Regrets, Brett Has A Few, But Then Again Too Few To Mention

Brett Kavanaugh is expressing some regrets over his performance last Thursday, but it's largely far too little, far too late.

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.

(…)

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 Postand 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.

(…)

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.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Facebones says:

    “Baby, I’m sorry I screamed and hit you, but it’s really your fault for making me so mad.”

    ReplyReply



    25



    1
  2. Joe says:

    Judge Kavanaugh’s rant last Thursday simply confirmed the widely held suspicions that he is – at core – an entitled brat. (This was somehow a corollary to the old saying that its better to be quiet and thought a fool than to open your mouth and prove it beyond doubt.) I am sure that in most circumstances Kavanaugh can keep his core behavior at sufficient bay to interact well with others and move things in the direction he wants them. But pressure reveals character and that hearing revealed his. I agree with Doug entirely here, including about the current probability of his appointment.

    ReplyReply



    18



    1
  3. Kathy says:

    The other day I broke open an egg and scrambled it. While it had been a whole, unscrambled egg for 99% of its existence, there was no way to make it either unscrambled or unbroken ever again.

    ReplyReply



    12



    0
  4. Daryl and his brother Darryl says:

    As Justice Kennedy has stated, judges do not make decisions to reach a preferred result.

    I just would like to remind everyone that Kennedy made a deal with Dennison (a Russian asset) to get the most divisive and unqualified candidate in modern history appointed to SCOTUS. Kennedy’s son arranged $1B in loans to Dennison when no one else would. The money came from Deutsche Bank…notorious Russian money launderer.
    Despite what Kennedy may have stated, he clearly made a decision to reach a preferred result; Putin now owns the White House, Congress, and the SCOTUS.

    ReplyReply



    12



    1
  5. James Pearce says:

    The Supreme Court must never be viewed as a partisan institution.

    If you say so, guy.

    ReplyReply



    2



    11
  6. KM says:

    “I’m sorry you saw me as the entitled, rageaholic asshat I am when I was being Trumplike and indignant that I didn’t get the lifetime appointment my me-ness and partisan asskissing deserves without question. Kindly ignore that and all my other obvious failings so that I can get on with ruining your lives as my ideology and Masters see fit. #SorryNotSorry, Peons – just vote for me and act all shocked when I turn out to be exactly what I showed you I was. It’s worth taking the hit to worker’s rights and middle class America in order to get rid of Roe, amirite?”

    ReplyReply



    14



    1
  7. Gustopher says:

    [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.

    And yet, we have the Heritage Foundation, providing a list of very partial judges that fit a mold preferred by a political party, to achieve a set of desired results.

    The umpire analogy has always bothered me — the constitution doesn’t set out a clear, unambiguous set of rights where there is always an obvious and correct answer. Often rights conflict with one another, and precedence must be given to one or another, and the judge’s temperament, biases and philosophy will determine which of the plausible outcomes they rule in favor of.

    To go to the umpire analogy, we know that to be considered a strike, a ball must be between the batter’s knees and shoulders. What would happen if a franchise were to field a team of trained squirrels, where the distance between the batter’s knees and shoulders was less than the diameter of the baseball? Would every pitch be a ball, since it is not contained entirely within the strike zone? Would the first inning ever end, or would it be an infinite number of squirrels forever walking around bases, and running up the score?

    Umpires don’t deal with cases like this, but that’s exactly what constitutional law ends up as — applying a set of rules to an unforeseen circumstance, and attempting to make sense of it.

    And the Heritage Foundation exists to select and recommend umpires with a clear and demonstrated bias.

    ReplyReply



    9



    1
  8. gVOR08 says:

    Typical GOP, wants to have it both ways. ‘I gave an angry, hyperpartisan rant, but I’m not an angry hyperpartisan ranter.’ Same as, ‘Everyone should speak English and Muslims are a terrorist threat. But I’m not a racist.’

    Atrios summarizes the situation nicely,

    There is a class of people who for reasons too obvious to bother explaining are greatly invested in the idea that what is really important is that The People continue to Respect Our Grand Institutions. It is more important that The People have faith in the gooditude of the Supreme Court than it is that the Supreme Court is actually Good, for example.

    ReplyReply



    10



    1
  9. al Ameda says:

    Here are some remarks by retired Justice John Paul Stevens (from CNBC).

    Stevens said he, too, has come to believe that Kavanaugh, a U.S. appellate judge, “demonstrated a potential bias involving enough potential litigants before the (high) court that he would not be able to perform his full responsibilities.”

