A lot of folks don’t seem to understand the purpose of the Senate Judiciary Committee’s hearing on the nomination of Judge Kavanaugh. It’s not a trial. It’s nonsense to talk about “innocent until proven guilty” and “evidence.” Those are terms for a court or administrative law performance. They have little if anything to do with the issue on a judicial nomination.
This is a job interview.
This is a decision whether or not to hire a person to be a justice on the U.S. Supreme Court. Since it’s a lifetime appointment,1 you likely want to exercise a little bit of extra care in the hire decision, but basically it’s a decision whether or not to hire a person.
Most of us have been interviewed for a job. A lot of us have interviewed someone for a job. It’s not that complicated. Let’s look at whether or not you’d “hire” Judge Kavanaugh to be on the U.S. Supreme Court based on his job interview.
We’ll start with the job description. Part of it is set out in the U.S. Constitution. Part of it is called the Code of Conduct for United States Judges. That Code sets the minimum standards of conduct expected of all federal judges, include U.S. Supreme Court justices. Job description in hand, let’s walk through Kavanaugh’s “interviews.”
The Code of Conduct, in Canon 1, says:
A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.
Judge Kavanaugh has lied about his involvement in illegal hacking of email servers. He used information leaked to him by an acquaintance to shepherd President Bush’s court nominations through the Senate. He denied it when confronted back in 2006, but emails made public since really show beyond any question he knew the emails were stolen. You may not want to hire an employee who broke the law, and then lied about it.
Judge Kavanaugh almost certainly lied about his drinking. Friends and classmates from high school and college have come forward and described, in detail, frequent heavy drinking episodes. If it were simply a matter of drinking, even getting very drunk a few times, maybe it wouldn’t affect your hire decision. But lying about it now? That’s an issue.
He has lied about the women who accuse him.
And he lied about yearbook slang.
Yes, we’re a little inured to lying. The President, who has racked up more than 5,000 lies in office, according to the Washington Post, and has made “alternative truths” routine. But we elect politicians for a term and can vote them out. This is a lifetime appointment.
There’s real cause for concern with a judge who lies, especially one who lies under oath. If you don’t get that, you probably shouldn’t be doing the job interview.
The Code of Conduct, Canon 2, says:
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
The two instances of lying violate Canon 2. Judge Kavanaugh’s rant about the Clintons, Democrats and his threat that “The consequences will extend long past my nomination. The consequences will be with us for decades.” are deeply troubling violations of the rule against the appearance of impropriety.
Columnist John Young wrote for the American-Statesman,
Kavanaugh’s partisan rant should disqualify him from the lifetime post he seeks. That post requires independence and dispassion about the parties that might appear before the court. He just showed his hand. He sprang a sprocket before our eyes. Like the president who appointed him, Kavanaugh is unfit.
Young said, “He sprang a sprocket before our eyes.” He “Borked himself.”2 Stated in job interview terms, confronted with criticism he lost his self-control, he blamed others, and he threatened dire consequences. That’s pretty far across the line for “the appearance of impropriety.” A judge is the person in the courtroom who is supposed to be in control, neutral and even-tempered. No one watching Judge Kavanaugh’s tantrum, his over-the-top display of outraged manhood, would want him to be the judge on their case.
The Code of Conduct, Canon 3 says,
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
The duties of judicial office take precedence over all other activities.
Some of the specific requirements of Canon 3 bear on assessment of Judge Kavanaugh’s job interview:
(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
Judge Kavanaugh was shockingly discourteous to women members of the committee, and rude to all the Democratic members. He was the opposite of dignified. He was disrespectful. Remember, the Canons are the minimum standards expected of judges. The Commentary to Canon 3 states, “The duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment, prejudice or bias.” Judge Kavanaugh threatened bias.3
A lot of lawyers, including the American Bar Association, thinks Judge Kavanaugh failed his job interview for those reasons alone.
Seriously, would you hire a man who loses it over the first hard question? Would you hire a man so incredibly defensive?
If we weren’t in the most hyper-partisan period of government since the prelude to the Civil War, the Senate Judiciary Committee would decline to hire Judge Kavanaugh to be a supreme court justice. But unless the crippled FBI investigation finds the proverbial smoking gun, the committee will recommend the Senate approve a patently unqualified candidate..
Which leaves it to the U.S. Senate. Are there Republican members of the Senate left who will refuse to hire someone who has disqualified themselves from the office?
We’re going to find out.
- Technically, he can be impeached, a kind of “fired.”. There have only been 15 impeachment proceedings of federal judges in the country’s history. Only one involved a supreme court justice, Samuel Chase, in 1804, and he was acquitted by the Senate. So, yeah, lifetime. ↩
- According to the Oxford English Dictionary, says “the verb ‘bork’ is used as slang, to ‘defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.’” Judge Kavanaugh Borked himself. ↩
- A younger, kinder Alaska lawyer wrote a nice series of tweets making similar points. If you are on Facebook, the screenshots are public here. ↩