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Judge Kavanaugh, Judicial Temperament, and the "Circus"

Kavanaugh was correct: it was a circus. But he was the one who made it a circus - and for that (apart from anything that he may or may not have done in 1982) he should not be confirmed.

"This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades."

Judge Brett Kavanaugh, 9-28-2018

He was right. It has been, like much of our political life these days, a "circus."

But here's the thing: the hearings were not a circus - at least, not until Judge Kavanaugh took the stand. Quite the opposite, I thought. The first portion of the event had real dignity to it; I would rate it one of the Senate's finer moments in many years (a low bar, but still ...). Conducting a public discussion of sexual assault is a very, very difficult task, and I thought the Senators (and Ford) largely pulled it off. The decision by the Republicans to use Rachel Mitchell as a surrogate questioner worked out wonderfully well; she, too, seemed to acknowledge and recognize the historical importance of the moment, and to my ears her questions were probing but respectful - respectful of Ford, respectful of Kavanaugh's right to be heard, and respectful of the whole process. Again: dignified. Most welcome in a world where dignity sometimes seems to have disappeared completely from our public life.

But then Kavanaugh brought the circus into the hearing room from outside. I thought it was a shameful performance.

I am not unsympathetic to his anger and his fury. If his account of the events is true - and I was and I remain open to the possibility that it is true - he has indeed been subject to a terrible public humiliation that no one would wish on their worst enemy. It is not hard to imagine - again, in the world in which he, and not Ford, is telling the truth - why he would be full of rage and righteous indignation.

But that does not excuse his venting of that rage and righteous indignation at the hearings. He didn't have to do it. There was a high road: He could have made his case, on the merits, without the fire-breathing and the invective and the anger.

"I'm innocent of this charge. I have no recollection of the events or of attending a party with Dr. Ford. There's no corroborating evidence from anyone who was allegedly present at the party. My calendar shows that it is unlikely that I was in DC when the party could have taken place. It is inconsistent all of my behavior in 25 years of public life. I bear Dr. Ford no ill will; she may have been assaulted by someone, and the experience must have been a horrific one, and she has my deepest sympathies - but I had nothing to do with it."

What good did it do for him to bring in all the other stuff - the left wing conspiracy, the revenge of the Clintons, and all of that?

I get it - he's pissed off. And maybe he's got a very good reason for being pissed off. And maybe all that venting made him feel good, in a road-rage kind of way.

But he's a judge, for God's sake, and he's trying to secure appointment to the most select group of judges we have. Judges (at least the good ones) control themselves when they are pissed off at people - pissed off at the parties, or at the lawyers representing the parties. They know - the good ones - that they are not supposed to let their private emotions bubble over into their public acts. If he cannot control himself in this setting, why would we think he can control himself on the bench? How is he going to rule in a case involving parties - the ACLU, say, or Planned Parenthood - that are part of the left wing conspiracy against him?

He could have elevated the discussion; instead, he made it a circus. He could have kept all of that anger and rage to himself, for the sake of the process and for the sake of the institution he's trying to join.

But he didn't. And now that he's done it, he has virtually insured that a Supreme Court with a Justice Kavanaugh sitting on it will be mired in the kind of horrible, destructive, and poisonous partisanship that that is wrecking the other branches of the federal government. It's a ghastly prospect. It will set in concrete, for a generation, the already-worrisome politicization of the Court and of everything it does. Anyone who cares about the legitimacy of the Court and about the Court's role as custodian of the Rule of Law, should be deeply concerned about the prospect. Starting with Chief Justice Roberts, who does, I believe, care deeply about the legacy of the Roberts Court and who has, I hope, communicated his views on the damage that Kavanaugh's appointment would wreak on the institution in his care to the appropriate Senators in charge of this process.

And notice: this is all assuming Kavanaugh's telling the truth about the events of 1982.

He has to withdraw, or be withdrawn - not because of something he did or did not do 36 years ago, but because his presence on the Court would, because of what he did and what he said last week, do terrible harm to one of the few institutions we have left that has avoided succumbing completely to the poison of partisan politics.

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  • KevinP||

    LOL.

  • KHP54||

    Yep.

