Brett Kavanaugh’s suitability to serve as a Supreme Court justice differs from Donald Trump’s suitability to serve as a president in some obvious ways.
Kavanaugh has long previous legal experience, versus none in public office for Trump. For the past 12 years, Kavanaugh has held a job generally regarded as the closest thing to being on the Supreme Court—namely, a seat on the D.C. Circuit—and he has been on conservatives’ list of prospective future justices for a long time. Most people doubted, even as of Election Day, that Trump would become president. Most people have assumed, even as of now, that Kavanaugh will be confirmed.
But after this past week’s hearings, and before anyone knows what job Kavanaugh will hold next year at this time, it is fair to liken the two men in one important way: By the rules of previous, pre-Trump-era politics, neither of them could possibly have made this final career step—Trump to the presidency, Kavanaugh to the Supreme Court. Each has done things and revealed traits that would have been automatically disqualifying in the world as it existed before 2016. Donald Trump nominated Kavanaugh; Trump’s example is also shaping him.
By the pre-Trump rules of presidential campaigning, Trump’s prospects would have come to an end numerous times along the trail: when he mocked John McCain as “not a hero,” when he similarly criticized a Gold Star family, when he refused to release his tax information, when the “Grab ‘em!” tape came out, when he talked about the “Mexican judge,” when he revealed that he didn’t know what the “nuclear triad” was—the list goes on. After all, Edmund Muskie left the presidential race in 1972 to a large degree because he cried one time at an outdoor speech, in a snowstorm, and Howard Dean in 2004 to a large degree because he screamed too exuberantly one time at a post-primary-vote rally. Joe Biden was eliminated from the 1988 race to a large degree because he passed off someone else’s family-history anecdote as his own. Excesses like these became routine for Trump on the campaign trail, yet he went on.
In Kavanaugh’s case, his afternoon before the Senate Judiciary Committee revealed three traits that previous nominees who sat in that chair have carefully avoided, because they would have been considered so damaging. They were: temperamental instability; open partisan affiliations; and a casual willingness to tell obvious, easily disprovable lies. These are apart from the underlying truth of the multiple sexual allegations about Kavanaugh, which may not ever be provable.
The details in these three categories fill the weekend’s news, and have been covered in many strong posts on our site: by Matt Thompson, by Megan Garber, by Judith Donath, by Joe Pinsker, by Adam Serwer, and many others. But to explain the grouping, and why it departs from the known past:
(1) Temperament. Positions of public power that are in the public eye are uncomfortable. People disagree with you. They criticize and even hate you. Often they twist facts and reach unfair conclusions. All of this goes with the territory of being a president—or a governor, a general, a boss, any kind of leader, or anyone who has to make high-stakes decisions that involve other people, and that some people won’t like.
What also goes with the territory, or should, is a thick skin, and a long view. Politicians can get away with the occasional public flash of anger about unfair accusations. That can be part of the personality they present to their constituents, though Trump is the first to make grievance itself such a long-running political act. But judges aren’t supposed to. There’s a reason the adjective judicious has the word-origin that it does. And by past conventions, Supreme Court candidates were supposed to present themselves as the most calmly judicious of all.
Even two exceptions illustrate the rule. One was Clarence Thomas’s angry outburst at his 1991 hearing about a “high-tech lynching for uppity blacks,” in addressing allegations of sexist misbehavior. That was memorable because in the annals of judicial nominees it was so rare. And the circumstances of his nomination were strikingly different from Kavanaugh’s, given Thomas’s background as the child of a poor black family in the segregated South. (Thomas was finally confirmed on a 52-48 vote—which seems narrow until you remember that Democrats then had a 10-seat margin in the Senate. If bloc voting had been the norm, he presumably would have gone down, 45-55.)
The other exception came during Barack Obama’s 2010 State of the Union address. Obama criticized the recent Citizens United ruling—and Samuel Alito, one of the five Justices who made a majority in that case, frowned and seemed to mouth No, no from the audience. Alito’s “outburst” was notable enough that it was discussed for days.
Kavanaugh’s demeanor was as difficult to place on this scale of past judicial demeanor as Donald Trump’s rally-speech mode would be, when compared to the bearing of Dwight Eisenhower or Ronald Reagan or either of the Bushes. In addressing the senators on the Judiciary Committee, Kavanaugh was angry, disrespectful, self-pitying, boastful, and thin-skinned.
It would not have been in Amy Klobuchar’s nature to respond to Kavanaugh’s “have you had a blackout?” challenge with something like the following, but she would have been wholly within her rights had she done so:
Let me remind you, Judge Kavanaugh, that you are addressing members of the United States Senate, who have been elected by our constituents to assess your fitness for the lifetime position of trust that you aspire to hold.
