A rare guest post on Wickersham’s Conscience. WC saw this on Facebook, where it had been shared by a Facebook friend. WC doesn’t know Sam Turner, although, as she says, she currently lives in Bethel, Alaska, where WC lived a long time ago. This is a bit longer than the usual WC blog post, but it’s worth your time.
Someone on twitter recently asked residents of certain states to direct message him with their concerns about Judge Kavanaugh. This was my response, slightly edited to avoid the many typos that come from hasty direct messaging and with a few additions I thought of later:
My name is Sam Turner, and I recently moved to Bethel, Alaska. Before that I lived in Anchorage. I’ll try to sum up my feelings.
1. Initial thoughts when Judge Kavanaugh was nominated
My initial thoughts on Judge Kavanaugh when he was nominated were mixed. I had always thought of him as a principled jurist, and he never seemed like an ideological extremist. His opinions were much more grounded in fact and logic, and much better written, than, for example, Justice Gorsuch, whose nomination I did oppose. Of course, I was worried. The appointment of another conservative judge to the Court would mean the complete halting of any expansion of civil rights and, in fact, the regression of those rights.
(The following concerns about specific legal issues focus only on those areas where Judge Kavanaugh is likely to substantially disagree with Justice Kennedy. Justice Kennedy was a very conservative Justice overall, so most areas of the law will not see much dramatic change. This section highlights some of the areas that will change and will change for the worse.)
(a) LGBT rights
LGBT rights have made strides in recent years. That would end and would be reversed. It is unclear whether Judge Kavanaugh or dissenting Justices on the Supreme Court would vote to overturn some of these decisions. Given how passionate Chief Justice Roberts’s dissent in Obergefell v. Hodges was and given Kavanaugh’s writings on gay rights and his rights jurisprudence generally, I think it is more likely than not that Obergefell would be overturned and that the legality of gay marriage would return to being a state issue. This is horrifying for the nation, and not the best for me personally, as a bisexual, transgender woman who lives in a state with a constitutional prohibition on gay marriage.
And gay marriage is just the tip of the iceberg. Most circuits have recognized in recent years that Title VII’s prohibition on employment discrimination based on sex stereotypes is also a prohibition on discriminating based on sexual orientation and gender identity. Likewise, recent circuit court decisions have concluded that Title IX’s prohibition on sex segregation in education mandates transgender students be treated with basic respect. It is only a matter of time before these issues reaches the Supreme Court, and there is no question how a court with Judge Kavanaugh on it would rule. Judge Kavanaugh would join opinions holding that LGBT people have no protections under federal law. This would set LGBT rights and LGBT visibility back decades. It would lead to the suicide of countless children. It cannot be understated how devastating such rulings would be.
And it gets worse. Just this year, the Supreme Court considered whether a baker’s free speech rights were violated when he was sanctioned for refusing to bake a wedding cake for a gay couple. The Court issued a narrow decision, but two Justices expressed the view that the enforcement of anti-discrimination laws was unconstitutional. They characterized the baker’s refusal to sell a cake to the couple as the refusal to celebrate gay marriage. Since the state may not require any citizen to support any viewpoint, this violated the baker’s first amendment rights. This interpretation, which admittedly was only endorsed by two Justices, has no limits. For example, the hiring of an out gay worker is, in a sense, the celebration of gay identity. There are at least two Justices on the Supreme Court who would hold that all state laws prohibiting LGBT discrimination are unconstitutional. Whether five justices would endorse this view is unclear, but another compelled speech case from this year suggests they would. The Court this year struck down a California requirement that all centers claiming to be pregnancy health centers post a sign saying whether they were licensed and post a 1-800 number with info about pregnancy health. The conservatives on the Supreme Court are apparently willing to issue opinions that interpret the compelled speech doctrine extremely broadly when states pass laws the Justices don’t like. Nothing in Judge Kavanaugh’s history suggests he would not go along with this. The result would be that any anti-discrimination protection would be unconstitutional. It is impossible to put into words how devastating for the LGBT community this would be. Millions of people would return to the closet. Thousands would commit suicide.
