Late last night, with the Senate just hours away from the first key vote on his nomination to the Supreme Court, Judge Brett Kavanaugh took to the Op-Ed page of The Wall Street Journal to address his nomination and, at least to some extent, back away from the hyperpartisanship of his appearance before the Senate Judiciary Committee last week:
WASHINGTON — Judge Brett M. Kavanaugh, the embattled Supreme Court nominee, defended his impartiality and independence on Thursday in an unusually public attempt to assuage concerns about his judicial temperament after his emotional and often viscerally angry testimony last week rebutting allegations of sexual misconduct.
“You can count on me to be the same kind of judge and person I have been for my entire 28-year legal career,” Judge Kavanaugh wrote in an opinion piece published in The Wall Street Journal. He acknowledged that he had regrets about some of the things he said in his testimony last week before the Senate Judiciary Committee, but did not specify what they were.
“I was very emotional last Thursday, more so than I have ever been,” he wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad.”
The op-ed appeared to be directed at a handful of lawmakers who remained publicly undecided before a vote Friday morning that would end debate over his nomination and set the stage for a final decision on his confirmation.
Republicans had appeared increasingly confident on Thursday that Judge Kavanaugh would be confirmed, though a no vote from three of the four publicly undecided senators — Jeff Flake of Arizona, Susan Collins of Maine, Lisa Murkowski of Alaska and Joe Manchin III of West Virginia — could derail the proceedings.
Before answering questions from lawmakers about the allegations last week, Judge Kavanaugh had denounced the accusations in a prepared statement as “a calculated and orchestrated political hit” intended in part to exact “revenge on behalf of the Clintons.” He also accused Democratic senators of “lying in wait” with the initial allegation, revealing it only when other attempts to block his confirmation failed.
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Judge Kavanaugh wrote in the opinion piece that his words during the hearing “reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character.” He vowed to remain impartial and emphasized his belief “that an independent and impartial judiciary is essential to our constitutional republic.”
The piece was the second time the judge had taken the rare step of publicly speaking out during the nomination process in the weeks since Christine Blasey Ford, a research psychologist, came forward with allegations that he had assaulted her at a high school party more than three decades ago. He first delivered a stoic rebuttal during a prime-time Fox News interview before his second hearing, an appearance that starkly contrasted with the teary, red-faced defiance he voiced before lawmakers last week.
As noted, the Op-Ed itself, along with Judge Kavanaugh’s appearance on Fox News Channel, is apparently unprecedented in the history of judicial confirmations in general and Supreme Court nominations specifically. Never before have we seen a contender for the Supreme Court take such an aggressive and public advocacy role on behalf of his confirmation, not even during the highly controversial Clarence Thomas nomination process. More importantly, never before have we seen a nominee who spoke in the kind of hyperpartisan manner that Kavanaugh did during his appearance before the Judiciary Committee last Thursday. It was an appearance that has led to admonishments from more than 2,400 law professors, the President of the American Bar Association, the Editorial Boards of USA Today, The Washington Post, and The New York Times. It has also led former Supreme Court Justice John Paul Stevens, who had previously spoken positively about Kavanaugh, to come out against his nomination. As I stated earlier this week, it also forms a substantial part of the reason why I cannot support his nomination. It is no doubt in response to all of this, and the perception that the fate of his nomination still hangs in the balance that Judge Kavanaugh was advised, most likely by the White House, to take this unusual step.
In any case, in the Op-Ed, Judge Kavanaugh tries to address the objections that have been raised since last Thursday, but ultimately his display of hyperpartisanship says more about what kind of Justice he’s likely to be than any Op-Ed can:
[A] good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy. As Justice Kennedy has stated, judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution compel the result. Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I do not decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.
As Justice Kennedy showed us, a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic. The Supreme Court is the last line of defense for the separation of powers, and for the rights and liberties guaranteed by the Constitution.
The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.
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I testified before the Judiciary Committee last Thursday to defend my family, my good name and my lifetime of public service. My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me. At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.
I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.
Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years. And I will continue to contribute to our country as a coach, volunteer, and teacher. Every day I will try to be the best husband, dad, and friend I can be. I will remain optimistic, on the sunrise side of the mountain. I will continue to see the day that is coming, not the day that is gone.
I revere the Constitution. I believe that an independent and impartial judiciary is essential to our constitutional republic. If confirmed by the Senate to serve on the Supreme Court, I will keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.
As I said both last Friday in my post about the hearing the day before and in my post this week about my position on his nomination, if he is innocent of the charges that have been made against him then it is understandable that Judge Kavanaugh would be angry. It’s also understandable that he would display at least some of that anger in his appearance before the committee. Additionally, given the fact that this process has resulted in threats directed at the Judge and his family that, regardless of the truth of the allegations, are entirely uncalled for. Indeed, under those circumstances, I would have questioned any person, even a nominee for a judicial position, who remained unmoved and unemotional over what was happening to them. That kind of emotionless response under obviously emotional circumstances would have been, well, odd.
So heading into the hearing on Thursday, I was prepared for the idea that Kavanaugh would be angry or upset about what he has been going through just as I was prepared for the fact that Clarence Thomas displayed anger when he responded to Anita Hill’s allegations nearly thirty years ago. The difference between the two, though, is that Thomas did not stray into the kind of hyperpartisan nonsense that Kavanaugh displayed during his opening hearing, nor was he, as far as I can recall, openly disrespectful toward Senators asking questions in the manner that Kavanaugh was toward Senators such as Amy Klobachur and other Democrats who had critical questions for him. As I noted at the time, it was clear that he made a conscious choice to head down that road both to please the man who appointed him and to rally Republicans and conservatives across the nation around his nomination. While he succeeded in that task, and while he will now most likely be confirmed because of it, he simultaneously but a cloud over himself that, notwithstanding this Op-Ed, will follow him for some time to come.
If and when he is confirmed, I honestly hope that I end up being proven wrong about Kavanaugh and that he ends up being the sober-minded Judge he appeared to be during the first round of Judiciary Committee hearings, and which he talks about in this Op-Ed and in an address he gave several years ago about the proper role of Judges. Hope, however, is a thin reed on which to pin the future of the Constitution and American law given the fact that his appointment is likely to result in a decided shift of the balance of power on the Court that could have an impact on Americans for the next three decades and longer. In that respect, I’ve got to say that the Judge’s words in this Op-Ed, while appreciated, strike me as being too little, too late. In addition to my issues with his position on issues such as the 4th Amendment, the right to privacy, and the limits on Presidential power, his performance last Thursday has left me with far too many doubts to be able to support his nomination. As I said, I hope I’m wrong, but something tells me that I’m not.
