Given all that has been said, often with uncommon courage and insight, out loud and in print, about Brett Kavanaugh’s Supreme Court nomination, what more can an observer say? Probably nothing, but this is a moment too terrible for silence, so I must spill a few words of my own.
I’m a practicing lawyer. Lawyers call the top court in any system of appeals the “court of last resort.” This turn of phrase evokes the magnitude of the power wielded by this governmental body. When such a court decides a matter, the controversy is over. There is nowhere else – within the courts at least – to go. No way to alter whatever principle or issue was raised and decided in that case. Some other time, I’ll write about how democracy can and should offer ways to temper that power, but even when democracy is functioning well, some matters with far-reaching consequences will be finally resolved in court, with an impact not just on those who brought that case forward, but on many other people facing similar controversies or questions.
Brett Kavanaugh has been named by the President to have a job as a judge on the court of last resort for the government of the wealthiest and most powerful nation on earth. That court decides questions touching on privacy, reproductive and economic rights and liberties, torture and incarceration, governmental power, and equal and fair treatment in countless aspects of life, commerce, health care, and even the protection of the earth itself from the ravages that accompany the enormous successes of human enterprise. Because our nation is so large a part of the world’s political order and economy, the decisions of this court truly can affect the fate of all humanity.
The only check on a President’s power to appoint someone to this high court is that the Senate must consent. If they vote to do so, Judge Kavanaugh will be one of nine people exercising the “last resort” power of this stunningly powerful Court for the rest of his life. In the U.S., we elect our chief executive and allow one person to serve for at most 8 years. Members of Congress serve only 2 or 6 years between elections. Thus, federal judges are the closest thing we have to monarchy in our system of government. We elect our executive and legislative officials; only judges hold federal power for life upon gaining office.
Every appointment to wield one of the 9 votes on this enormously powerful governmental body is a profound decision. Each such appointment obviously calls for the utmost care.
Well before the nation heard the courageous, deeply emotional, yet measured and thoughtful words of Dr. Blasey Ford, a woman whom the Judge’s supporters concede is credible, there were reasons enough for the Senate to withhold its consent and decline to allow Judge Kavanaugh to serve on the country’s court of last resort. He has a disturbing view that a sitting President should be protected from the impact of any investigation, regardless of the subject matter. This could deprive the court of a key role, such as it played in the Watergate scandal. He has a history of hostility toward effective environmental regulation, especially regulation focused on the threat of human-induced climate change. He has a record of hostility to federal efforts to expand health care. He has written dismissively about the right of a woman to make personal reproductive choices without government interference and has underscored his willingness to disrupt or curtail such rights in a decision denying an abortion to an immigrant in government custody.
Beyond all those concerns – which were enough to give us pause about a lifetime appointment – there is his personal treatment of women. One could not listen to her deeply personal yet starkly precise account and fail to believe her. The protestations from Kavanaugh’s supporters that “due process” has not been accorded the nominee are misplaced. Even if Judge Kavanaugh denies or cannot cannot remember it, Dr. Blasey Ford clearly knows he inexcusably and utterly disregarded her humanity, equality, and dignity in his youth. There is no violation of American judicial norms in recognizing this truth, revealed by the vast weight of what we know of this story. Moreover, the emerging stories of other personal assaults and harassment, and of an attitude generally dismissive of his female peers, only corroborate how we may fear he could rule on cases of great moment for the equality of all persons before the law.
A lawyer friend who wanted to defend the Kavanaugh appointment recently exclaimed, “You’re a lawyer! You can’t say you believe [the women who have come forward] before you have all the facts!” Yet all of us – lawyers and judges included — reach countless conclusions without “all” the facts. There are various standards of proof, even in court. The most common of these is the “preponderance of the evidence” – which way the balance of the available information tips. This is not much different from the standard applied in most administrative agency decisions, which is phrased in Maine’s laws as “the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.” Only in criminal cases – when the power of the government will be used to take away liberty or impose other punishment upon a person – is the standard “beyond a reasonable doubt” applied. That special standard has no place here, when nobody is considering whether to put Judge Kavanaugh in jail, or even to take away his current (lifetime) job. We are deciding, however, whether he should have one of 9 votes on the most powerful “court of last resort” in the world.
Women, most notably Dr. Blasey Ford, have, without any hope or expectation of any personal benefit, courageously come forward with credible evidence that this nominee is a person capable of utterly disregarding the essential humanity of a person of his own age and within his own social circle. Yes, this happened at an age when young men and women alike are regarded as still in a formative stage, and perhaps an age especially vulnerable to poor judgment and poor impulse control. Even so – who among us would not be horrified at this assault, regardless of the perpetrator’s age or intoxication? What parent, had the conduct been known at the time, would not have been stunned at what it suggested was missing from the young man’s heart and his moral compass?
Imagine that we had heard on Friday, in his response to Dr. Blasey Ford, genuine empathy with her pain, humiliation, and devastating injury. Imagine that had been followed with an admission that the subculture in which he had willingly participated had fostered such injuries, whether or not he had any recollection of his personal role in that particular one. Imagine that he could have allowed for the possibility of his personal culpability given her credible testimony and specific identification of him, combined with his history of excess drinking. If we had heard all those things, then perhaps one could argue that a sexual assault alleged to have occurred in his teens might not by itself be disqualifying.
But we do not have the opportunity to weigh that argument against the reasonable counterpoint that anyone who could ever have so violated another person cannot be trusted on this court of last resort, because the testimony Judge Kavanaugh actually gave only confirmed the worst inferences one might make about a perpetrator of sexual assault. He left no room for the conclusion that personal growth and wisdom might outweigh his earlier misdeeds. His response was combative, entitled, and angry. He was focused not on the victim’s pain but upon the threat to his own well-being and power. True to his career before becoming a judge, he cast the entire question in terms of political combat and promised future injury to his political rivals. He even forgot, despite his seat on a court with powers nearly as consequential as the Supreme Court, how a witness is to respond to a question. He turned on his questioner like a petulant child when asked if he had ever been blackout drunk – asking her whether she had ever been that drunk herself. (Had this occurred in a courtroom, the presiding judge would have immediately admonished the witness against such behavior.)
In short, Judge Kavanaugh’s own testimony – indeed not just his words but his demeanor and behavior – left behind any question of what standard of proof to apply. All doubts have been resolved in the opposite direction. No reasonable person can conclude that this man, with this history and this attitude toward his own past, should serve for the rest of his life on the most powerful court on earth.