On the Confirmation of a Supreme Court Justice

On the Confirmation of a Supreme Court Justice


　

　

These are dark days. An old man can only be wished to be done with them.

　

　


On being a gentleman
I don’t know whether Brett Kavanaugh is an attempted rapist, a black-out drunk, or an accomplished liar. I do know that he is no gentleman. His performance before the Senate Judiciary Committee on September 27, 2018 demonstrated this proposition. The essence of gentlemanly behavior is restraint, courage, and a scrupulous regard for sensibilities of others. Kavanaugh’s testimony revealed a man inebriated by rage, wrathful, inarticulate, and craven. Most seriously, the Supreme Court candidate showed no regard for the most fundamental element of gentlemanly behavior – that is, a sense of self-esteem that will not brook dishonor. Some may say that Judge Kavanaugh demonstrated a high regard for himself by indulging in tears, by sobbing, by hysterically threatening revenge, indeed, by his very undignified excess of emotion. Undignified displays of emotion are mistakenly thought to be a warrant of sincerity. Yet, anyone with experience in life will tell you that it is the easiest thing in the world to feign an utilitarian rage, a phony indignation, intended to intimidate others. Conservatives should agree with this statement: after all, exponents of the media use this strategy all the time to highlight their agendas.

I have said that one aspect of gentlemanly behavior, perhaps, it’s main component is self-restraint. A gentleman must not desire anything so much that he will behave dishonorably to achieve that goal. No one profits by winning a prize that has been achieved by craven or cowardly behavior. A gentleman must not appear "serviceable" – that is, willing to sacrifice his self-esteem in the pursuit of an office or other political objective. There is a good practical reason for this principle: a man who will do anything to attain office is not likely to show restraint when faced with the temptations inevitably concomitant upon public service. If you are willing to debase yourself to attain office, you will be willing to debase yourself to hold that office and profit from it. Judge Kavanaugh has disqualified himself from the office he seeks by demonstrating that he is willing debase himself to attain that office. This disqualification is only tangentially related to the unsubstantiated accusation of attempted rape.

To pose questions publicly about teenage black-out drinking and attempted rape, acts alleged to have occurred 36 years ago, to a candidate for the Supreme Court is to debase the man and the office. No one is obliged to answer such questions. Indeed, a gentleman will not tolerate questions about what he has been doing with his genitals. To even assume that a gentleman might be questioned on that topic is to fatally besmirch him before any answer is given. Self-respect is a virtue. A gentleman’s self respect is inimical to inquiries that are intended to make him seem small or petty or base. If such an inquiry is proposed, the gentleman has no recourse but to withdraw from the controversy and maintain silence on that subject. Senators are not priests nor psychiatrists and a confirmation hearing is not a confessional nor is it therapy. When challenged on this topic, Judge Kavanaugh had a completely reasonable right to refuse questioning and to withdraw his nomination. It’s a fatal character flaw to believe that you are the indispensable man – in fact, right-wing idealogues with strong academic credentials are common currency: the University of Chicago law school, for instance, issues them freshly minted in the dozens each year. Judge Kavanaugh should demonstrate humility in understanding that he is fungible with hundreds of his kind. He brings nothing to the Bench after the delirium of this week except dishonor. Rather than subject his wife and daughters to the hideous circus conducted by the Senate Judiciary Committee, he should have taken the better course of simply withdrawing. His participation in this spectacle merely shows that he desires the position more than he respects himself. I say this on the basis of an ancient proposition: A gentleman will not abide being accused of a dishonorable act. If he can not, without debasing himself, disprove the dishonor, he is obliged to withdraw from the quarrel. (The other option time-honored, but no longer available, is a duel – thankfully, that option can’t be exercised. The presence of women in positions of public authority has mitigated some of the more deplorable, and blood-thirsty, elements of the gentleman’s code of honor.)

I hope my point will enrage all sides of this present dispute. I maintain that Judge Kavanaugh is not obliged to answer questions about sexual misconduct in this forum. Putting those questions to this judicial candidate presupposes that he is person without self-respect and willing to dishonor himself by submitting to interrogation on this subject. No useful purpose is served by answering questions in this forum. The entire exercise is readily avoided by simply withdrawing from the nomination – this course protects the institution, serves the country, and doesn’t further the humiliation of the nominee’s wife and children. It must be remembered that Judge Kavanaugh’s appearance is voluntary – he controls the process and it can not proceed except with his consent. When the process obliges its nominee to behave like the suspect in a criminal case, the candidate shouldn’t dignify the accusation with an answer. He should simply withdraw.