    “I think there’s merit in that criticism, and that the senators should really pay attention to it for the good of the court. Its not healthy to get a new justice who can only do a par-time job,” Stevens said.

    Stevens went on to say that his change of heart on Kavanaugh’s fitness for the high court was “for reasons that have really no relationship to his intellectual ability or his record as a federal judge. He’s a fine federal judge.”

    Asked whether questions raised about Kavanaugh’s credibility during the hearings should be disqualifying, Stevens said, “Not necessarily.”

    Stevens also said political leaders and the court have failed to repair the nations confidence in the judicial branchs separation from the president and the legislature.

    I think its worse, I regret to say it, he said.

    We can do much better than this.

    Judge Kavanaugh should NOT be confirmed.

    ReplyReply



    6



    1
  10. Kathy says:

    The Cloture vote passed 51-49, with Manchin, Collins and Flake voting for it, and Murkowski against.

    They don’t have to vote the same way when the confirmation vote is held, but that would be the way to bet.

    Manchin might still vote “no,” but odds are higher that Collins and Flake will vote “yes.” So that would make it 50-50, and that means Pence does the one thing a VP is actually good for.

    ReplyReply



    3



    0
  11. Daryl and his brother Darryl says:

    @Kathy:

    The Cloture vote passed 51-49

    FWIW…The no votes represent ~30,000,000 more Americans than the yes votes.

    ReplyReply



    7



    1
  12. Leonard says:

    @Daryl and his brother Darryl: It’s worth nothing. That’s not how our system works.

    ReplyReply



    1



    7
  13. Michael Reynolds says:

    @Kathy:
    There’s a Zen koan in there somewhere.

    ReplyReply



    2



    0
  14. Scott F. says:

    @Gustopher:

    This could work until the squirrels have to field their positions.

    ReplyReply



    0



    0
  15. george says:

    @Daryl and his brother Darryl:

    Perhaps a good argument for avoiding the whole circus the supreme court appointments have become over the decades by having the population directly voting for judges – and limiting them to say 12 year appointments? Three of them could be retired, and three more elected, every presidential election.

    ReplyReply



    0



    3
  16. Gustopher says:

    @Scott F.: The squirrels would need to be up to bat first, of course. And then, if no squirrel can be struck out, so it will always be top of the first. Forever.

    I suppose the lifespan of a squirrel might put an upper bound on game length. Do you get to replace a player if they die during the game?

    ReplyReply



    0



    0
  17. gVOR08 says:

    @george: Popular election of judges is one of the worst ideas in the world. IIRC Dr. Taylor’s book notes that no one in the world does it except us, and I think Bolivia, for a very few positions.

    ReplyReply



    5



    0
  18. Kathy says:

    @Gustopher:

    You could pitch (no pun intended) the idea to the New Looney Tunes show. Bugs hangs around with a squirrel named Squeeks. It would be a take on the classic, very old, cartoon where Bugs plays al nine positions at the same time.

    ReplyReply



    0



    0
  19. OzarkHillbilly says:

    @Leonard: Obvious man comes for a visit. So, something for you to consider:

    As for Kavanaugh, every opinion he writes, every decision he joins, and every day he sits on the bench will be tainted with illegitimacy. As senators who represent a shrinking portion of the population prepare to confirm a justice more Americans oppose than support, who was nominated by a president for whom most of the electorate did not vote, the crisis of American democracy comes into sharp relief. Whatever their self-perception, Republican control of the three branches of government is countermajoritarian. With the guardrails of separated powers broken, the last remaining defense for American democracy and the rule of law is the electorate itself.

    There have been many times where victory planted the seeds of defeat. In the end all things pass on.

    ReplyReply



    5



    0
  20. KM says:

    @OzarkHillbilly :
    The Founding Fathers stated they thought the Constitution would have to be revisited and revised frequently and never intended for it to become essentially inviolate holy writ. The arraignment for how the people were represented was designed to fit their current situation and as many scenarios as they could conceive but conceded that it may not be the eternal solution and left it to us to amend as needed. We’ve already changed what can be directly voted on and who counts as a voter so why not the number of people that can be represented by a single Congress critter? Why does it have to stay at 100 Senators – why not 3 per state? It would still be a relatively small, deliberate body but one that’s more reflective of the size of our nation. Why not increase the cap from 435 in the House to something more realistic for modern population figures? That figure was derived from the 1920’s census, almost a full century ago.

