With Kavanaugh, Why Trust the Supreme Court Anymore? Views From One Admitted To Practice There
As of October 6, 2018, he is now Justice Brett Kavanaugh, Associate Justice of the United States Supreme Court. However, this coronation has come at great cost. It has scarred women’s dignity and honor, a woefully incomplete FBI investigation into whether Kavanaugh’s testimony under oath was truthful, memories of Merrick Garland with the rush-to-judgment to get Kavanaugh on the bench, and questioning whether he is Trump’s shill as a high court Justice. The “take no prisoners” approach by those in power cared less about the country, decency, and the rule of law than hoisting a World Series pennant over the court building after Kavanaugh’s confirmation. Even the final vote, 50-48, had to be artificially propped up to not make the margin of victory the worst in high court history. Sen. Lisa Murkowski (R-Alaska), the only Republican not to vote “yes”, was recorded only as being “present” in the final tally because Senator Daines (R-Montana) was not available to vote. Joe Manchin (D-W.Va.) was the lone Democrat to vote yes. The only time a Justice was confirmed by one vote was in 1881, when Stanley Matthews was confirmed 24-23. Even Justice Thomas was confirmed by a four-vote margin. Immediately after the vote, a ceremony outside of public view was held to formally induct Kavanaugh. That said a lot about him too.
What’s more important is that his confirmation seems to challenge our faith in the Court’s hallmark of integrity, honesty, trustworthiness, and lack of political leanings. Justice Elena Kagan echoed this sentiment in remarks she coincidentally gave last week at Princeton University. But with Kavanaugh sitting in judgment as one of the nine, it is not good to the lawyers and members admitted to practice before the Court.
I am one of those attorneys.
During the confirmation process melee, I unearthed my bar certificate admitting me to practice before the Supreme Court. It dates back 41 years when a noted state and federal judge nominated me for admission. I re-read every word of that certificate, and it brought me back to that incredible day all that time ago. I was invited to share my areas of expertise in matters of national importance.
I traveled from Chicago to attend the oral arguments in all such cases, sometimes standing in line at a side entrance to the Court in the wee hours before the light of day to get the best seat by those presenting oral arguments. It was an exhilarating and exciting experience, knowing there was a measure of prestige being before the nation’s highest tribunal, where one’s opinions would have a lasting impact nationwide.
Before the court call on those days, I would breakfast in the court’s lower level cafeteria, joining other lawyers and the everyday citizen wanted to attend the case out of personal or social interest. Their passion viewed through a lens not my own was palpable, and I treasured learning from all such interactions.
The court itself is majestic and hallowed, not only in a physical sense with its décor, trappings, and history, but in a more personal way. Knowing that nine outstanding and seasoned legal minds sitting on an elevated, curved dais in leather-backed chairs before rows of attendees would decide the issues, question and verbally joust with the advocates, and even banter with one another occasionally was equally awe-inspiring. We knew it was done with the utmost of respect, fairness, impartiality, and without concern for expressed political leanings, if any, from their past. Some frequently asked questions, others not so much, and in current times, Justice Thomas not much, if at all. It was a bastion of male dominance until Sandra Day O’Connor took her seat in 1981 as the Court’s (about time) first female Justice. Those that attended oral arguments listened in respectful silence, hanging on every statement and position expressed by the parties’ counsel and the questions asked by the Justices.
But there could also be sprinkled in a bit of levity. I recall noted Harvard legal scholar and law professor Lawrence Tribe answering a question put to him by Justice Ginsburg, but in responding, addressing her as Justice O’Connor. Many exchanged quizzical looks, but moments like these could cut through the long but fulfilling days.
We know a President from one party or the other nominates a Justice and, with the advice and consent of the Senate, is confirmed. We therefore realize each Justice comes to the court with a party bent, but their leanings can and do change over time. Yet as members admitted to the Court’s bar, lawyers have to adhere to standards of conduct, ethical behavior, and decorum. Even our work product in crafting legal briefs and oral arguments are done with meticulous fervor and hours of labor, ensuring every written and spoken word is assembled and articulated with considerable thought, meaning, and persuasive advocacy. Equally true, we presume our work is well worth the effort because each Justice comes to a case with an open mind, uninfected by personal background and beliefs. We consider them all to be impartial decision-makers, with no predisposition before hearing all the facts, guided only by the rule of law, their intellect, and expertise. In a sense, this is a dynamic infused with mutual trust and respect involving the Court and the members of its bar.
But, now comes Justice Kavanaugh.
When Justice Kennedy sat, we understood him as a swing vote. We also could reasonably know who the "liberals" were and certainly those labeled "conservatives". However, we knew each would listen to our written arguments and how we styled them. Even back in my office as we were preparing, we discussed the precise wording to use that could (hopefully) attract at least five votes, maybe even be a footnote or statement in the written opinion. One particular story stands out.