No political office is so important that it is worth the sacrifice on honor and self-esteem. A man who ascends to an appointment at the cost of his honor has no credibility. If Kavanaugh persists in his candidacy because of outside influence, he shows himself to be a coward. If he remains a candidate on the basis of a craven willingness to submit to any humiliation to attain the judicial appointment, he shows himself to be profoundly dishonorable. A gentleman understands self-respects demands that he withdraw from a dilemma that presents only dishonorable outcomes.

　


On fighting back
It is reported that the President, who is no gentleman himself, much esteems Mr. Kavanaugh for fighting back against his accusers. The specious argument is made that if he doesn’t stand his ground, his ideological opponents will prevail and win the day. This argument is wrong because not all fights are worth winning if the outcome is irremediably destructive. Here Kavanaugh’s furious riposte to his adversaries makes him a figure of fun, a comical red-faced little man sobbing because someone has said mean things about him. But worse this process degrades the Supreme Court. The "high-tech lynching" that debased Clarence Thomas seems to have wounded that Justice in some terrible way. For 27 years, Thomas has scarcely uttered a hundred words from the Bench. In his official capacity, he seems to have spent a quarter of a century sulking, exercising little in the way of independence, and, indeed, almost always voting obediently for arguments and outcomes advocated by the late Justice Scalia. I have no idea why Justice Thomas has shown this odd demeanor and, perhaps, his reticence on the Bench has nothing to do with the awful spectacle preceding his confirmation. But it is, at least, arguable that wounds inflicted in a bloody confirmation process don’t readily heal and that Judge Kavanaugh’s ascent to the Bench will be just one more discredit to the High Court that was, within living memory, the last universally esteemed division of government.

It does no one any honor to win a fight at all costs.

　


On Judicial Temperament
I didn’t support Judge Kavanaugh’s nomination to the Supreme Court on the basis of disagreements with policies that he has endorsed. But, until September 27, I had no reservations about his judicial qualifications – that is, his ability to comport himself as a rational person on the Bench. His frantic, bellicose, and self-pitying defense against Dr. Ford’s accusations, however, now casts a dubious light on the candidate’s judicial temperament.

Judicial temperament is the concept that a magistrate will display equal courtesy to all litigants who come before his or her Bench. A good judge must be tolerant, gracious to petitioners before the Court whatever the merits of their arguments, and should display neither arrogance nor prejudice in deciding causes of action. Ideally, this temperament requires a poker-face, modesty, and patience. In essence, a Judge must be gentlemanly and, thus, I revert to my earlier arguments on this point.

Judge Kavanaugh’s petulant rant was immoderate, intemperate, and offensive. In an open forum, he denounced opponents as partisan and went so far as to vow revenge against them. (Of course, his opponents are bitterly and dishonestly partisan as are his supporters – judicial temperament is adopting the fiction that a good judge rises above partisan bias. There is an important reason for maintaining this fiction, the mask of impartiality, that I consider below.) Kavanaugh’s epic harangue, punctuated by maudlin episodes of weeping, was the exact opposite of what one expects as judicial temperament as a judge of this nation’s highest court. His speech was self-serving, petty, vindictive, promising a "whirlwind" of revenge. It was all-together unseemly and, in itself, both profoundly disquieting and disqualifying.

Does Judge Kavanaugh propose to recuse himself from any controversy in which political issues arise or in which the party-politics of one or the other litigants is known to him? He has openly declared himself the enemy of one-half of the petitioners who will appear before him if he is confirmed. This is an awful problem prompted by the nominee’s undignified display of wrath against the Democrats.


　

　

On the unreliability of the accuser
My criticism of Judge Kavanaugh does not imply endorsement of Dr. Ford’s accusation. Quite to the contrary, I don’t regard her accusation as being credible. Therefore, her charges are not probative in my view.

Good lawyers and judges will tell you that the most unreliable evidence comes from eye-witnesses. And it is evident that interposing 36 years between the event at issue and subsequent testimony is fatal to granting credence to Dr. Ford’s account. Memory isn’t an electro-magnetic tape inscribed somewhere in our brains that we can access and play-back to establish the truth of things that happened a long time ago. To the contrary, it is now understood that the mind constructs memories. Our imagination fills in blanks and builds narratives. Dr. Ford’s bizarre remark that the assailant’s laughter was somehow inscribed in her "hippocampus" displays a naive, even grotesquely mechanical, understanding of memory. As with everyone else, Dr. Ford’s memory is a pliable instrument, a flexible device that synthesizes what actually happened with what we have been told and what we have subsequently come to believe about the event recalled. All of us recall events significant to us that simply didn’t happen or details about memorable things that are entirely false. Once a memory has attained the status of a story that we tell ourselves we construct our own truth. People are almost invariably persuasive when providing eye-witness testimony from memory – that is, because they have come to believe the story constructed by their recollections. (For this reason, lie detector tests are meaningless – this applicance, to the extent that it works at all, and this is questionable, merely measures whether the proponent of a story believe what she is saying. I have no doubt that O. J. Simpson firmly believed that he didn’t kill his wife and the man that she was with. Once you have declared something to be true, you come to believe it as true – declaration proceeds faith; this is something known by all religions: if you speak the creed enough times you will come to believe it.)