    For a country that claims to be a bastion of democracy, we’re very wedded to past traditions that limit our abilities to accurately reflect the people and their will. We can still preserve the Founder’s framework by maintaining the proportions but allow for growth. Of course, that requires the intention of reflecting the true makeup of the nation and so has no chance in hell of happening…..

    ReplyReply



    4



    0
  21. charon says:

    @Kathy:

    Manchin may not want to be Yes #50. Thus, Manchin is yes if Collins is yes, no if Collins is no.

    ReplyReply



    2



    0
  22. charon says:

    Of course, if Collins also does not want to be yes #50, it’s sort of a Prisoner’s Dilemna setup.

    ReplyReply



    2



    1
  23. Paine says:

    The FF really screwed the pooch with our Constitution. For a group of people who I’m told had a strong aversion to political parties they certainly put in place a system that was pretty much guaranteed to morph into a two-party system. They lacked the foresight to consider an increasing disparity in the size of states and the urban/rural divide. They assumed a degree of good faith in our pols that conflicts with basic human nature. The Constitution is written for a country that no longer exists and the Republicans have leveraged its failures into complete control and they will continue to cement their position of minority control.

    California, Washington, and New York should demand changes or secede.

    ReplyReply



    2



    2
  24. Jen says:

    Question for the legal types here: Assuming the Republican fence-sitters fold like cheap lawn chairs and Kavanaugh is confirmed and seated in time to hear the Gamble v. US case, what does this mean for the Mueller case timeline-wise?

    I recognize there are a lot of “ifs” in this scenario, but basically my question is: if Kavanaugh hears the case and the vote is 5-4 and is handed down in June of 2019 (IIRC, big cases usually but not always get announced right before the term ends), what would that mean if Mueller wraps up his case in, say, December of this year? Does Trump just hold on to pardons until after June when he’ll know the outcome of the case? Or, if he hands out some pardons in February and the decision is in June, are those individuals still able to be tried at the state level?

    ReplyReply



    0



    1
  25. george says:

    @gVOR08:

    I think that’s true for most places (in Canada for instance there’s never any controversy, and probably only 1 in 100 Canadians could name more than a single member of the supreme court), but in America appointing supreme court judges has become so political I figure it might as well be directly elected.

    In any case, they should definitely have limited terms.

    ReplyReply



    0



    0
  26. Kathy says:

    @KM:

    Why does it have to stay at 100 Senators – why not 3 per state?

    Would that change the makeup much? It’s still a state-wide office, subject to the partisan majority (if any) of every state.

    Why not increase the cap from 435 in the House to something more realistic for modern population figures? That figure was derived from the 1920’s census, almost a full century ago.

    This is a much overdue change. The population increase between 1920 and 2010 (last census) was about 200 million more people. Dividing population by 435, you get about 708,000 per Congresscritter. In 1920 it was 243,000

    If we take 1920 as a standard, and we don’t have to, then the right number by now should be about 3 times as many, or divide 308 million (2010 population rounded off) by 243,000 (the ratio of population to US Representative in 1920),a and you get 1,267 seats (1,367 electoral votes).

    This seems like a lot, and the ratio of population to Representative doesn’t have to stay fixed. But something like 620 or so, 1 per half million in population, seems like a reasonable figure.

    About the only downside I can see, is Nate Silver could not keep calling his blog Five Thirty Eight.

    ReplyReply



    0



    0
  27. HarvardLaw92 says:

    @Paine:

    California, Washington, and New York should demand changes or secede.

    I tend to agree. The US is effectively two countries – which hate each other – locked together within the framework of a failing union. I’ve come to the conclusion that it cannot be fixed.

    SCOTUS was the last thing left that these people hadn’t dirtied with their foulness. Now it’s gone as well. To be frank, today is the day that I fell out of love with America. I’ll renounce on Monday.

    ReplyReply



    1



    0
  28. James Pearce says:

    @HarvardLaw92: You’ll probably need to wait till Tuesday. Monday is a holiday.

    ReplyReply



    0



    1
  29. Just nutha ignint cracker says:

    @Paine: I’m confused about why Washington State would want/need changes or secession. I get NY and CA, but why would WA (#13 in pop.) be more likely than IL (#7), TX(#2), or FL(#3)?

    ReplyReply



    0



    0
  30. HarvardLaw92 says:

    @James Pearce:

    There is always a consular official on duty, 24/7/365. Monday it will be.

    ReplyReply



    0



    0
  31. James Pearce says:

    @HarvardLaw92:

    There is always a consular official on duty, 24/7/365.

    So you’re telling me they’re open on Saturday…

    ReplyReply



    0



    0

Speak Your Mind

*