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.

Rush to Judgment

What’s the Rush?

Do it Right this Time

What’s the rush to hold a vote on Judge Brett Kavanaugh’s nomination to the United States Supreme Court?

The Senate Judiciary Committee scheduled a hearing on Dr. Christine Blasey Ford’s

 accusations of sexual assault against the nominee for this coming Monday. Dr. Ford’s requested a short delay and rules to ensure a fair hearing and her safety. Grassley already rejected her request for an FBI investigation into her allegations but has offered to have the hearing next Wednesday with questioning to be conducted by an independent lawyer. Dr. Ford is still considering this offer. Committee Chairman Sen. Charles Grassley seems hell bent on getting the distraction caused by Dr. Ford over with so his committee can vote to confirm Kavanaugh’s nomination and pass it on to the full Senate. 

This is no longer 1991 when Prof. Anita Hill leveled sexual misconduct accusations against another Supreme Court nominee, Clarence Thomas. Hill’s appearance before the same committee in that year played out on TV and showed the nation what little regard the male Senators had for issues of sexual violence against women. Some of the same Senators who dismissed Prof. Hill then still sit on the Judiciary Committee today and we will soon learn if they have made any progress on women’s issues in the decades that have passed. 

Dr. Ford’s life has already been turned upside down after she revealed her claims publicly in an interview with the Washington Post. She has received death threats, had her email hacked and had to leave her home for the safety of her family. She has every reason to request an independent investigation into her allegations so that there is more than a “she said, he said” record before the Committee hearing. While Kavanaugh’s original FBI background check has been completed, all President Trump has to do is ask that it be re-opened to include Dr. Ford’s claims. So far, Trump has failed to make that request.

Prof. Hill correctly pointed out in an opinion piece in the New York Times on Tuesday that the Senate lacks any kind of protocol for handling claims like those she and Dr. Ford have made. She suggests the outline for one that makes a lot of sense and would take much of the partisanship out of the process.

Prof. Hill suggests that Senators make both claims of sexual violence and the integrity of the judiciary priorities and craft rules that acknowledge the importance of both. Next, she proposes that a neutral body, well versed in sexual violence cases, be tasked with investigating the claims and issuing a report for the Committee to use when it develops questions for a fact-finding hearing. The Committee should also rely upon advice from experts in the field of sexual violence as the hearing unfolds to avoid many of the myths often raised to counter women’s claims, like the “failure to report, therefore she’s lying” claim Trump made Friday. Hill joins the voices calling for a delay in the fact-finding hearing so that a proper investigation of Ford’s claims can be conducted. Finally, Prof. Hill suggests calling Dr. Ford by her name and not referring to her as an accuser or other loaded terms. 

Unfortunately, Prof. Hill’s suggestions are likely to fall on the tone-deaf ears of highly partisan Senators who need Judge Kavanaugh confirmed before the Supreme Court’s new term begins on the first Monday in October, not to mention the mid-term elections that take place a little over a month later. The shaky GOP Congress does not want a slew of 4-4 votes from the Court when a clear 5-4 majority is close at hand. 

There are substantial downsides for the GOP rush to confirmation looming as well. Confirming Kavanaugh’s nomination without holding a meaningful investigation and a fair fact-finding hearing on Dr. Ford’s claims will further alienate suburban women who are already jumping from the GOP ship in droves over Trump’s treatment of women. If the male-dominated Senate pushes Dr. Ford aside, many of those up for re-election in the up-coming mid-terms will not fare well in the backlash.

The #MeToo movement and the passage of time since Prof. Hill was raked over the coals must have had some impact on those in the Senate with any compassion for women who have suffered from sexual violence. Hopefully, Senators Collins and Murkowski will join with Sen. Jeff Flake and slow the train by voting “no” if Kavanaugh’s nomination comes up for a speedy confirmation vote in the full Senate. The ten democratic Senators facing re-election in states that Trump won will have to stand strong as well. A dismissive treatment of Dr. Ford’s claims will make that an easier vote for them all. 

We have reached a pivotal moment in our history. We will soon see how those we elected to represent us choose to treat women’s claims of sexual violence by the prominent and important. They need to start taking women seriously.