Jails are full of people credibly accused of profoundly memorable crimes who have turned out to be innocent. DNA testing has exculpated hundreds of men who were condemned for terrible crimes on the strength of eye-witness testimony. Dozens, most of them African-American men, have been judically executed on the basis of what now seem to have been false memories. Every day in Court, people swear on stacks of Bibles to the truth of memories that are simply mistaken – these people are not lying; rather, they are recounting memories that have developed into narratives for one reason or another and that are, therefore, unreliable. Thus, we can not believe the literal truth of an account spoken from memory and detailing an encounter 36 years ago.

The pliable, negotiated aspect of memory, is well-understood by criminal lawyers and judges. Legislators recognize the frailty of memories by establishing statutes of limitation. After a certain number of years, cases can’t proceed because they are simply too old. The defect in a case relying on ancient memories is not merely the probability that the eye-witness has the facts wrong or misremembers certain things – further, the lapse of time has erased memories in corroborating witnesses and has resulted in the destruction or loss of tangible objects or writings. It is well-known that eye-witness testimony must be corroborated. And corroboration becomes problematic after the lapse of several years, let alone decades. Most civil and criminal cases are subject to a six year statute of limitation. Dr. Ford’s accusations are old by a factor of six times six years. This means that there is no basis to believe her story.

　


On the Mask of Impartiality
I have said that judges must display forbearance, gentility, patience in the highest degree, tolerance, and respect. Judges must be scholarly and, even, their most vicious decrees must be delivered without the slightest traces of emotion or partiality. It will seem, therefore, that I am requiring super-human qualities of the mere men and women who assume this role in our society.

This understanding is correct. But, with the caveat, that I don’t require judges to actually possess these magnanimous attributes – rather, I expect judges to pretend to have these qualities. We all know that judges are prone to every fault to which flesh is heir. But, in the discharge of their public duties, they must always display the mask of impartiality and, indeed, should act as if invested with virtues far beyond those accessible to most mortals.

Why is this pretense necessary? We have Courts to avoid the violence that necessarily ensues when two unassailable rights conflict with one another. Courts are bulwarks against murder, plain and simple, the kind of violence that arises when people feel that they have suffered a grave injustice. People will tolerate all kinds of pain and anguish, but there is no one who can accept with equanimity an injustice at the hands of another. Courts are constituted to address the conflict of right and right and, indeed, many problems presented to judges are literally insoluble. Where an insoluble question arises, the intervention of providence is required. Thus, in a very real sense, the offices of the court are divinely instituted. If human reason can’t discover an answer, then, we must petition the gods for their intervention. And this remains the role of the courts even in this secular age.

A case doesn’t reach the Supreme Court of the United States except by a remarkable concurrence of accidents. Courts don’t legislate. They don’t select the causes that they decide; rather, by happenstance, those causes seek out the Court. First, you must have litigants properly positioned to raise the issue requiring deliberation. Then, settlement and compromise must be avoided – and, almost, all cases are resolved by some kind of conciliation. Then, a trial must occur and the case must be decided in such a way that someone can allege error on the part of the tribunal. An appeal must be lodged and, again, settlement avoided. After years, the case, if properly managed and financed, may reach the Supreme Court where then, it may languish as not worthy of the High Court’s attention – that is, certiorari, the Court’s permission to advance the dispute to a hearing, must be granted, a decision that is often invested in clerks just graduated from law school. Throughout this process, any number of events can occur to derail the proceeding: litigants can die or run out of money or their lawyers become disabled and die themselves. The issues may become moot or, something may intervene, to deprive one or the other of standing to pursue the claim. Accordingly, it is only the tiniest percentage of disputes that reach of the High Court and, then, on the basis of a concatenation of factors likely not reproducible. The case finds the Court and not vice-versa.

Supreme Court judges are more like soothsayers than the servants of reason and justice. They are imagined to be conduits for some transcendental force, a divinity that deflects events toward righteousness and justice. For this reason, a certain aura of the sacred must invest judges serving this institution. It is this aura that I call "the mask of impartiality". Judges are human before they put on their robes to preside over the tragic conflicts that arise when one right conflicts with another. But once they assume the Bench, they are cloaked in beneficence, guided, so it must seem, by impartial supernatural forces, or, stated in another way, implacable historical imperatives.

Accordingly, we cast aside the "mask of impartiality" only at grave risk to the institution.

