Balkinization: More on Kavanaugh (if you can stand it)

More on Kavanaugh (if you can stand it)

Sandy Levinson

I was asked by my daughter (and others) why I did not sign the letter opposing Kavanaugh's nomination. It's certainly not because I'm not vehemently opposed to confirming him. Nor can I blame it entirely on learning quite late about the existence of the letter. Rather, I believe that the "judicial temperament" complaint, though real, is also something of a red herring. Not only is it difficult exactly to figure out what that entails. But it is also open to the pervasive game of "whataboutism," as with Justice Ginsburg's openness about her appalled opposition to Donald Trump as a possible president. A few people on the left noted that that was a very stupid thing to do, prudentially, but no one suggested for an instant that that should put her tenure on the Court in question or lead her to recuse herself in any case involving Donald Trump's assertions of executive power. Secondly, what one might say about Kavanaugh is only that he was unusually open in his partisanship. But as someone who has described the current Republicans on the Court as "running dogs of the capitalist empire," I scarcely believe that judges fail to bring with them to the Court a series of political priors that are pervasively evidenced in many of their opinions. Jack and I have distinguished between "low politics" and "high politics." I opposed Kavanaugh from the very beginning because I think his "high politics" include, among other things, a dangerous degree of deference to executive power, not to mention, of course, his hostility to reproductive choice (although I believe that, as an exercise of "low politics" commanded by his loyalty to the Republican Party, he will choose to strangle Roe by finding all regulations to be "reasonable" and not "undue burdens" on women rather than to overrule Roe and make the Republican Party bite the bullet on the degree to which it's really willing to criminalize abortion). But, as already suggested, I believe that Democratic nominees also bring with them their own political priors (which I find more compatible). What is implausible for any nominee is Clarence Thomas's claim that he would "strip down to his running clothes" and simply shed any political beliefs he might previously have expressed. That being said, I do think that he has also exemplified a degree of dishonest opportunism that further disqualifies him, and I would happily have signed a letter that had focused more on that.

For example, why shouldn’t his White House remarks be enough to serve as disqualifying for anyone who is genuinely undecided? A. He clearly was lying, without a modicum of excuse save pandering to his patron, when he praised Trump for conducting a comprehensive nature search for a new justice. No halfway honest person could possibly have said that. It bespoke a deep character flaw of sycophancy and opportunism. Wouldn’t it have been sufficient to thank Trump for this expression of confidence and let it go at that? B. Although the Constitution ostensibly prevents inquiry into religious views—and I have been thoroughly castigated for suggesting that it is reasonable to ask someone who presents religious beliefs as central to his/her identity exactly what that means—he made his Catholicism front and center as a reason to support him (and to treat Roe as, at most, an inconvenient hurdle to overcome, whether or not to be overruled). Susan Collins is simply a fool to trust Kavanaugh. Daniel Webster, in his Seventh of March Speech justifying his support of the Compromise of 1850, at least could plausibly claim to be trying to save the Union. Collins has no excuse whatsoever for her submission to the tyranny of Donald Trump and Mitch McConnell. She deserves all of the obloquy that was visited on Webster, who had the integrity to resign from the Senate (and then become Secretary of State). I'm sure that Trump could find her a nice country to become ambassador to. But that's a bitter digression, and I now return to Kavanaugh. My own view is that Kavanaugh's ostentatious emphasis on his Catholicism was simply part of his thoroughly contrived exercise in impression management. Whatever one thought of Robert Bork, whose confirmation I opposed, he was a paragon of honesty in the way he presented himself. Unfortunately, the lesson learned from that was the importance of deception in self-presentation, and Kavanaugh gave us a master class in what even some of his champions are honest enough to admit were some “deceptive” answers even if, perhaps, not perjury as a matter of law. (My own view is that a Democratic House in January should become impeachment proceedings based on his dishonest answers to a variety of questions.)