(b) Reproductive rights
Before the sexual assault allegations surfaced, the main focus on Judge Kavanaugh’s nomination was, of course, reproductive rights. Would a Supreme Court with Judge Kavanaugh on it overturn Roe v. Wade? My best guess, which is of course just a wild guess, is that it would not explicitly overturn Roe. But Planned Parenthood of Southeastern Pennsylvania v. Casey, interpreting Roe, makes the question about any restriction on access to abortion whether such a restriction creates an “undue burden” on the person seeking the abortion. There is no question from the opinions of the four conservative Justices and from Judge Kavanaugh’s opinions that these judges believe basically nothing is an undue burden. There is no question in my mind that case after case would declare abortion restrictions okay until Roe had died a death by a thousand cuts and people in the majority of states had no access to abortion. The dissent in Whole Women’s Health v. Hellerstedt (where four Justices would have upheld that a Texas law that placed restrictions on abortion clinics even though those restrictions had no medical justification and those restrictions would have resulted in the closure of all abortion clinics in western Texas) and Judge Kavanaugh’s dissent in Garza v. Hargan (where he would have upheld the decision of a DHS official to prohibit a woman in custody from having an abortion based solely on that official’s personal opposition to abortion) make clear that a Supreme Court with Judge Kavanaugh on it would allow virtually any restriction on abortion, regardless if there was any medical merit to the restriction. Again, the negative effect of such rulings cannot be understated.
(c) Affirmative action
There has been somewhat less focus on the threat to affirmative action that would come from a Court with Judge Kavanaugh on it, but this threat is also very real. In the 2016 case Fisher v. University of Texas, Justice Kennedy wrote the majority opinion for a court divided 4-3. His majority opinion accepted the University of Texas’s affirmative action program as constitutional. This decision gave colleges and universities across the country a model affirmative action program to follow. The addition of Justice Gorsuch and Judge Kavanaugh to the court would give the conservative justices on the court the ability to overturn this ruling and declare affirmative action unconstitutional. There is no question in my mind that a court with Judge Kavanaugh on it would ban affirmative action.
This is a trickier issue than the first two that I mention because the court has not selected a good rationale for affirmative action, and its jurisprudence on the issue suffers greatly as a result. In Regents of the University of California v. Bakke, the court rejected a reparations theory of affirmative action, but Justice Powell concluded that affirmative action was okay under a diversity theory. The Court would later adopt Justice Powell’s theory. There are many problems with the diversity rationale, both theoretical and practical. First, Justice Powell essentially said that it was not acceptable to have lower admissions standards for disadvantaged people to make up for the fact that they were disadvantaged. But schools seek to provide a holistic educational experience, and a diverse school can better do that. Thus, for this reason, the school can consider racial and other backgrounds. Put crudely, it is unconstitutional to try to make up for the racism people of color face, but people of color can be used as props for white people’s education. Second, this diversity theory only works to help an underprivileged community as long as that community is producing fewer people than would lead to ideal diversity. For example, Asian Americans have better average grades and test scores than other races; the diversity model harms them, punishing them for doing so well as to exceed their needed numbers after the students have already been held back from living in a racist society. In short, change is desperately needed to the Supreme Court’s affirmative action jurisprudence, but a Court with Judge Kavanaugh on it would use the need for change as an excuse to scrap affirmative action altogether, which would have a devastating effect on millions of children and many communities.
(d) Procedural concerns
My other main concern was a procedural one. When Judge Garland was nominated to the Supreme Court, the Senate waited nearly a year without holding any hearings or any formal proceedings of any kind. The Senate just ignored the nomination. This is fundamentally unfair. While I hate obstructionism, I think there is a lot of merit to the idea that this has to be a tit for tat situation and that solely on the basis of procedural fairness, Judge Kavanaugh’s nomination should be ignored.
My feelings about Judge Kavanaugh’s nomination were mixed. While I had very serious worries, he also seemed like a run-of-the-mill conservative judge. The main concerns that I have expressed–LGBT rights, reproductive rights, and affirmative action—could be said of anyone the President would have nominated. And at least Judge Kavanaugh appeared to be a good judge. I therefore initially opposed his nomination, but I was not outraged by Judge Kavanaugh himself.
