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of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.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.
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.