I’m beginning to think we’d be just as well off by returning to the old practice where nominees remained silent and let their champions and detractors duke it out. The only thing the contemporary process does, regardless of whom we’re referring to, is to diminish the respect for (and I suspect this includes self-respect) smart and talented individuals who have to spout nonsense about being umpires and their devotion to some barely analyzed notion of “the rule of law” or respect for (some) precedents and to renounce the fact that their life experiences (including “empathy”) might be relevant, along with whatever constitutes legal logic. It is as if Holmes never wrote The Common Law or The Path of the Law.

But the most important begged question left open by the letter--and this would have been true even if it emphasized more his fundamental dishonesty and lack of character--is what now. My immediate inclination is to hope that a million men and women will march on Washington to shut the Congress down. It is, in many ways, no more legitimate than was the British Parliament in 1775. And Alexander Hamilton, at least as presented by Lin Manuel-Miranda, called on his fellow Americans to "rise up" against an illegitimate government. As Michael Tomasky reminds us in this morning's New York Times, borrowing (with attribution) from a paper by the political scientist Kevin McMahon, Gorsuch and Kavanaugh represent the first time in our history that someone has made it to the Supreme Court after being nominated by a president who did not have majority support from the electorate AND was confirmed by senators representing less than a majority of the US population. There is no serious sense in which our present system can be described as congruent with 21st century notions of democracy (by which I do not mean unimpeded majority rule). But the most serious argument against civil disobedience is not its immorality or illegality, but, rather, the real probability that our fascistic President would use it as an excuse to declare martial law and to further the dangerous slide toward full-scale authoritarianism. So the correct course might be to remain relatively quiet. But that is not in the least because we should be "good sports." This represents a rape (and I use that word advisedly) of anything congruent with a Republican Form of Government, unless that is translated into government by power-mad Republicans.

Posted 4:20 PM by Sandy Levinson [link]

Comments:

For one thing, it is open to the pervasive game of "whataboutism" concerning Justice Ginsburg's openness about her appalled opposition to Donald Trump as a possible president.

She wasn't up for the seat. She apologized. People thought she was wrong. It's like Ben Wittes saying both Kavanaugh's WSJ op-ed AND Stevens comments the other day were wrong. Fine. (I don't really agree.) But, it doesn't get him off the hook. Plus, net, he already had a lot of partisan baggage.

Secondly, what one might say about Kavanaugh is only that he was unusually open in his partisanship.

Yes. Strength matters. Appearance of impropriety matters. If that is a bad rule, maybe change the rule in place. But, the rule is there.

I’m beginning to think we’d be just as well off by returning to the old practice where nominees remained silent and let their champions and detractors duke it out.

Good luck with that. We have moved on. The public wants openness. And, they will still have some way to make their case known.

If you don't want to sign the letter, that's fine. I didn't see one of the professors from Dorf on Law who is strongly against his nominee sign either.

===

Forgive me for adding this, but GM did not allow comments this one time, and it is blatantly wrong.

She did not receive a fair process. She never got a hearing; a fact many people conveniently ignore now.

Harriet Miers was in the early period of her vetting in the committee and there was strong opposition. So much there was a request for clarification of her answers. By the end of that first month, it was clear she didn't have support. She had Bush withdraw her name. I'm not sure what is not "fair" here.

Any dig at opposition to Garland's treatment is bogus. Anyway, "Bart" is on the road to be confirmed 51-49 tomorrow.

# posted by

Joe : 4:33 PM

Two things: (1) Should the second sentence begin, "It's certainly NOT..."?
(2) I doubt that Collins is a fool. She is motivated entirely by her calculations as to what will increase her re-election chances. It is not that she trusts Kavanaugh on Roe v. Wade; it's that she wants to claim to support Roe v. Wade while voting for a nominee whom she knows to oppose it. She wants to have her cake and eat it too. Likewise, she demands an investigation, then falsely claims that it was thorough, so that she can vote for Kavanaugh while appearing not to do so automatically, like the other Republicans, but to be thoughtful about it. Again, she wants to have her cake and eat it too.

