Law.

    Stephen Breyer attended Stanford University, Oxford, and Harvard Law.

    John Roberts attended Harvard and Harvard Law.”

    Once again, no matter which political party we supported, we ended up with Ivy League lawyers/judges. It must be good to be filthy rich in the land of the uneducated. 😉

  17. Todd, good point on the “Origin of the Judicial Species on the Supreme Court”, like the Galapagos the Supreme Court is an island all to itself.

    David Smith, writes in Guardian:

    They blocked Barack Obama’s pick for the supreme court. They threw in their lot with Donald Trump, a political neophyte and TV celebrity facing multiple sexual harassment allegations. It is entirely unsurprising that the Republican party seems ready to ram through the confirmation of Brett Kavanaugh.

    Their logic: the end justifies the means.

    Republicans are aware that presidents, senators and representatives come and go, but supreme court appointments are for life. They aim to capture the court – with its power to shape abortion rights, worker protections and who gets to vote – for a generation. That, they have determined, is the big prize, even if it entails riding roughshod over the #MeToo movement and alienating millions of women.

    Whatever his feelings about Trump, McConnell saw him as a price worth paying for complete Republican control of Washington which, for example, enabled sweeping tax cuts for the rich.

    It was small wonder, then, that last week McConnell reminded hardliners at the Values Voter Summit in Washington how Trump is transforming the courts. The president has appointed 26 of 167 current circuit judges, more than any recent president at this point in their first term.

    First, exuding a sense of entitlement, Kavanaugh gave a roar of white male privilege straight from the Trump playbook.

    Charlie Sykes, a conservative author and commentator, said on Friday: “We talk about the Republican party becoming Donald Trump’s party. We’re seeing the party that followed Donald Trump is now becoming Donald Trump. It is embracing his smash-mouth, conspiracy theory style of politics.

    “The danger to the institution of the supreme court is incalculable at this point. For a judge to go off on such a brazen partisan rant is an extraordinary moment. It surrenders any pretence he has to a judicial temperament.”
    Kavanaugh, delivered what the Republican Base wanted to hear and see the angry white man, even though Kavanaugh’s wealthy, cloistered, privileged life is far from the typical Trumpet Voter.

  18. I despair until I recall some of the past “Supremes” Taney comes to mind, but there is a huge crop to choose from. Thomas… Sometimes citizens need to see just how toxic things can get. Especially in times of plenty when hard, truly hard times are dimming memories. Hope we all get the lesson and advance to the better.

    Thanks, Ms. Kennedy for a good and clear explanation of the attributes of a worthy judge.

  19. The comments illustrate two things.

    1) The women understand are more than we me how disastrous Kavanaugh’s appointment would be for more reasons than just a Republican win.
    a) They KNOW because of his tantrum that not only could he have abused Dr. Blasey, but that he DID abuse her, and, once an abuser always an abuser.
    b) They KNOW that he is a dangerously demented individual and that he will not change, but instead, will likely deteriorate further on the bench.
    c) They realize that while his legal opinions are certainly suspect it is his desire to punish those he feels “disrespected” him will do at least as much, or more, damage.

    2) We men are rightly concerned that he is simply a partisan hack and that he will be in the pocket of the Kochs forever and a day.
    a) He is bought and, and as Simon Cameron, former senator and Lincoln’s Secretary of War said of another, “An honest politician is one who, when he is bought, will stay bought.”
    b) His “honest” opinions are “dishonest” at their core.

    I have observed that women are both more sensitive and more realistic when assessing people. I don’t mean that in any negative or sexist way. I mean that 70+ years of experience has taught me to heed their instincts.

    They know Kavanaugh is a pig–maybe even a rabid one. I honor their feelings.

  20. With respect to Sheila’s comment about being an advocate, and therefore not comfortable with the idea of being a judge, I thought all lawyers were trained to be advocates. How else could a child molester have a defense attorney?

  21. Of all the discussions of Kavanaugh’s response to Ford’s assertions that I have heard or read, yours is the most cogent and well put. (Although Steven Colbert’s was pretty funny and Alexandra Petri’s HOW DARE YOU DO THIS TO BRETT KAVANAUGH! in the Washington Post was spot on.)

    I look forward to your discussion of the Gamble case.

  22. “As Democracy is perfected, the office of the president represents, more and more closely, the inner soul of the people. On some great and glorious day, the plainfolks of the land will reach their heart’s desire at last, and the White House will be occupied by an downright fool and a complete narcissistic moron.” H. L. Mencken July 26, 1920. I found this quotation on another person’s Facebook page and immediately concluded that not only does it apply to the White House, but to the GOP members of Congress. Because of my age, I regret I will not live long enough to see how history will record the current administration. I can only hope truth will somehow prevail, but I confess my hope runs very small.

  23. It should also be noted that Thursday’s hearing was not a situation in which Kavanaugh was blindsided by difficult and unexpected questions. Kavanaugh had plenty of time with many advisors to prepare for how he was going to present himself during that hearing, knowing that his demeanor would be expected to comply with the standards by which judicial conduct is judged — either he lost control and forgot all of the advice that he had been given, or his politically-charged outrage was strategically contrived to manipulate public perception. Either way, his demeanor during he hearing places his qualifications to serve on our nation’s highest court into further question.

  24. The problems in this country today are not about politics; they are about the loss of humanity, logic, common sense, dignity, human decency and hatred now rules. But politics is the only way out of our current situation.

    What we watched on Thursday is the latest and strongest evidence as we watched one woman who should have been a shrinking, frightened victim as she rose above all those set against her before she ever appeared before this country and the world which is watching every move we make. She stood strong again a supposedly intelligent, stable, highly educated man who is seeking a lifetime job of setting rules and laws over the lives of millions of Americans, who appeared before us as an angry, sniveling, childishly pouting and casting blame for his being questioned regarding his past behavior on a past president, his wife and their money as a political set-up by the opposition party to ruin his reputation. He evidenced nothing to prove to us that he deserves the honor of being placed in a position in the highest court of the land in this country; the country which until two years ago the leading nation on this earth. We are now the comic relief, the clowns in this current three-ring circus.

    If not for Sheila’s daily blog; many of us would be foundering, trying to understand what is going on around us and why we now live in fear of not only our government but our neighbors and in too many cases, our family and friends who see us as the enemy. Will we stand as strong as Dr. Christine Blasley Ford or will we snivel and cast blame elsewhere for this situation we find ourselves in?

    VOTE BLUE; dammit, VOTE BLUE!

  25. Mueller is a very smart man. The indictments against those like Manafort and Cohen for example, do not include all of the hundreds of crimes they have committed. For this very reason.

    For a presidential pardon to reach any charges on the state level, they would have to be the exact same crimes committed under the exact same circumstances. In the case of the Mueller probe, the defendants Manafort and Cohen realize that many of their other crimes can be brought against them at the state level. Crimes they are not being indicted for on the federal level.

    I don’t think the Gamble case will have any effect on this aspect of the Mueller probe. For example, if DJT would pardon one of them on the Federal indictments currently, the state would be free to bring charges on a myriad of other crimes committed by that person. Those crimes are totally separate and different than the crimes they would be tried for under Federal indictments.

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