Kavanagh confirmation sows decades of judicial distrust

October 9, 2018

The legitimacy of the judicial system depends on trust. Courts and judges are, after all, not imbued with an inherent magic or divine authority. Instead, legal decisions are respected because, as a society, we choose to respect them — we trust the process, the people and the system that produced them, even if there is disagreement with a particular result. 

But what happens when disagreement with a decision turns into a complete dismissal of the judiciary’s independence and authority? 

This weekend, the United States took the first step toward answering that question when the Senate confirmed Brett Kavanaugh to the Supreme Court and laid bare the overtly political and partisan nature of the appointment process.

The truth is that partisan politics has defined the United States Supreme Court appointment process for years. From the Federalist Society’s judicial lists and lobbying efforts to the rejection of Robert Bork to the Republicans’ audacious decision not to allow a vote in 2016 on President Barack Obama’s judicial pick, Merrick Garland, politics has always coloured the law in the U.S.

But Kavanaugh is different. He is different because he was, by his alleged criminal conduct and by his own words, a uniquely ill-tempered and ill-suited candidate.

Kavanaugh was always going to be a controversial appointment. His name was on the Federalist Society’s list of pre-approved, right-wing judges. But that was all par for the course. The real debate began after allegations by Dr. Christine Blasey Ford that Kavanaugh had tried to rape her when they were teenagers. Blasey Ford’s Senate testimony was consistent, compelling and credible. 

This should have been enough to disqualify Kavanaugh. But the Republicans cried foul about a new “open season” on men and argued that Blasey Ford’s allegations had not been proven. Kananaugh, they said, should be presumed innocent.

Let me let you in on a little secret: The presumption of innocence is a legal construct. It operates in our courts of law to protect people charged with crimes from the power of the state to deprive them of their liberty. 

In short, the presumption of innocence is a procedural court protection to ensure fairness, not a moral imperative. This is why we do not automatically convict and sentence a self-admitted murderer whose crime is clearly captured on video. In court, even where guilt is plainly obvious, proper procedures must be followed and the prosecution must prove guilt beyond a reasonable doubt. 

The presumption of innocence does not mean someone is forever factually blameless until proven beyond any doubt otherwise. The presumption of innocence does not operate to immunize potential Supreme Court judges from scrutiny. 

The Kavanaugh confirmation hearings were not a criminal trial where a benefit of the doubt matters and where, as the saying goes, it’s better that 10 guilty men go free than to convict an innocent man.

I’ve never heard anyone suggest that it’s better to put 10 guilty men on the Supreme Court rather than to risk depriving one federal court judge of a promotion.

But even leaving aside Blasey Ford’s heart-wrenching testimony, the absurdity and tone of Kavanaugh’s denials should disqualify him.

Put simply, Kavanaugh does not possess a proper judicial temperament. I have cross-examined hundreds of witnesses and I have seen many of my clients subjected to gruelling and often unfair questioning by prosecutors. These witnesses have neither the education nor courtroom experience that Kavanaugh does, yet all of them were more composed, more respectful and more responsive than he was.

Throughout his angry and unhinged testimony, Kavanaugh avoided or did not answer direct questions. Senator Kamala Harris asked the simple and straightforward question, “Are you willing to ask the White House to conduct an investigation by the FBI?” 

Kavanaugh answered, “The FBI would gather witness statements, you have witness statements. . . . The witness testimonies before you, no witness who was there supports that I was there . . .”

In other words, he did not answer. Over and over and over again.

If this was a trial, the argumentative, belligerent and unresponsive testimony given by Kavanaugh would leave a prosecutor smiling all the way to a conviction.

But if credible allegations of rape, a lack of judicial temperament and possible perjury are not enough to discard Kavanaugh and choose one of the dozens of other conservative-friendly judges on the Federalist Society’s list, Kavanaugh’s own words should have been the final nail in his coffin. 

The Supreme Court must never be viewed as a partisan institution, said Brett Kavanaugh in an opinion piece he wrote for The Wall Street Journal after his very bad day in the Senate. Kavanaugh may have been trying to salvage his confirmation, but he was right.

Now look at what Kavanaugh yelled under oath only a few days earlier.

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. . . .

“You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.

“The behaviour of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking. . . .

“This whole two-week effort has been a calculated and orchestrated political hit, fuelled 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.”

After Kavanaugh was sworn in to the United States’ highest court, Donald Trump’s press secretary, Sarah Sanders, tweeted,“Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realDonaldTrump, cementing a tremendous legacy for the President and a better future for America”

How can anyone ever view Kavanaugh as anything but a political operative?

The rape allegations may not have been proven beyond a reasonable doubt, but surely the partisan nature of Kavanaugh’s appointment has been.

How can there be any legitimacy in a future Supreme Court decision on a political divisive issue where Kavanaugh is the deciding vote?

And what happens when half the country refuses to accept a ruling from the country’s highest court?

Unfortunately, Kavanaugh’s shocking and disappointing confirmation will afford a lifetime to answer these questions.

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