2. My first major concerns after the first hearing
When I watched excerpts of the hearing on Judge Kavanaugh’s nomination, I was frankly shocked. I have watched snippets of every Supreme Court nomination hearing since Chief Justice Roberts’s, I have watched a few hearings on federal lower court judges, and I have attended a few public interviews for applicants to Alaska judicial positions. I had never seen a successful judge candidate answer questions in the way that Judge Kavanaugh did. Candidates for judgeships have a pretty uniform way of responding to questions. They listen to the question, stop and formulate an answer, and then answer the question. Judge Kavanaugh did not do this. He just started talking. The string of jumbled half sentences that he produced in response to the questions he was asked–while probably what I would have done if I were in his shoes–was a marked contrast to every successful judge candidate I have seen. It was pretty shocking. It made me wonder if he actually did have the temperament and the intellect for the Supreme Court.
Also around that time, emails were released that suggested he had perjured himself in his 2006 confirmation hearings. Judge Kavanaugh had said that he played no major role in shepherding two judicial nominations when he was a member of the Bush administration. This apparently was a lie. Lying to a Senate committee is a crime and as a judge it is unethical and should be unquestionably disqualifying. I really believe that as a result of this, and this alone, Judge Kavanaugh is unquestionably unqualified not only to be a Supreme Court Justice but also to remain a federal judge at all. We cannot normalize anyone lying under oath to Congress, let alone federal judges.
3. The sexual assault allegations
I will try to keep this brief, but I believe the allegations against Judge Kavanaugh. First, some of them have been independently vetted by journalists. Anyone can post something on Facebook, and anyone can write an angry letter to a senator. But not anyone can convince reputable journalists to publish something. The original allegations were thoroughly vetted and verified. Second, they fit with research on the nature of sexual assault and with real-life experience about sexual assault. This has been discussed in public ad nauseam (really with its literal meaning; it is hard to find a sexual assault survivor, and I am one, who has not been incredibly, viscerally shaken by recent events), so I really don’t want to get into it other than to say it all checks out.
But maybe the bigger story here was again Judge Kavanaugh’s response. I do believe that horrible things done decades ago should not be held against a person for the rest of their life. But there has to be some evidence of recognition and character growth. And there just isn’t here. Judge Kavanaugh has denied everything, big and small. He is telling obvious lies now. Why he won’t admit to drinking too much when he was young (who didn’t?) and being sexually immature when he was young (who wasn’t?) is beyond me. He is lying about stuff that should be uncontroversial, and it is obvious to everyone that he is lying. Again, this is behavior that is not fitting of a federal judge, let alone a Supreme Court justice.
We could be having a really interesting, and needed, national conversation right now about how to atone for terrible things you did when you were younger. But we are not. He has chosen to deny everything, no matter how big or small and no matter how obvious it is to everyone that he is lying. Again, this is not judicial behavior.
4. The second hearing
This brings me to my last point. Try as I might, I just cannot get over how inappropriate Judge Kavanaugh’s behavior at the hearing on Thursday was. I was shocked, and I continue to be shocked. I wish I were shocked by sexual assault allegations, but I sadly have a pretty defeatist attitude about each individual instance of sexual assault. I am trying to work on this, but I still haven’t gotten myself to a place where I see sexual assault as anything but inevitable. It’s just so common, it doesn’t shock me like I wish it did. But I am around judges regularly; I was a law clerk for a multi-member court, I have served on a court committee where roughly half the members were judges, and I am in the first few weeks of practicing law for the first time. I am a baby lawyer, but I have had a pretty significant exposure to judges. Put simply, judges do not act like Judge Kavanaugh acted. If any Alaska judge gave the performance that Judge Kavanaugh just gave, that judge would be disciplined. And if it weren’t for the politics of the situation, I think Judge Kavanaugh would be disciplined for his performance on Thursday. I will try to break down everything that was just so out of the realm of normal about Thursday’s hearing.
First, the entire premise of Judge Kavanaugh’s remarks, that he has the right to be publicly angry about the accusations against him, is incorrect. Canon 2A of the Code of Conduct for United States Judges explains, “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 commentary to the canon states:
An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.
Part of being a judge is that people will hate you. People will smear you with the worst smears. People will actively seek to destroy you. And you cannot retaliate. That is what you sign up for when you become a judge. Even if all the allegations against him are false and were cooked up by liberal groups to destroy him, he is not allowed to respond with anger or with retribution. When you become a judge you give up many of your rights to speech and privacy. Everything you say and do becomes a reflection on the judiciary as a whole, and the appearance of impartiality of the judiciary has to trump any personal feelings you might have. Judge Kavanaugh in Thursday’s hearing did not live up to that standard to a degree that I believe was unquestionably unethical. He was allowed to defend himself, but only in a way that did not attack private people or even public interest groups, because the judiciary cannot take a public stance against private people or public interest groups. His anger was completely inappropriate and was one unethical way that he acted during the hearing.
