Posted by: dacalu | 3 October 2018

Kavanaugh and the Triple Standard

The recent confirmation hearings have generated a great deal of emotion. We share a common concern for justice, particularly when it comes to our government and the highest court in the land. This commitment leads many of us to speak incautiously, both in defending our own position and critiquing others. (Search for “attribution bias” if you want to know more.) With that in mind, I wanted to say a few words about three related issues of justice and how they fit together.


The Legal Standard

I take pride in a US commitment to the rule of law. This includes such principles as “due process” and “innocent until proven guilty.” Both exist as checks on government power. Both provide us with protections against the government taking things away from citizens.

Many supporters of Brett Kavanaugh worry about government overreach. They want to be sure that due process does not go away. They are right to point out that Judge Kavanaugh has not been convicted of any crime and that it would be unfair to label him a sexual predator.

I do not want to see a time when people are deprived of liberty or property solely on the testimony of another person.

I doubt that there will ever be sufficient evidence to prosecute or even open a legal investigation into charges by Dr. Christine Ford and Deborah Ramirez. (I do note that there is no statute of limitations in Maryland. There is in Connecticut.)

To the best of my knowledge, no such legal proceedings are under way. The US Senate is not considering whether to deprive Judge Kavanaugh of liberty or property. They are considering whether to elevate him to a lifetime seat on the Supreme Court. Concern over the legal standard is valid, but not applicable.


The Political Standard

What standard should the Senate use? This presents a more difficult question. The simplest answer involves trust. To whom should we entrust defense of the Constitution?

As the core document and final authority in our republic, the Constitution forms the heart of our identity. The Supreme Court interprets it for us. That is a noble, dangerous, and difficult job.

The President and Senate, rightly, take great care in deciding who will exercise this power. Living in a republic, they look for people trusted not only in political circles, but by the nation.

While the legal standard leans toward the accused, the political standard errs toward the country. 

For most of our history, Justices have been chosen to stand above party politics. At best they aspire to be impartial; at least they aspire to rule impartially. Their job – as argued vehemently by Republicans – is not to decide what is just, but to impartially apply justice as set forth in the constitution, law, and precedent. This is their key responsibility and must be part of the job requirements. It is critical, then, that we find Justices who are extraordinarily calm and thoughtful.


The Judicial Standard

The most common statement of the judicial standard is that judges should be above “the appearance of impropriety.” To preserve the public trust, they must avoid not only actual trespass but apparent trespass. They must appear unmoved by anything but the law and reason. From this, we get the idea of judicial temperament.

A judge must be a thoughtful advocate of the law, when everyone else is caught up in partisanship and moral wrangling.

Anyone can advocate for justice; a judge must do justice.

A citizen may get excited about anything and their excitement should not be held against them by the government. Their feelings and opinions cannot be used as grounds for depriving them of liberty or property.

For exactly the same reason, government officials face the opposite standard. Their feelings and opinions must be weighed before they are handed power over others. They must be trusted to wield their power impartially.

Judges face the highest standard of all because they the arbiters of partiality in others. They are the protectors of liberty and property. They are agents of the rule of law. If they will not defend it, no one else can.

Brett Kavanaugh has made it clear that he feels entitled to a seat on the Supreme Court. He believes that the Democrats (and mysteriously the Clintons) are conspiring to deprive him of that seat. This gives me profound doubts about his ability to represent everyone impartially.

It may not be good for Brett Kavanaugh. It may not be fair.

It is far more important for the process to be good for the country. If he cannot place country above self, reason above emotion, law above desire – even when attacked – especially when attacked – he is not the man for the job.


A Note on Investigations

Our country has a terrible track record when it comes to taking accusations of sexual assault seriously. Because so many victims have not been heard, we must err on the side of listening. We must learn to hear, question, and investigate allegations.

This does not entail legal, political, or judicial consequences. It does require taking the time to learn before making legal, political, and judicial decisions.

It is also important that the most public deliberations be the most thorough. The Supreme Court nomination sets the standard for all lesser appointments.

I believe that the Republican majority has been wise in scheduling a hearing and calling for an investigation. I also think it took strong public pressure.


A Note on Partisan Politics

Republicans currently control the White House and both houses of Congress. They deserve all credit or blame for the nomination and approval (or not) of Brett Kavanaugh. Democrats simply do not have the leverage to stop approval. Public opinion has caused Republican senators to slow the process.

Personally, I would like to return to non-partisan nominees. That means that the party in power will have to show restraint. Just like a good judge, a good party, when given power, yields for the good of the whole.

I think we would be better off with a Democrat nominated and Republican confirmed nominee (e.g., Merrick Garland) or a Republican nominated and Democrat confirmed nominee. I hope we can return to the US norm of building a court from the best, brightest, most rational and least partisan among us.


A Note on the History of Nominations

The vast majority of Supreme Court nominees have passed Senate confirmation without comment. Of 113 Justices to date, 68 passed by acclamation, 6 by unanimous approval, and 11 more with an overwhelming majority (> 9/10 approval).  That means three out of four Justices were chosen by the whole for the whole.

Very few Justices stand out for contentious votes (< 2/3). Andrew Jackson pushed through three Justices. The first, Roger Taney (1836, 29-15), wrote the decision in the Dred Scott case, arguably the worst decision in court history. It ruled that persons of African descent were inferior, cannot be, and were never intended to be US citizens. Buchanan appointed Nathan Clifford (1858, 26-23); Garfield appointed Stanley Matthews (1881, 24-23); Grover Cleveland appointed Lucius Lamar II (1888, 32-28); Taft appointed Mahlon Pitney (1912, 50-26).

In this context, the modern era of partisan nominations appears to be an aberration. It started when the elder George Bush appointed Clarence Thomas (1991, 52-48). Ginsburg, Breyer, and Roberts passed with large majorities, but subsequent Justice were less popular. George W. Bush appointed Samuel Alito (2006, 58-42). Barack Obama appointed Sonia Sotomayor (2009, 68-31). [Elena Kegan (2010, 63-37) came recommended by Justice Scalia and received more than 2/3 approval.] Donald Trump appointed Neil Gorsuch (2017, 54-45).

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