# posted by

Henry : 4:47 PM

The higher levels of the legal profession -- professors at the top schools, partners at the prestige firms -- really disgraced themselves in responding to Kavanaugh's nomination. From Akhil Amar to Lisa Blatt to far too many others, they allowed themselves to play a game of scratching each other's back with a nominee who is blatantly unqualified, by both temperament and conduct, to sit on the Court. I'd really like to see some mea culpas here and some reassessment of the role the profession plays in the case of nominations.

# posted by

Mark Field : 5:01 PM

I agree with Henry that Collins is deceitful rather than foolish. My guess is that she has no intention of running for re-election, but expects an appointed position or some form of wingnut welfare as a reward.

# posted by

Mark Field : 5:03 PM

I respect most of this critique and would have preferred a letter less bought-in to the mythology of the court. But the false equivalence between Ginsburg's interview and Kavenaugh's hearing is an extraordinary example of gendered standards for control of one's emotions, displays of arrogant contempt, etc.

Also, when you play whataboutism but preface it with "it's open to," as if the problem is that other people, not you, will equate the two, that has a name too. It's called concern trolling.

# posted by

Jennifer Hendricks : 5:13 PM

Exactly right, Jennifer. I had a paragraph in my first comment about the false equivalency involved there, but deleted it. I should have left it in.

# posted by

Mark Field : 5:37 PM

Good luck with the mea culpa, Mark.

There will likely be some backtracking from various signatories of one or maybe even both (perhaps less from the female law professor letter getting less attention) letters. Some "move on" sentiment ala Bush v. Gore will be much harder here though.

(and, even there, it poisoned the well some)

# posted by

Joe : 5:43 PM

"My immediate inclination is to hope that a million men and women will march on Washington to shut the Congress down. It is, in many ways, no more legitimate than was the British Parliament in 1775."

See, this is my real concern, worse even than watching the left reject the presumption of innocence: The left in America are losing their capacity to accept that any political outcome they don't like can be legitimate. Have nearly finished losing it, even.

And what are your million men and women going to do when Congress laughs at them, and says, "A lot more than a million people elected us, why are you entitled to negate their votes?" Get violent?

Somebody already tried to violently reverse the last election, remember? Attempted to gun down a good many of the Republican caucus at baseball practice. Is this what you want?

Because that's the territory you're edging into here.

# posted by

Brett : 6:27 PM

I don't expect any mea culpas, but they're owed. Including by many of Prof. Balkin's associates. And Prof. Magliocca's post below shows some serious misunderstanding of the judicial nomination process which he (and others) need to re-think. I don't want to derail this thread, but it's a shame he didn't open comments there.

# posted by

Mark Field : 6:56 PM

"worse even than watching the left reject the presumption of innocence: The left in America are losing their capacity to accept that any political outcome they don't like can be legitimate"

Brett, like many conservatives these days, has an amazing, astounding lack of self-awareness.

Who was it that has here many, many times concluded that Hillary Clinton committed crimes from insider trading to violation of espionage laws to planting evidence at a suicide scene all when there wasn't even a formal charge, much less a prosecution, indictment, trial or conviction? Which side was it that had as a popular chant at their Presidential candidate's rallies cries to "lock her up?" Which side was it, that when they lost the election in 08 concocted and embraced the idea that the winner was illegitimate because he wasn't really a citizen and had a forged birth certificate? Heck, during this very debate Brett made an assertion that a Democratic Senator leaked the confidential letter of an alleged attempted rape assault for momentary partisan reasons without an iota of evidence (at least the Kavanaugh allegations had a witness coming forward)!

It's the Right and the Republicans of course. They don't care about these words they use, they never did. It's all just a propaganda point. The people who cry 'presumption of innocence' today chanted 'lock her up' yesterday, if the winds shift so will they. They're trying to win power, not have some honest discussion based on any principle.

# posted by

Mista Whiskas : 7:13 PM

My take on Kavanaugh. Before his insane performance at the shared Ford hearing were I a senator I would have voted to confirm him. He's qualified (ironically given Bart's rantings here about the 'mandarin class' you don't get any more mandarin than that guy's background). His opinions are not out of the judicial mainstream of his party. And I think there should be some deference to the party that won the last election.

