Clark's Scribbles

Brett Kavanaugh Supreme Court Nominee

Brett Kavanaugh, Supreme Court Nominee, is destined to become a tragic figure in American Politics.The battle over his nomination reminds me of the battle over Judge Robert Bork’s nomination in many ways. It is different in significant ways. Kavanaugh, like Bork, is a striking man with strong conservative views.

I remember Bork as being a loud, portly man with a rough beard. Kavanaugh seems younger, more athletic and clean shaven. He might even be dashing.

Bork was the Assistant Attorney General who fired Nixon Special Prosecutor Archibald Cox. He favored extreme expansion of Presidential Powers. Kavanaugh seems to have been the Machiavellian thinker for Special Council Ken Starr during the investigation of Bill Clinton.

Judge Bork favored expansion of presidential powers and believed the voting rights act was unconstitutional. (https://www.quora.com/Why-wasnt-Robert-Bork-confirmed-as-a-Supreme-Court-justice) Judge Kavanaugh has expressed some opinions that suggest he would expand the power of the presidency and overturn accepted norms. For example, in a 1999 discussion, he said, ““But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.”

On the other hand, Kavanaugh cited Nixon as one “of the greatest moments in American judicial history” in a 2016 law review article. When asked by the Senate Judicial Committee about his ten most significant cases, he said that in nine of them, the position expressed in his written opinion was later adopted by the Supreme Court.

Judge Kavanaugh carries an unusual stigma. Extreme views he has expressed on legal actions against a sitting president could have been an important consideration in his selection for the Supreme Court nomination. Candidate Trump promised to overturn Roe V Wade and may have selected Brett Kavanaugh for the Supreme Court as a step toward fulfilling that promise. Kavanaugh has not challenged the Supreme Court ruling on abortion. He assured Senator Lisa Murkowski, a key GOP female in the Senate, that he considers Roe V Wade settled law. However, his actions in a recent case before him as a Circuit Court Judge suggest that he might find a way to weaken and even nullify the rights established by the ruling.

The case involved a 17-year-old illegal immigrant being held in a federal detention camp in Texas. She wanted an abortion. Texas law required her to get her parents permission or a judicial waiver. The young woman got a sponsor and a lawyer and won the judicial waiver. Federal authorities refused to allow her to leave the detention center to get the abortion. Her appeal was sent to the D.C. Circuit court. Judge Kavanaugh presided over the hearing. He did not dispute her right to get the abortion, but he imposed conditions that would have prevented her from getting her abortion before it was too late. When the majority overruled him. He wrote a dissent. That dissent has conservatives upset because he did not dispute her right to an abortion. It has liberals don’t like it because he wrote: “that delaying the procedure while the government sought a sponsor was permissible under the Supreme Court’s precedent because it did not impose an undue burden on that right.”

It is possible. It is likely that Kavanaugh was being truthful when he told Senator Murkowski that he considers Roe V Wade settled law. That would not prevent him from voting to decide in favor of officials who imposed draconian restrictions on access to abortions when such cases come before the court. Judge Kavanaugh could also change his opinion after he has secured his position on the Supreme Court. He could join other conservative justices in a decision to overturn Roe V Wade because it was wrongly decided.

The question for Senator Murkowski and others who have a vested interest in protecting Roe V Wade is: What will you do when Supreme Court Justice Brett Kavanaugh attacks or even votes to overturn that decision?

Can Judge Kavanaugh be trusted? Is there anything so sacred to the man that he would never betray it?

These questions lead to the allegations of sexual misconduct brought by at least three women. The allegations are political hot potatoes. Kavanaugh supporters insist that they are part of a campaign to prevent confirmation. Supporters of the women maintain that they are uncovering past wrongdoing that has to be addressed. In particular, Christina Blasey Ford made her allegations before President Trump announced that Brett Kavanaugh was his choice for Supreme Court nominee.

Public outcries appear to have forced a hearing on Dr. Ford’s complaint. But she was the only witness for her side, and Judge Kavanaugh was the only witness for his side. The plan was to vote on his confirmation the day after the hearing. Instead, the day after the hearing negotiations led to a limited one-week FBI investigation into the allegations. It appears that the investigation is limited in ways that guarantee serious issues in Judge Kavanaugh’s past are not addressed.

A sworn statement submitted to the Senate Judiciary Committee in connection with the hearing on Dr. Ford’s allegations is specifically excluded from the investigation.

His drinking habits are not to be investigated. He admitted during the hearing that he drank beer and occasionally got quite drunk. But he insists that he never lost consciousness let alone blacked out. Several of his classmates from Yale have challenged his assertions. Two problems must be investigated. First is whether or not he lied about his behavior in high school and college. The second is whether or not his problem drinking stopped when he got out of the college environment. Either of those situations should disqualify him for appointment to the Supreme Court.

Judge Kavanaugh himself has provided the most serious evidence that he is not qualified to serve as a Justice on the Supreme Court. He clearly views the world through a political lens. He is not content to respond to charges that he considers baseless, he has to lash out at his perceived political foes. “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about president Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

That statement alone should disqualify him from consideration for an appointment to the Supreme Court. Instead of limiting himself to addressing the alleged assault, he strikes back with a countercharge based on an unsupported conspiracy theory, and he brings in President Trump’s win in the 2016 election. The only evidence of a conspiracy on the part of the Democrats is the delay in making Dr. Ford’s letter public. It is difficult to see that things would be any different if the letter had been introduced into the process in August or even in July. The issues are whether Brett Kavanaugh sexually assaulted Christina Blasey 36 years ago and whether that matters in the present context. A judge must be able to stick to the issues.

According to the Code of Conduct for United States Judges (http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges), a judge should uphold the integrity and independence of the judiciary. He or she should avoid the appearance of impropriety in all activities. She or he should perform the duties of the office fairly, impartially, and diligently.

This hearing was not one of Judge Kavanaugh’s official duties, but his statements cast doubt on his ability to perform his duties fairly and impartially.

Fifty years ago, Supreme Court Justice Abe Fortas was impeached and forced to resign because of ethics violations. He had been appointed by Lyndon Johnson. Fortas represented Johnson in a 1948 electoral dispute, and the two became friends. After Fortas was elevated to the Supreme Court, he continued to maintain a close relationship with the president which violated his duty to maintain independence and integrity. Fortas provided Johnson with inside information on judicial deliberations and helped write speeches for the president.

Judge Brett Kavanaugh was handpicked by President Donald Trump. The Judge appears to have the qualifications, but some of his writings suggest that the President had other motives for selecting him. Many believe that he perjured himself both during his 2003 – 2006 hearings for appointment to the DC Circuit Court and during the 2018 hearings on his nomination to the Supreme Court. The handling of current sexual allegations has been inadequate. No convincing evidence of misconduct has come to light (as of this writing), but the picture that has emerged leaves the issue unresolved. There is good reason to believe that, if he is confirmed, Justice Kavanaugh will face these issues again in the not too distant future.