Wednesday, October 03, 2018


Things are a little crazy

On Sunday, one of my friends from Yale Law, Mike Proctor, reached out about writing a letter to the Senate Judiciary Committee withdrawing from a letter we had previously signed supporting Judge Kavanaugh. It seemed the prudent thing to do, given how things have changed since we signed the other letter, prior to the initial hearings. You can read our letter here.

Our plan was just send the letter to the committee and leave it at that. However, the committee must have leaked the letter (or maybe that isn't a "leak," but just a release) and when I looked at the Huffington Post yesterday evening the top story--above the revelation that the Trump family allegedly (according to the New York Times) committed tax fraud over generations-- was our letter, with the banner above. You can read the HuffPo story here.

I'm sorry, but that is just weird. I mean... it's a good letter, and I believe in what it says, but neither Mike nor I are very important in the grand scheme of things. Well, ok, actually Mike is-- he is a legendary defense attorney, who cut his chops as a federal defender and became a go-to lawyer in California. But still, this is kind of strange. And now I will get a fresh round of hate mail coming my way.

But, in the end, that's ok. What's out there is what I believe.

So I am curious. You attended Yale Law at the same time but were you not a third year when he was a first year law student? or did you take time off between W & M and Yale Law?

I took two years off, so we ended up in the same class...
Kavanaugh wasn't my pick for the Court. I would have preferred someone with formative life experience from somewhere more than 10 miles from Washington or New Haven (Ocean City doesn't count!), and I remain convinced that Georgetown Prep is not the only high school in America that can generate a qualified Republican SCOTUS nominee. Call me crazy. But in the end, Kavanaugh is unquestionably well credentialed, as indicated by your initial letter of support. And I think his 12 years of judicial service is more than enough to judge his judicial temperament. It may well be that he us still unfit on that basis, but I haven't heard a serious argument to that effect.

As for the hearing, I agree that Kavanaugh was at times overtly and, therefore, inappropriately partisan. But his apparent partisanship arose in the context of defending himself from extremely serious charges, which he maintains are false, and which regrettably came to light under a partisan cloud. I'll forgive a judicial nominee for having a stake in his own dignity, even if he sometimes steps over the imaginary line we have drawn. But I have never heard that Kavanaugh acted similarly from the bench, or in any way that would indicate bias against the parties before him. And that's enough for me.

I agree with you that the issue of judicial temperament is distinct from the truth or falsity of the various charges leveled against Kavanaugh. The FBI should be permitted conclude its investigation. And if there is strong corroborating evidence Kavanaugh should withdraw or be withdrawn, and if there is not the Senate should vote.
CTL, part of my take on this is from practicing in the Supreme Court. (I am actually working on a cert. petition today). It is the most formal, most collegial, most highfalutin' establishment I have ever been around. In other words, the bar for deportment is sky-high.

One thing I know is that whether or not Kavanaugh is confirmed, the justice who IS confirmed will not reflect my political or legal views. I accept that-- it comes with losing an election. But that performance last Thursday was off the rails.
You're pretty important, though maybe not on this topic. I'm interested to see how you work criminal justice reform or clemency into the next round of interviews though.
For me, Kavanaugh's temperament issues alone are reason enough not to confirm. His temperament last Thursday was indistinguishable from his hyper-partisanship. I realize that there's no Supreme Court justice--or very few people at all-- who are truly apolitical. But his outburst was scripted, by him; he had time to write it down. Yes, he was angry, but he spouted off as if it were the first time he'd heard the allegations, instead of more than a week later. And he'd already had the chance to be indignant on camera, with the President watching, when he decided to appear on Fox. I understand why he was angry, but he'd had time before the hearing to get it under control. And to me, his small deliberate falsehoods were part of this temperament; he seemed to be saying, I'm going to get confirmed in a day or two so it doesn't matter if I tell you Democrats that those words in my yearbook had nothing to do with sex and extreme drinking. According to the Wall Street Journal, a Judiciary Committee staffer said that Kavanaugh watched Dr. Ford's testimony, yet he told Kamala Harris under oath that he had not.

Kavanaugh's attacks on the Democrats suggested vengeance and ultimatums; his open contempt of all of them was astounding. It made me scared, truly scared, for anyone who comes before a court he is a member of: how can anyone who's not of the same political persuasion expect to be considered fairly by him? I felt hatred coming from him, hatred for anyone who doesn't vote the same way. How can he be a judge at all after making it obvious he disdains half the US voting population?

Sigh. If he does get confirmed, I'd give anything to be watching when he and RBG meet for the first time as colleagues.
Thank you, Mark. I appreciated your past insights into the life, work, and temperament of Brett Kavanaugh. I support your right to follow your heart and change your mind about him as your feelings change.

But, just to be clear, had not you already withdrawn your support for him before the last hearing? Or did I misunderstand?
No, I hadn't (and I was asked about that). I wanted an investigation at that point, but didn't withdraw until after the hearing, and after talking to a lot of people on both sides. I was really torn, and still am.
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