It was in the Washington v. Glucksberg and Vacco v. Quill cases, both holding that a terminally ill patient could engage in assisted suicide under the Constitution's due process and equal protection clauses. Both appellate courts upheld that right, but with Justice Scalia on the High Court at the time, we knew he might view this from a religious standpoint as quite objectionable and unlawful. Regardless, we thought he would listen and base his opinion on what was presented. While in the end, he failed to affirm both lower courts -- as did all the justices in a unanimous decision -- we never went into our legal work with the assumption that he was a partisan or represented the interests of the President and the political party that nominated him. As a footnote to these cases, Justice O'Connor opined that it was up to the states to establish whether such a terminally ill patient could be assisted in death by a medical professional. Starting with Oregon, states did just that in subsequent years.
Another tidbit, before court was in session for these cases, we spoke with many people, from those claiming this constituted a slippery slope for elderly Americans to those with long held and well-grounded religious beliefs. It couldn’t be more inviting, and was most instrumental on my own beliefs and advocacy, but above all else, we all thought the independence of the court would prevail with its integrity and honesty intact regardless of the outcome.
Any member of the Court’s bar knows now that over 2,500 law professors, including retired Justice John Paul Stevens, declared their opposition to his nomination, based not on his legal intellect or service as a federal D.C. Circuit Court of Appeals judge for twelve years, but from his temperament and demeanor in response to Dr. Ford’s testimony. We also cannot escape his vengeful outbursts of political partisanship despite his follow-up op-ed in the Wall Street Journal to reaffirm his allegiance to impartiality and fairness for all. Regardless of what he wrote, his testimony felt nothing but a cloak and dagger substitute for the truth. Complementing this will be the many that wanted to speak to the FBI to discredit him, but were never given the opportunity. His nomination process became its own non-sequitur. Even the American Bar Association now wants to reopen its initial evaluation of him. The toothpaste is already out of the tube, for what he said and how he said it will remain seared in our memory, not soon to be forgotten.
As practitioners before the Court, we will also never escape the ugliness that engulfed Kavanaugh with challenges to his honesty and transparency. Noting his disrespect of Senators that questioned him, his lying if others are to be believed, and certainly his evasiveness and deviousness in answering critical questions from his judiciary committee inquisitors, all have a shelf-life defined by years, not by months or days. Though denying an alleged sullied past with present day testimony, how can the Court as an institution be trusted any longer? It is doubtful. Has it now been consumed by the tribalism that has tortured our other two branches of government? Quite likely.
There certainly will be attempts to disqualify Justice Kavanaugh on conflict of interest grounds by groups affiliated with political viewpoints to which he has publicly shown disagreement. Should the November elections turn one chamber blue, there may even be attempts to further investigate him or the FBI report that allowed the likes of Sen. Susan Collins (R-Me.) to believe he was not guilty of sexual assault as she claimed the investigation showed he did not assault Dr. Ford. Will there be criminal charges filed against him in Montgomery County, Maryland by one or more of his accusers? Rep. Jerry Nadler (D-NY) certainly has declared the need for future investigation if the House becomes Democratic and he is appointed to head the chamber's Judiciary Committee. Rep. Eric Swalwell (D-Ca.) has echoed the same thinking. And then there is attorney Michael Avenatti's client whose assertions against Kavanaugh are ones without a statute of limitations to govern them in Maryland. These possibilities exist, one or more of them, however unlikely.
Certainly there is the smoke of impeachment talk, recalling Justice Samuel Chase’s impeachment from the high court in 1805 for his political leanings. History reminds us that after the 1800 elections, Jefferson and the Democratic-Republicans sought to weaken Federalist influence on the federal courts. While a sitting justice, Chase was accused of political bias affecting how he decided cases, and Jefferson thus wanted him removed from the court. Though the House filed eight articles of impeachment, the Senate acquitted him. He served on the court until his death in 1811.
For anyone to conclude that the black robe Kavanaugh dons while on the bench is a new coat of armor to shield his critics is grounded in a false negative. Presenting oral arguments or submitting written briefs for him with the aura of a sitting Justice on the dais would be looking at him through rose-colored glasses. Even recalling his mea culpa op-ed piece while writing a brief or appearing at the court's lectern to trust his clarion call of independence, fairness, and impartiality is a fool's errand. As if to add fuel to the fire on how Trump first introduced Kavanaugh in the summer upon his nomination, how Trump addressed him in the ceremonial swearing hammered home his being a political operative.
Without seeing his authored opinions, ones in which he joins or dissents, the answer remains open whether the Court will retain its independence, integrity, honesty, and trustworthiness. These priestly hallmarks, though, have been politicized, as they are the sacrificial lamb Republicans had to slay in order to get Kavanaugh confirmed. For a lawyer admitted to practice before the Supreme Court, that is a distasteful thought.