At Any Cost

Published: October 4, 2018

By Jim Lichtman
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With Two Updates —

Last night, before the close of the Senate’s business, before reading the FBI report that is scheduled to be available to Senators as early as 8:00 am this morning, Republican Senate Majority Leader Mitch McConnell said, “I am filing cloture (closure) on Judge Kavanaugh’s nomination this evening, so the process can move forward, as I indicated earlier this week,” as reported by The Hill (Oct. 3).

Even before the Senate’s Judiciary Committee came to a decision about an additional background check on Supreme Court nominee Brett Kavanaugh based on compelling testimony from Dr. Christine Blasey Ford, McConnell said, “…here’s what I want to tell you: In the very near future Judge Kavanaugh will be on the United States Supreme Court. … We’re going to plow right through it and do our job…”

Dr. Ford’s testimony? Doesn’t matter. FBI report due out this morning? Not important.

It was only a few days earlier that Senator Lindsey Graham said that he’ll “listen to the lady, but we’re going to bring this to a close.”

Should anyone be surprised?

Fairness? No longer exists in the Republican values book. Integrity? What’s that?

McConnell and Graham don’t even offer a veneer of fairness, because it’s not about an honest search for the truth. It never has been.

Former Senator John McCain called the Senate the world’s greatest deliberative body. Not with Republicans like McConnell in charge. Winning is all that matters.

But here’s something that does matter. Appearing last night on The New York Times website: “2,400 + (up from 650; updated 5:00 pm) Law Professors” wrote a letter that will be presented to the Senate this morning. It is a cogent plea for responsibility:

“Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires ‘a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.’ The concern for judicial temperament dates back to our founding; in Federalist 78, titled ‘Judges as Guardians of the Constitution,’ Alexander Hamilton expressed the need for ‘he integrity and moderation of the judiciary.’

“We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

“The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as ‘a calculated and orchestrated political hit,’ rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.

“As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice ‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’ These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.

“We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”

Will it make any difference?

UPDATE: In an unprecedented statement, retired Justice John Paul Stevens, a Republican appointed by President Gerald Ford, says that Judge Kavanaugh does not belong on the Supreme Court. As reported by Palm Beach Post (Oct. 4), Stevens said, “At that time, I thought (Kavanaugh) had the qualifications for the Supreme Court should he be selected,” Stevens said. “I’ve changed my views for reasons that have no relationship to his intellectual ability … I feel his performance in the hearings ultimately changed my mind.”


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