After that performance though, I would vote no. He's cast the court in the most nakedly partisan position in history and shown a temperament beneath what we should expect of a high official.

# posted by

Mista Whiskas : 7:17 PM

"Who was it that has here many, many times concluded that Hillary Clinton committed crimes from insider trading to violation of espionage laws to planting evidence at a suicide scene all when there wasn't even a formal charge, much less a prosecution, indictment, trial or conviction?"

Yeah, that's how it goes down when you're part of an administration that's willing to corrupt the DOJ. And, if she had won the election, she'd be President anyway, because the election is what renders the office holder "legitimate", not my opinion of the office holder.

I wish Sandy could accept that. It doesn't matter how awful he thinks Trump is. That has no bearing on his legitimacy.

# posted by

Brett : 8:59 PM

"Yeah, that's how it goes down when you're part of an administration that's willing to corrupt the DOJ."

Like firing the FBI head because he won't break department rules?

"if she had won the election, she'd be President anyway, because the election is what renders the office holder "legitimate"

Like conservatives, including the current President didn't try to illegitimate Obama when he won on the theory he wasn't a citizen?

Every accusation is a confession.

# posted by

Mista Whiskas : 9:22 PM

I think legitimacy comes from one's actions. We are a constitutional republic, a limited government, and merely because a majority under the system in place elects someone, that isn't enough.

I like democracy more than some people, but our democracy is of that sort. Elections do add some benefit of the doubt. The "presumption of constitutionality." I don't think Sandy Levinson's co-authored article was overly convincing there as to Trump though Trump's actions give enough evidence to have the courts in various cases to overrule that presumption. Others trust the people in power more, in part because they have the right enemies. Philosophically, that's understandable.

The system provides checks. One is the Senate. I have voiced an opinion on the senator's oath. Again, that is different than raw power. Many from the beginning voiced some concern for that oath and the responsibility it brings. I think it failed today. It wouldn't be the first time, but I think the case here was pretty blatant. Senator Murkowski and others have the insight on what it might breed.

And, Mark references the role of others, who have some importance in aiding and abetting the system in place. As with segregation, it doesn't work merely because of the governmental actors. The letters was a late awareness of what was at stake that should have been put forth earlier. The evidence was there before that Thursday hearing. It was not truly a surprise, but a stripping of the veneer.

We live in interesting times. As usual, that is something of a curse.

# posted by

Joe : 9:45 PM

It's over, the Mainiac has sung. But voters in Maine will keep her awake singing "Wake Up, Little Suzy" over and over again. (Maybe others at airports.)

What are the alternatives to "We live in interesting times"? That's how I have viewed (so far) my lifetime. I can, but won't, enumerate the interesting times I have lived through, but throughout it's been two steps forward, one step back. We may not make the finish line, but we get closer. Like ballerinas, we must stay on our toes, look to the future. Like restarting the ERA process.

# posted by

Shag from Brookline : 6:50 AM

Following my 6:50 AM comment, I checked in at Daily Kos and last night's "The open thread for night owls" and read a lengthy excerpt from Christopher Browning's essay "The Suffocation of Democracy" in The New York Review of Books. I downloaded the entire essay for reading later today. The excerpt makes some troubling comparisons for our current "interesting times." So maybe occasionally it's three steps back. But can we go back to The Roaring Twenties?