  • Armchair Lawyer||

    Aye

  • DouglasA||

    Must consider "I am Spartacus" not part of the circus.

  • Macy's Window||

    I'd laugh at this inane piece too, if the stakes weren't so serious.

    Everything was nice and dignified until the accused witch started loudly denying he was a witch? Great logic.

  • Bedonkedonk||

    So much of this reminds me of the witch scene in Monty Python.

    "She turned me into a NEWT!....I got better."

  • KevinP||

    I guess the sexual assault allegations are losing traction as more and more people realize that they have no corroboration or supporting evidence whatsoever. So now the goalposts are being moved to youthful drinking and being upset about being smeared as a gang rapist.

    David: if someone were to accuse you of being a pedophile and smear this wildly across the media without any corroboration, I guess you would retain your calm and clear demeanor?

  • M.L.||

    Maybe someone should accuse him of being a pedophile gang rapist, so we can find out.

  • VinniUSMC||

    Wait, David Post didn't rape you you as a child? I thought we were all visited by David Post as children.

  • Stephen Lathrop||

    He would be a fool not to. And apparently he understands that.

    Indeed, the notion that a senior judge in the federal system should respond to a false accusation the way joe-average would respond, is a kind of stupidity which Post just explained, and which you apparently can't understand.

  • Macy's Window||

    Actually, it is much more serious for charges to be engineered against a senior judge for political reasons than for false charges to be randomly filed by mistake against Joe Sixpack.

    Vastly more serious for the country. Vastly more indicative of the corrupt nature of the political system.

  • TwelveInchPianist||

    " and which you apparently can't understand."

    What I can't understand is how anybody could claim that the "I AM SPARTICUS" hearings were "one of the Senate's finer moments in many years".

  • J555||

    "...one of the few institutions we have left that has avoided succumbing completely to the poison of partisan politics."

    How big a moron do you have to be to write that sentence? Ginsberg repeatedly trashed the Republican candidate for President of the United States while he was running for office. And the liberals on the court reliably act solely on the basis of "partisan politics'.

  • Rev. Arthur L. Kirkland||

    The liberals reliably act solely on the basis of "partisan politics.'

    The conservatives reliably focus on diffuse intolerance and fiction-laced backwardness.

    Where is the hope for America?

  • ||

    The 5 liberals ruled that a gay man has a right to insert his penis into another man's butt. I don't recall any decisions like that coming from the 4 conservatives.

  • JoeB1||

    Well, if the other man happens to be consenting, I'm not sure why all you lovers of liberty are so keen to let the government penalize them both.

  • ||

    Firstly, conservatives believe in ordered liberty, not unfettered liberty. Secondly, one can believe that the government should not be penalizing this while also thinking that the Constitution doesn't protect it.

  • James Pollock||

    "Firstly, conservatives believe in ordered liberty, not unfettered liberty"

    If the consenting adults are consenting adults, their light bondage play is none of your business, despite your rather extreme degree of curiosity on the subject.

  • Brett Bellmore||

    I have noticed that most people who start talking about "ordered liberty" place much more emphasis on the "ordered" part, than the "liberty" part.

    A libertarian, (The sort who actually is into the intellectual underpinnings of the philosophy, mind you.) would normally distinguish between negative and positive rights. The former merely obligate other people to not actively obstruct you, the latter can involve compelling other people to assist.

    While I see no genuine constitutional basis for Obergefell or Lawrence v. Texas (From an originalist standpoint the former is a bad joke.), if they were restricted to just letting any two people get together and call themselves "married", or screw in the manner they please, they wouldn't be troublesome from a libertarian standpoint. The problem from a libertarian standpoint is that we have profoundly anti-libertarian civil "rights" laws, and any time you expand the "protected classes", you diminish everybody's liberty, because those laws rather conspicuously don't respect the negative/positive liberty distinction, they are now routinely used to compel action.

    So, yeah, if it were a matter of consenting adults, rather than "bake the cake, or else", that would be the libertarian stance, though not honestly constitutionally dictated.

  • ||

    I agree with this.

  • James Pollock||

    "I agree with this."

    Which part? The part that you have a rather voyeuristic interest in the sex that other people are having?

