Confirming Kavanaugh

Confirming Kavanaugh Sends the Wrong Message

The confirmation hearings for Judge Brett Kavanaugh quickly morphed from a dispassionate examination of his credentials and judicial record into another sordid chapter in the divisive partisan politics that have consumed our body politic ever since Newt Gingrich decided to adopt a scorched earth approach to achieve a one-sided political landscape. The partisan divide aside, the hearings also brought sexual assault and violence towards women face to face with angry white male privilege and entitlement. We are none the better for either.

Whether you believe Dr. Ford’s allegations or Kavanaugh’s denials, the televised hearings made one thing very clear. Judge Kavanaugh did not display anything that comes close to approaching the temperament we expect from judges. Having practiced law in State and Federal trial courts, State and Federal Courts of Appeal and the Wisconsin Supreme Court, I have run across all manner of judicial behavior. There have been partisans and umpires, those with open biases and closed minds, prosecutors who never left their world view, scholars and political hacks at all levels of the judiciary. Fortunately, many of those ill-suited for the bench don’t last long in the robes. They either chaffed at the constraints or failed to earn the trust of their colleagues. 

The standards for judicial conduct are set out in the ABA Standards of Judicial Conduct and State level equivalents based upon them. Federal Judges, including Judge Kavanaugh who sits on the United States Court of Appeals for the District of Columbia, are bound by the Code of Conduct for U.S. Judges. That Code has five Canons which state the broad rules. They are:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity

Each Canon has detailed explanations of their meanings and the broad sweep of their coverage. 

Judge Kavanaugh’s angry outburst during his opening statement before the Senate Judiciary Committee after Dr. Ford’s testimony and many of his responses to questions put to him by the Senators clearly demonstrated a lack of judicial temperament and violated Canons 2, 3 and 5. Any one of these violations should disqualify him from confirmation to the United States Supreme Court. The most egregious came when he accused Democrats, including the Clintons, of engaging in a calculated conspiracy involving Dr. Ford and his other accusers to deny him his seat on the Court. Kavanaugh’s lack of judicial demeanor caused over 1,700 law professors and the largest group of protestant Christian churches to call for his nomination to be withdrawn or rejected. I cannot imagine ever appearing in his court and expecting a fair hearing while representing a cause even loosely tied to an issue espoused by Democrats or involving sexual violence against women. His mind will be made up before the case is even called.

Kavanaugh’s disqualifying demeanor should have caused those responsible for his nomination to withdraw it or for the GOP Senators to reject it. Neither course was taken. 

President Trump, after weeks of restraint, finally caved back into his baser instincts. He recently tweeted and spoke demeaning Dr. Ford and her unholy alliance with Democrats. He heaped praise on Kavanaugh and bemoaned the damage done to his reputation and family. Most telling was Trump’s rallying cry that young men must now fear being guilty of similar false accusations, especially for youthful indiscretions. Trump and Kavanaugh both expressed their clear entitlement to do what they will as part of their privileged stations in life. No mention was made by either of a need to listen to and address violence and sexual assault against women by men, even young men. 

We are left with a restricted FBI investigation into some of the allegations raised by Dr. Ford and Deborah Ramirez. So far, this appears to be but a sham to cover loose ends, not the thorough examination of the facts and any corroborating evidence Senators Flake and Coons wrested from Senate leadership before they would vote Kavanaugh’s nomination out of committee. Few now anticipate anything new being added to the confirmation process, especially since Senate Majority Leader Mitch McConnell has indicated the FBI report would not be released to the public before the full Senate votes. 

The saddest part of all these machinations is the message being sent to young girls. They still will not hear, “we believe you” if they are assaulted. They will continue to be told that rape is not the fault of the rapist, but their own because they did not keep themselves safe. Kavanaugh’s confirmation will embolden another generation of privileged white men and silence another generation of those abused and violated by them.