TOO MUCH SUSPICION
If I were a senator and I had had to vote for or against Brett Kavanaugh, I would have voted Nay (“Injudicious,” October 19). I, too, have concerns about his integrity, and I believe he obfuscated the truth in his September 27 hearing. This carries even further rhetorical value in that Judge Kavanaugh’s legal theory is congruent with my own. While I found much agreement with your editorial, I’d like to point out a few dissonances.
While it is quite easy to depict Judge Kavanaugh as petulant and partisan from his opening statement, what if (and fairness demands such an evaluation) this is an innocent man who was thrust into some extremely difficult conversations with his wife and two daughters? And, as he fought to make sure trust wasn’t broken with those closest to him, he had to endure the immediate crumbling of the reputation he spent years building? While all this is happening, he and his family must handle the many death threats being made against him. I can’t imagine it completely unreasonable for him to be angry with the Democratic side of the dais. And while it is legitimate to question how he, a nominee to the highest court in our land, should handle such pathos, I believe it is quite unsympathetic and uncharitable to merely depict him as a bellicose and entitled person without any empathy for this possible context. Simplistic writing that does not seek for such evenhandedness just continues to add fodder to the ridiculous partisan drivel currently dividing our country.
My final observation about this editorial centers on the paragraph listing the “reasons to oppose Kavanaugh’s elevation to the Supreme Court.” To me this paragraph exactly captures the problem of some current views of the Supreme Court nominating process. For instance, if I were a senator, my job would not be to vote Nay on this judge because his previous rulings have carried political conclusions I don’t share. Even if her judicial philosophy is antithetical to my own, it would not warrant a Nay. The president gets to pick the nominee. If we don’t like Kavanaugh and Gorsuch, then we need to get Clinton elected, or if we don’t like Kagan or Sotomayor, then we need to get McCain elected. The bench isn’t a place to whirl up activist tides. Instead, my job as a senator is to make sure the candidate in front of me is scrupulous in her work and in her integrity: a judge who is consistently dedicated to the rule of law as she views it, and expresses that through tightly constructed, logical opinions; a judge with no moral stain in breaking the laws of the land and without a hint of biased or bribed decisions. The way we oppose the elevation of judges who don’t see the law the way we do is at the voting booth, not the Senate chambers. The Senate does need to keep immoral and perjurious judges from the highest bench in our land, and it is precisely here where Judge Kavanaugh has created too much suspicion to be confirmed.
SOMEWHERE IN THE MIDDLE
Like many Americans, I have more than a passing interest in the U.S. Supreme Court. I care deeply that the Court functions in a manner that aligns our nation with our very best, albeit imperfect, understanding of God’s will.
I am also an attorney, and I have come to realize that my legal training has affected the way I view the world. After decades of hearing multiple versions of a historical event, I have come to the firm belief that the truth is always somewhere in the middle of the competing accounts and never resides solely in any one version. The passage of time from the event itself serves to amplify that effect. With the passage of time, the memory alters slightly each time it is recalled. These alterations seem, to the witness, to be clarifications, the recollection of additional details, a sharpening of the memory, when, in fact, they are just as likely a gloss that binds pieces of subsequent life events, emotions, and other foreign matters to the recollection of the actual historical event, making the memory less accurate while convincing the witness that he or she is remembering more and more clearly. This alteration by degrees of the memory is not a deliberate act on the part of the witness; it is simply the way our minds integrate experiences from the distant and middle past with the present.
So we would all do well to bear in mind that the best-intended testimony is never an accurate accounting of the true event, no matter how honest the witness. With that awareness, I watched Dr. Ford’s testimony as well as Justice Kavanaugh’s. It does not take much imagination to come up with scenarios that are compatible with the essence of both Ford’s and Kavanaugh’s accounts, but that do not match either account precisely. And if we were somehow able to reconstruct the actual event, we might well see that both accounts presented at the Senate hearing were the most honest recounting of the past each of them is now capable of expressing.
Your editorial overlooked the probability that neither witness accurately recounted that historic event in every detail. Instead you described Ford’s testimony as “forthright,” “‘incredibly credible’,” and “courageous.” It was, in fact, all those things, but that doesn’t mean it was the full truth of her past experience.
Of Kavanaugh’s testimony, you used language such as “distortion of the truth,” “perhaps he truly cannot remember doing what he is accused of,” and “possibly perjurious.” These all go to the truthfulness of his account and find it lacking. I submit that it was indeed lacking, as any representation of past events necessarily must be, but that it was not necessarily dishonest.
You opined that Ford’s testimony was motivated by her “sense of civic duty,” yet Kavanaugh was motivated by “partisan fury,” “disdain,” and “intemperan[ce].” I searched in vain for any reference to the attacks that Judge Kavanaugh and his family endured during the ten-day public investigation of his sexual behavior. Perhaps the tenor of his testimony was motivated by a very human desire to rehabilitate his honor.
I searched for some mention of the noteworthy accomplishments in the spheres of university, community, and career that show Kavanaugh’s impressive arc to maturity, but found nothing beyond disparaging descriptions of the teenager Kavanaugh once was.
You chose to base your opposition to Kavanaugh’s confirmation on his lack of judicial temperament. This was the safe route, pointing out his temperament in a singular situation rather than accusing Justice Kavanaugh of having been a teenage wannabe rapist, but you effectively got your message across. Similarly, you noted your dissatisfaction with his legal views on voting rights and executive power, as well as his apparent partisan behavior when working on the Starr Report and working in President George W. Bush’s administration. Yet these perceived flaws were really just side issues compared to the really big flaw of overreacting during a hearing where his career, aspirations, reputation, and honor were all on the line. At this point, I should grant you that your piece was expressly an opinion piece; nevertheless, an opinion must be well supported to be convincing.
If we want to look at Justice Kavanaugh’s judicial temperament, we can review his temperament while actually serving on the federal bench for more than a decade. We can ask his colleagues, lawyers who argued in his courtroom, his students, clerks, and staff. In fact, we did do all those things and his temperament was unassailed. We can choose to overlook his years of judicial service where his judicial temperament was actually on display, or we can look at the worst day of his life; but wouldn’t that be “injudicious”?
THE EDITORS REPLY:
It is reasonable to expect a person who believes he has been falsely accused and mistreated by the public to defend himself by responding directly and honestly to specific allegations. Brett Kavanaugh had an opportunity to do this. Instead, he opened his testimony with an explicitly political broadside against the Democratic senators who had dared to confront him with Christine Blasey Ford’s accusations. He evaded many of their questions, or angrily turned them back on the senators themselves. Of course, it would be unfair to expect either him or his accuser to remember everything about the night in question, but our complaint was not about his imperfect memory. Kavanaugh plainly misrepresented facts at several points during his testimony. The “witnesses” who “refuted” the alleged attack on Ford or “said it never happened” (his words under oath) did no such thing; they merely said they did not recollect seeing an attack themselves, or know about it. His explanations about the meaning of crude language in his high-school yearbook entry were patently absurd. Whether Kavanaugh should have had to face questions about his pre-collegiate past was an issue decided when the bipartisan Senate committee agreed to hear Ford’s testimony. We still believe that the belligerent and disingenuous way he answered those questions told us something important about his temperament, and that this has to be weighed against his “years of judicial service.” It was, to be sure, a stressful moment for the nominee, but life on the nation’s highest court is full of stressful moments, and we don’t expect a justice to react to them with partisan fury.