  • ||

    No. Brett's post.

  • Macy's Window||

    And Obama invited SCOTUS to the State of the Union and proceeded to lambaste his captive audience politically.

    The Left made SCOTUS political decades ago.

  • James Pollock||

    "The Left made SCOTUS political decades ago."

    The left? A reasonable analysis might be that the politization of the Court began with the nomination of Judge Bork. Who made that nomination?

    The current wave of politization began with the (publicly-stated) attempt to select only judges who would overturn Roe v. Wade.

  • Brett Bellmore||

    " A reasonable analysis might be that the politicization of the Court began with the nomination of Judge Bork."

    Anybody who thinks that reasonable is themselves unreasonable. At an absolute minimum, it began with FDR's appointments, explicitly intended to free the administration from long standing constitutional limitations. In a more general sense, it goes back to the founding era.

  • James Pollock||

    "Anybody who thinks that reasonable is themselves unreasonable"

    Anyone who finds it unreasonable is themself unreasonable.

  • James Pollock||

    " Ginsberg repeatedly trashed the Republican candidate for President of the United States while he was running for office."

    One thing that lots of partisans of both stripes agreed on in 2015 was that DJT was unsuited to the Presidency.

    Then Republicans decided to prove it in 2016.

  • J555||

    Good grief, I just came across this piece of information.

    " ..Post served as law clerk to Ruth Bader Ginsburg twice ..."

    So the law clerk for the Supreme Court Justice who spent 2016 engaging in partisan politics and campaigning against Trump has the audacity to write a piece asserting that the current Supreme Court is above partisan politics and would be contaminated by the presence of Kavanaugh?

  • Macy's Window||

    Holy crap. Even I would not have guessed that amazing hypocrisy on display.

  • TwelveInchPianist||

    And Ginsberg has a much different view of the hearings, prior to Ford, than Post does. But she's a lot smarter than him.

  • Al S||

    This has to be the most predictable blogpost in the history of the VC.

    I think that all VC readers fully understand that if Kavanaugh DID in fact take the "high road", if he DID just "ma[k]e his case, on the merits, without the fire-breathing and the invective and the anger", Professor Post would have written a blogpost stating, in effect, OF COURSE Kavanaugh is guilty because if he was innocent he would have showed "righteous indignation" in the course of the hearing. Only a guilty person would testify without normal emotion that any innocent person must feel.

    Indeed, it would not surprise me if Professor Post had pre-written two blogposts based on the possible ways that Kavanaugh could have approached the Catch 22, and just actually posted whichever one applied.

    But the good news, from Kavanaugh's perspective, is that it is pretty clear that nobody actually believes Ford anymore, which is why we are now getting a multitude of commentary about his supposed "lies" about the wording in his highschool yearbook, and his temperment.

  • Rigelsen||

    Yes, it was intended as a basic Kafka-trap. A charge with no corroborating evidence, but still taken seriously. Don't defend yourself rigorously enough and it must be because you're guilty and have something to hide. Defend yourself too rigorously and you are a partisan for calling the witch hunters to account. "But he should have just accepted his loss and bowed out." Which they would never do if it were they whose lives and livelihoods were being destroyed.

  • M.L.||

    Diane Feinstein should be censured, at a minimum. This is really an outrageous new low - who could have thought it possible?

  • Sarcastr0||

    First, of course, you have no proof. She's too slick for that.

    But more importantly, do you really think timing games is an outrageous new low? I have some stories about Lyndon Johnson you should hear...

  • NotAnotherSkippy||

    First, of course, you have no proof.

    That sounds oddly familiar...

  • Sarcastr0||

    Go ahead and try and censure her for something you just think is true. See how that plays.

  • Brett Bellmore||

    Actually, Sarcastro, we don't just think she had the letter and sat on it. We know that.

  • Sarcastr0||

    Sure, but she's set it up (and IMO it is a set up) so that the leak is of unknown provenance.

    So censoring her for holding onto the document at Ford's request wouldn't be a political move. Legal, perhaps, but not really a good idea.

  • James Pollock||

    " not really a good idea."

    Since when does this hold anyone in Washington back?