# posted by

Shag from Brookline : 7:28 AM

Shag, just read that article, very interesting, thanks for flagging it here

# posted by

Mista Whiskas : 11:14 AM

I just finished reading Browning's essay. It is very sobering. Here's a tease that may also tie-into JB's new post:

"If the US has someone whom historians will look back on as the gravedigger of American democracy, it is Mitch McConnell. He stoked the hyperpolarization of American politics to make the Obama presidency as dysfunctional and paralyzed as he possibly could. As with parliamentary gridlock in Weimar, congressional gridlock in the US has diminished respect for democratic norms, allowing McConnell to trample them even more. Nowhere is this vicious circle clearer than in the obliteration of traditional precedents concerning judicial appointments. Systematic obstruction of nominations in Obama’s first term provoked Democrats to scrap the filibuster for all but Supreme Court nominations. Then McConnell’s unprecedented blocking of the Merrick Garland nomination required him in turn to scrap the filibuster for Supreme Court nominations in order to complete the “steal” of Antonin Scalia’s seat and confirm Neil Gorsuch. The extreme politicization of the judicial nomination process is once again on display in the current Kavanaugh hearings."

Many of Sandy's concerns over the past two years are reflected in the essay. It's long. I read it on my desktop utilizing its magnification feature because of eyesight issues. Those concerned with fascism may have reason to be concerned.

# posted by

Shag from Brookline : 11:52 AM

"Then McConnell’s unprecedented blocking of the Merrick Garland nomination required him in turn to scrap the filibuster for Supreme Court nominations in order to complete the “steal” of Antonin Scalia’s seat and confirm Neil Gorsuch."

So, Democrats lack all agency, such that everything they do, like abolishing the filibuster for judicial nominations, or filibustering Gorsuch, is the fault of Republicans? And can you be unaware that Democrats like Reid were bragging about how they were going to abolish the filibuster for Supreme Court nominations, back in October of 2016? (When they still thought they were going to win it all.)

"How dare you do to me what I said I was going to do to you!" has never elicited much sympathy.

# posted by

Brett : 12:23 PM

Long life to John Paul Stevens (98) and youngsters like Shag.

The battle continues as some (like older Biff in "Back to the Future II") say "this looks familiar."

# posted by

Joe : 12:59 PM

So I guess Brett is all in for his fascist leader. But that's not unusual for a lemming.

# posted by

Shag from Brookline : 2:11 PM

"Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population"

We are ruled by the consent of land, not the people.

# posted by

Mista Whiskas : 6:51 PM

Sandy,

Do you think Jason's objection (in an earlier post) to the letter's interpretation of Federalist 78 is a sufficient reason not to sign the letter? Or that perhaps it ought to preclude someone from signing it?

Best wishes,
Mark Scarberry

# posted by

Mark Scarberry : 9:54 PM

Starting with the "Russia Thing," I have been concerned that Trump as president is a national security risk. Browning's essay makes certain comparisons of the current situation with certain failings beginning with WW I that led to WW II. Browning refers to Neville Chamberlain to compare with Trump's fondness for Putin, Kim Jong un, Duterte and other authoritarians, with some modification. Then consider Robert Kagan's OpEd in the WaPo on Trump's trade wars impacts upon foreign policy. Trump is a march back in time.

By the Bybee [expletives deleted, despite Gina], Judge, now Justice, K connects the Trump Administration to the Bush/Cheney Administration, perhaps to woo back some GOP Never Again back into the Trump' Kamp [sic]. Recall that in the Bush/Cheney Administration's Iraq invasion in 2003, the WH legal trio of Yoo, Bybee and Kavanaugh. Much was learned about Yoo's role with interrogations, etc, so Yoo could not get promoted. But Bybee and Kavanaugh were rewarded with appointments as Circuit Court judges. For Bybee's confirmation, there was not disclosed his role in legal advice to support Bush/Cheney interrogation and other questionable approaches post-9/11. However, after Bybee's confirmation, such info surfaced. This might have delayed Kavanaugh's confirmation that took almost 2 years. Now Trump's promotion of Bush/Cheney's loyal Kavanagugh to SCOTUS may cause some of these GOP Never Again to Maybe Again. How convenient.

Back to Browning's essay, it discusses Hitler's program for rewarding the right women to have more children and punish the wrong women for having children. Might America's changing demographics be limited by white women having more white children? Some Republicans have suggested such, sort of a pro-life movement without contraception, except for those women in the changing demographics?

# posted by

Shag from Brookline : 9:07 AM