Another unethical way that he acted during the hearing, was the invocation of politics. He stated that left-wing organizations were attacking him as revenge for the outcome of the election and that they would regret doing so. This statement is problematic for at least two reasons. First, he has now stated a position about certain groups that undoubtedly litigated before him in the past and will undoubtedly litigate before him in the future. Second, and relatedly, he has stated a plainly political position.
A large percentage of the cases in the DC Circuit, where Judge Kavanaugh presently sits, are appeals under the Administrative Procedure Act from decisions of administrative agencies. These appeals are generally brought by interest groups such as trade organizations, environmental organizations, etc. Some of these groups have, of course, actively opposed him and presumably are among the left-wing groups he mentioned in his remarks. The DC Circuit also hears many constitutional appeals. The lawyers in many of these cases are provided by left-wing opposition groups, to use his terminology, such as the ACLU. This presents a major conflict of interest if he is going to go forward as a judge.
Canon 3C(1)(a) states, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has a personal bias or prejudice concerning a party . . . .” Ethically, Judge Kavanaugh, whether on the Supreme Court or on the DC Circuit, would seem to have to disqualify himself from any cases where liberal organizations are involved, which is a large number of cases. This is why judges don’t make public comments like this, and it is why Justice Ginsberg was rightly criticized for making a public comment about President Trump. Such comments create serious ethical problems. For this reasons, Canon 4 states that “a judge should not participate in extrajudicial activities that . . . lead to frequent disqualification.” Judge Kavanaugh’s comments on Thursday clearly violate this canon.
The political nature of Judge Kavanaugh’s comments–he invoked the democrats and the Clintons and vowed revenge on left-wing organizations–also violates rules on judges being apolitical. Canon 5 is literally titled “A Judge Should Refrain from Political Activity,” and Canon 5C states, “A judge should not engage in any . . . political activity.” Judge Kavanaugh’s statements violated this requirement.
Finally, although not technically unethical, Judge Kavanaugh’s demeanor was highly nonjudicial. Canon 3A(3) states that “[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.” This is a canon about a judge’s administration of his courtroom and, therefore, does not directly apply here. But it is still relevant how far from “patient, dignified, respectful, and courteous” Judge Kavanaugh was on Thursday. His behavior simply as a citizen was outrageous–people called to testify before the Senate ordinarily should not angrily deflect questions; they should directly answer them–and the fact that he was a representative of the judiciary made it unthinkable.
Some judges do regularly get angry, but it is a controlled anger designed to control the proceedings before them. It is not retaliation for a personal slight. As the commentary to the canon states, “The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike while being patient and deliberate.” Again, Judge Kavanaugh did not technically violate this canon, but he certainly behaved in a way that is far outside the normal realm of behavior, or what should be the acceptable realm of behavior, for a federal judge.
In my mind, even if all the allegations against Judge Kavanaugh are false, his behavior on Thursday was still unambiguously disqualifying not only from being a Supreme Court Justice but also from being a federal judge at all. I really do believe that if it were not for the political nature of these hearings, Judge Kavanaugh would be publicly reprimanded for his behavior, and I am sure that in private he was told by other judges how poor his behavior was.
It is strange that Judge Kavanaugh’s temperament bothers me more than his judicial rulings. A Justice who would recognize and advance basic human rights is way more important than a judge who acts judicial. I think it boils down to a few things.
First, I know that no Republican-nominated Justice will meaningfully recognize basic rights. I’ve been kind of forced to get over that. But if they are going to deny our basic human rights, they should have to at least play by the rules while doing it. It’s the ultimate disrespect to change the rules of the game when you were going to win the game anyway.
Second, this was written partly with Senator Murkowski in mind as the audience. She says she cares about norms of respect and decency. We should hold her to that.
And third, I do believe that an impartial and dignified judiciary is crucial to society. The less we can erode these standards, the easier it will be to climb out of the hole we are digging.