  • FlameCCT||

    Really? She only had a Chinese spy driving her around for decades; not to mention she sat on the letter for weeks and weeks.

  • Sarcastr0||

    I was interested in this tidbit, and so I Googled.

    Five years ago the FBI informed me it had concerns that an administrative member of my California staff was potentially being sought out by the Chinese government to provide information. He was not a mole or a spy, but someone who a foreign intelligence service thought it could recruit.

    There's spin, and then there's this.

  • ||

    It's too bad Feinstein's ancestors weren't killed in pogroms in the 1800s. It would have spared us her leftist treason today.

  • Macy's Window||

    Screw you, Moby.

  • Smooth Like a Rhapsody||

    I really fail to see the point of remarks like this.
    Don't bring pogroms into a political discussion. That's sick.

  • James Pollock||

    "I really fail to see the point of remarks like this."

    It's what people do when they really sting from a comment, but they don't have any real answer.

  • RickC||

    "He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that." And "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president." (Ruth Ginsburg's public comments on presidential candidate Donald Trump). https://www.cnn.com/2016/07

  • J555||

    And the icing on the hypocrisy cake is that David Post was a law clerk for that very same Ruth Ginsberg.

  • Ryan Frank||

    Posts at Reason have been pretty aggressively stupid over this whole thing, but this may take the cake.

  • J555||

    They're not stupid. They're full of partisan bias. In other words, they are trying to accuse Kavanaugh of being too much like they are.

    Accuse your opponents of that which you are guilty of.

  • Ryan Frank||

    Embrace the power of "AND"

    It's quite possible to have partisan bias and still make an intelligent argument in favor of what you believe. Almost everyone is biased in one way or another. Complaining that someone got mad after being called a rapist is just stupid.

  • M.L.||

    Correct. Partisan analysis, advocacy and/or propaganda is de rigueur everywhere.

    Sheer stupidity on top of that is . . . well, it's what David Post does.

  • mthullen||

    So Post is now endorsing confirmation by ordeal. From Wikipedia:

    "Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. The test was one of life or death, and the proof of innocence was survival. In some cases, the accused was considered innocent if they escaped injury or if their injuries healed."

    It's sad that in their lust for power and hate for their political opponents, lawyers like Post have reverted to middle ages for their moral and judicial guidance. Accusing someone of a terrible act without any objective evidence, and then seeing how they react, shouldn't be how we confirm people to high office. I'm sure Post would agree--but only for Democratic candidates.

  • Martinned||

    Here is Benjamin Wittes commenting along the same lines:

    Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.

  • Martinned||

    This is useful because this is someone speaking from personal knowledge:

    The Brett Kavanaugh who showed up to Thursday's hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation (...). I dealt with him when he was in the White House counsel's office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

  • KHP54||

    I thought my contempt for Wittes was at its maximum, but it turns out I was wrong.

  • Bob from Ohio||

    "It seemed like a different person altogether."

    How often had Wittes seen him after multiple unsupported sexual assault allegations?

    How often had Wittes seen him after Democrat senators accused him of being a liar and a drunk?

    Amazing how Democrats like Post and Wittes are shocked, shocked I say, by this display of emotion. Well, not actually amazing. Pathetic, yes that is the word.

  • Martinned||

    I don't know about prof. Post, but if you think Benjamin Wittes is a Democrat you're even more confused than I thought.

  • ButWhatDoIKnow||

    Wittes doesn't need to "be" a Democrat to be a rat. He's a long time friend of James Comey, was the middle man in leaking Comey's memos to the Times, and is vehemently anti-Trump. What political label he may or may not claim is irrelevant given his past actions and writings.

  • Macy's Window||

    And if you think that he is genuinely Republican or neutral, you are tremendously confused.

  • Bob from Ohio||

    "if you think Benjamin Wittes is a Democrat"

    He is an ex-reporter and works at Brookings. Those are Dem markers though I admit there are exceptions.

    There is no obvious GOP connection in either his Brookings bio or at Wikipedia.

  • FlameCCT||

    IOW Wittes is another Progressive Plantation (Marxist Utopia) flunky!

  • Chili Dogg||

    Blame the victim. Good job.

