Who’s the New Man on the Supreme Court?

Brett Kavanaugh
Brett Kavanaugh

Yes, Brett Kavanaugh is the new Associate Justice of the United States Supreme Court. He was sought out and put forward by President Donald Trump who promised to nominate a pro-gun, anti-abortion candidate. President Trump did that. In addition, Justice Kavanaugh believes that a sitting president should not be subject to subpoenas or indictments and should, indeed, be above the law while in office. Donald Trump clearly found the right man for President Trump in Justice Kavanaugh.

Associate Justice Brett Kavanaugh admires the stance of that sharp-minded conservative, the late Antonin Scalia. Kavanaugh’s judicial opinions and speeches show that he’s a conservative, too. But there’s a crucial difference between Scalia and Kavanaugh. Scalia was properly known as a conservative; indeed, he was called an arch-conservative, an extreme conservative. He didn’t appear to have a Republican bias and didn’t see the Democratic Party as arrayed against him personally. Kavanaugh has and does.

On the first day of the Senate Hearings upon his nomination to the Supreme Court, nominee Brett Kavanaugh described his judicial philosophy this way:

My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent. In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: “the rules of legal interpretation are rules of common sense.” A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.

Probably every justice of the Supreme Court would like to be described as a neutral and impartial arbiter who favors no litigant or policy. And if they are, by and large, acting as neutral and impartial arbiters, you’d expect them to arrive at decisions unanimously. As a matter of fact, According to the Supreme Court Database, since the year 2000 a unanimous decision has happened 36 percent of the time, which is more frequently than any other result. The contentious 5-to-4 decisions came in 19 percent of cases.

Unfortunately, in recent years some very important decisions with wide impact on the way we live have come out 5 to 4. This happens, of course, because the court is made of nine people, not nine witless automatons. Judges are not umpires — Justice Kavanaugh likes to think of them that way, but they aren’t, not r eally. They are people who not only read the law and Constitution, they interpret the law and the Constitution in the light of their own life experience and their philosophical view of the world. That’s what they’re supposed to do. If all anyone had to do was to read the text, we wouldn’t need a Supreme Court.

It’s clear that young Brett was a heavy drinker in his late teens and early twenties. And there’s no question as to whether or not he did some of the stupid things that kids do at seventeen. In addition to pardonable adolescent behavior, he’s been accused of having assaulted  a fifteen year old girl; that’s a different matter, a grievous act — though beyond our knowing.

Associate Justice Brett Kavanaugh isn’t seventeen any more. He’s fifty-three. He spent more than three years working for Ken Starr, the independent counsel who investigated a train of apparent scandals and bad behavior surrounding President Clinton and his wife Hillary. Brett Kavanaugh helped fashion and write the report that led the House of Representatives to impeach President Clinton. And he wrote a memo to Ken Starr, (August 15, 1998) urging him to ask President Clinton detailed questions, such as:

If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?

If Monica Lewinsky says that she gave you oral sex on nine occasions in the Oval Office area, would she be lying?

If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?

If Monica Lewinsky says that on several occasions you had her give her oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?

Such questions were necessary, he said, in to make the full facts of the President’s revolting behavior clear to Congress, “piece by painful piece, ” so that they could decide whether or not to impeach him. So it must have been especially hard for Kavanaugh to find his own alleged sexual behavior questioned, piece by painful piece. No wonder he believed that the Hearing to assess his merits as a jurist had turned into something else. In his words: “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.”

It’s important to realize that Brett Kavanaugh’s outburst was not a spontaneous outburst at all. Before he read his statement to the Senate Committee, he said: “Mr. Chairman, Ranking Member Feinstein, members of the committee, thank you for allowing me to make my statement. I wrote it myself yesterday afternoon and evening. No one has seen a draft of it except for one of my former law clerks. This is my statement.” It was not a wild outburst. It was a an articulate statement, written from the man’s heart and mind.

Later in life, Brett Kavanaugh worked for five years as associate counsel and staff secretary to President George W. Bush. In a Minnesota Law Review article he  wrote that presidents should not be distracted by civil lawsuits or criminal investigations while in office; that presidents are too busy to deal with such “time-consuming and distracting” matters, which he said “would ill serve the public interest, especially in times of financial or national security crisis.”

Whether he had matured and changed his mind, or whether he had in mind a Republican president rather than a Democratic one is anyone’s guess.