　


On compromise
I saw the Senator Lindsay Graham shouting with contorted features that the accusations against Judge Kavanaugh were a disgrace. I observed him to declare that no compromise was possible and that the struggle to confirm this judge must continue without surcease, a battle waged without quarter, mercy, or any acquiescence to opposing views.

People often erroneously assume that explosions of wrath are actions that have meaning. These assumptions are generally untrue. The expression of rage, generally, is meaningless and, in fact, often a prelude to compromise – some emotion has to be aired before an agreement can be reached.

Not 24 hours later, Senator Graham participated in an accord completely inconsistent with his emotional tirade the preceding afternoon. I watched both episodes on television. The Senator’s bellicose howl disturbed me. The next day, I was cautiously optimistic after witnessing the compromise negotiated through Senator Flake

Reaching compromise is always a good thing. I am hard put to agree that there are any exceptions. The art of governing is reaching accords that don’t totally defeat an adversary. An adversary who has been humiliated will be an implacable enemy and it is folly not to understand that human affairs are cyclical – the victory of my party today is a prelude to defeat tomorrow.

Compare the two sessions, both of which were televised, and ask yourself which was the better proceeding.

　


On Righteous Indignation

Senator Graham’s willingness to compromise was a rebuke to the concept of "righteous indignation." There is no such thing as "righteous indignation." To be indignant is to be angry. Anger is a mortal sin. Persisting in anger is persisting in mortal sin. Righteous indignation has never accomplished anything but slaughter.

Some say that Judge Kavanaugh’s harangue to the Committee on the 27^th of September was a salutary expression of "righteous indignation." What I saw was raw anger, petulance, the feckless Cri de coeur of a pampered bully, someone who has never been told "no." If Kavanaugh’s display was "righteous indignation," the world needs less of this.

　

　

　

　

　


On declaring the Supreme Court to be a partisan tribunal
My opposition to Brett Kavanaugh’s nomination to the Supreme Court is based on the fact that the candidate has been a bare-knuckled partisan for most of his life. It is impossible to imagine that he will not bring his form of no-holds-barred partisanship to the High Court.

Kavanaugh has never been an attorney in any capacity recognizable to most practicing lawyers. He has been so warmly ensconced in the womb of bitter political partisanship that he seems somewhat fetal, a person who has never been properly born. Immediately out of law school, he joined Ken Starr’s investigation of Bill Clinton and was a participant in writing the 1997 report that urged impeachment proceedings against the President. After a brief stint at Kirkland & Ellis, he was hired by George W. Bush’s legal team to labor on the election dispute in Florida that eventuated in the Supreme Court litigation that installed Bush in the White House. From that position with the Bush administration, Kavanaugh went to work for attorney general Alberto Gonzalez, a man who is, by any definition, a war criminal. Gonzalez authorized "enhanced interrogation techniques" in Guantanamo Bay and other places following an infamous memo written by John Yoo. Somewhat implausibly, Kavanaugh has claimed complete ignorance of this so-called "torture memo", although it is curious that the day after Yoo published this writing, Kavanaugh enthusiastically recommended him for a Federal court appointment. Although some commentators have baldly condemned Kavanaugh for his involvement in these issues relating "to the conditions of detention" of terrorist suspects, the evidence is unclear as to his exact role. Crucial documents on this subject have not been released or disclosed.

Slavoj Zizek wrote this about torture:


　
Open declaration that the Supreme Court is politically partisan. Cynics will say – "what’s wrong that declaration. Of course the Court acts along ideologically partisan lines.

Lacan

　


You can’t achieve a good end by evil means
Both those supporting Brett Kavanaugh and those unalterably opposed to his nomination to the High Court are engaged in a battle in which the ends are thought to justify the means.

Those who support Roe v. Wade feel licensed to do anything to maintain that case in effect. Similarly, those who oppose abortion as a right are inspired with a "righteous indignation" that masks evil means in support of an arguably virtuous end. But the simple fact is that evil means cannot be justified by a good end. Evil is infectious – it taints the outcome with the means sought to achieve that end. This is the moral of every single war ever fought on the face of this earth. I didn’t believe this when I was younger and, in fact, argued to the contrary. I’ve now seen enough conflict and wars to know that good is never accomplished by evil.

　


On achieving victory over others
The wise man knows that nothing good ever arises from the defeat of an enemy. My victory diminishes my adversary and inspires him to revenge. When a man defeats another man, he merely perpetuates the strife that caused their conflict in the first place.

The only enemies worthy of defeat are those that we harbor within us. The only victory worth achieving is a self-overcoming. The adversaries that will destroy us reside in our own hearts. We must strive to defeat our own fears, our greed and lust, our bitterness and animosity toward others. This victory is the only triumph worth achieving.

　

These are dark days. An old man can only wish to be done with them.