Did he have reason to be angry? Probably so. But we choose combat leaders, surgeons, airline pilots, teachers, and others precisely for their grace under pressure, their ability to master their emotions. Judges, too.
(2) Partisanship. Modern nominees are of course faking it when they say that they would bring no preconceptions, and a perfectly open mind, to the cases that would come before them. Of course they have leanings. Why else would the lists of likely choices for a Democratic president be different from those for a Republican president?
But the very act of faking it—John Roberts’s claim that he would “just call balls and strikes”—demonstrates respect for the idea that justice should be above politics. Compare that with Brett Kavanaugh’s statement this week:
This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.
This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades…
And as we all know, in the United States political system of the early 2000s, what goes around comes around.
For an elaboration of why “what goes around, comes around” is the last thing you want to hear from a prospective justice, of any party, see this Twitter thread from David Franklin, a law professor and experienced Supreme Court litigator.
Again an exception proving the rule: By her own admission, Ruth Bader Ginsburg erred badly in criticizing then-candidate Trump during the summer of 2016. Within a few days she apologized, saying “My recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.” She acknowledged the norms by saying she was sorry to have violated them.
(3) Unnecessary lies. All politicians lie. All human beings do, too. But most politicians, like most people, stick with useful lies. Lies when the truth would be embarrassing or costly. Lies to get out of a jam. And lies when you think you won’t be caught. Richard Nixon usually told the truth when he didn’t have a reason not to. So did Bill Clinton, and LBJ. So do most of the rest of us—because, to emphasize the point, for most people it’s embarrassing to be caught in a lie.
For Donald Trump, the dynamic is different. He doesn’t care if everyone knows he’s not telling the truth. I laid out some of the evidence soon after the election, here. Daniel Dale, of the Toronto Star, has indefatigably chronicled Trump’s thousands of immediately obvious lies in his “Trump Checks” feature. Tiny example: during the campaign, Trump complained about the dates for debates with Hillary Clinton. In giving his reasons, Trump said that the NFL had sent him a letter asking to change the dates, because they conflicted with scheduled games on TV. Almost instantly, the NFL denied it had sent any such letter. Trump moved on, unfazed. He didn’t—doesn’t—care.
The surprise of Brett Kavanaugh’s testimony is that he, too, appears not to care. Tiny example: Kavanaugh said, again and again and again, that his high-school beer drinking had been legal, because he was 18, and the drinking age in Maryland was 18 at the time. Except neither of those things is true. He was 17 during the summer in question—he was born in February, 1965, and Christine Blasey Ford is talking about the summer of 1982—and in any case the drinking age in Maryland at the time was 21. These are not complicated or gray-zone facts.
(Mild complication: While Kavanaugh was still 16, Maryland’s drinking age was 18. Then, soon after he turned 17, the Maryland legislature raised the legal age to 21, as you can read here. But at no point in Kavanaugh’s high school career was he of legal drinking age in Maryland.)
Any high school student who likes beer knows exactly what the drinking age is. Kavanaugh knew then, and now. He just plain lies about it. And he seems not to care.
This lie stands out because his claim is so easy to disprove. So too with boof and ralph (“I’m known to have a weak stomach”). But Kavanaugh showed the same Trump-like lack of concern in a number of other, more policy-related assertions.
Nathan J. Robinson has an extremely detailed analysis of Kavanaugh’s response to Christine Blasey Ford’s account, here. (Its headline is, “How We Know Kavanaugh Is Lying.”) Soon after Kavanaugh’s nomination was announced, and long before the sexual-assault claims, Democratic senators Dick Durbin and Patrick Leahy said that Kavanaugh had misled them (“perilously close to being lied to”) about his role in the Bush administration’s torture policies, back during his D.C. Circuit confirmation hearings back in 2006.
Lisa Graves, who had been a Judiciary Committee staffer for Leahy, wrote in Slate that newly released emails and documents established that Kavanaugh had lied about his Bush White House role back at the 2006 hearings. The details are complicated, but she concludes:
Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.
Receiving those memos and letters alone is not an impeachable offense.
No, Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it….
And he did so repeatedly.
I have my own hypothesis, based on life experience and observation, about the reasons for the temperamental display we saw from Kavanaugh. (It’s related to Megan Garber’s.) But that’s just hypothesis for now; I don’t know if it’s true. I also don’t know, nor does anyone, how the vote on Kavanaugh will ultimately go.
But from behind the veil of ignorance separating us from the future, one thing about the Kavanaugh nomination is clear. Donald Trump changed all previous understandings of what would be acceptable, or disqualifying, in a presidential candidate. And with his displays involving temperament, partisanship, and disdain for veracity, Brett Kavanaugh is doing the same about candidates for the most powerful court in the land.