  • Rigelsen||

    Post has always been an avowed leftist, a proud propagandist for whatever goes as long as the side he supports wins.

    Nothing wrong with leftists per se, they too have something to contribute to public debate. However, a modicum of intellectual honesty and critical thought is required. I just wish Post showed some capacity for either.

  • Rev. Arthur L. Kirkland||

    If Post is an avowed leftist, that puts him several steps ahead of the movement conservative Conspirators who routinely masquerade in unconvincing libertarian drag.

  • Hank Ferrous||

    I see you continue to exemplify the zenith of ignorance & stupidity while insisting that education equals intelligence, pathetic dotard. Don't change, people who 'know everything' about those things about which they know nothing are greatly entertaining for the rest of us. Cling to your conflations & biases Arty.

  • Rev. Arthur L. Kirkland||

    Why so cranky, Hank? Losing the culture war got you down?

  • Here for the outrage||

    The left loves their academic high tower...

    http://reason.com/blog/2018/10.....se-lindsay

    Rev. is in for a rough 6 years

  • Sarcastr0||

    That's a great story. I hope the VC posts on it, because it is a legit place to reform from.

    But peer review failing doesn't have a lot to do with Trump.

    Love your handle!

  • M.L.||

    He was tooo angwy!

    Thanks Post for adding your funny act to the circus.

    What I am reading from mainstream media, academics and other unhinged leftists is really quite shocking. The hatred for Kavanaugh now seems to be zeroing in on the fact that he is a white male, boiling down to a purely racist and sexist viewpoint.

    An associate professor at Georgetown tweeted:

    Look at thus chorus of entitled white men justifying a serial rapist's arrogated entitlement.
    All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes. https://t.co/tT7Igu157y

    — (((Christine Fair))) (@CChristineFair) September 29, 2018

  • James Pollock||

    But what about all the people who WANT their Supreme Court justices to whine about left-wing conspiracies against them?

  • Krayt||

    If it's good enough for Trump (Deep State) and Hillary (Vast Right-Wing Conspiracy) it's good enough for a justice!

  • Macy's Window||

    By "whine about left-wing conspiracies" you actually mean" point out political attacks that were engineered by teh left-wing?"

    Or are you going to claim that Ford isn't a leftist donor and her lawyers weren't picked by Feinstein's office?

    It was terribly bad luck for Kavanaugh that every one of the women he chose to attack as a teen grew up to be left-wing activists. Terrible luck.

  • James Pollock||

    "It was terribly bad luck for Kavanaugh that every one of the women he chose to attack as a teen grew up to be left-wing activists. Terrible luck."

    I'm pretty sure the right-wingers he chose to attack as a teenager were told to hush up to protect their nominee, and complied. No, no facts to support it. Why would I need those?

  • FlameCCT||

    Progressives don't need not stinking facts!

    Now run along Jimmy, back to your safe space on the Progressive Plantation like a good, little, serf!

  • James Pollock||

    Ah, you think you're funny!

  • Bob from Ohio||

    "How is he going to rule in a case involving parties - the ACLU, say, or Planned Parenthood - that are part of the left wing conspiracy against him?"

    IDK, how does Ginsburg rule in cases involving Donald Trump?

    "He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

    "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president," she had said in the Times interview published Monday."

    "At first I thought it was funny," she said of Trump's early candidacy. "To think that there's a possibility that he could be president ... "

  • M.L.||

    Perhaps RBG should be impeached and removed, based on Post's standard. But Kavanaugh can still be confirmed, at least he didn't attack specific parties sure to come before the court.

  • James Pollock||

    "Perhaps RBG should be impeached and removed"

    Well, the Constitutional bar is for removal is set pretty high, but I'm sure you can get the President's support for an argument that saying mean but largely accurate things about the President is a "high crime". He wanted to "take a look at" federal defamation law, after all.

  • WillDD||

    Post clerked for RBG. Perhaps lying by omission doesn't constitute perjury, but it still constitutes lying by omission.

  • Bob from Ohio||

    ""This is a circus. "

    Yes, and now a clown has posted his thoughts.

  • Nathan S||

    This is a load of garbage. First of all, the confirmation hearings were a joke, but it wasn't the hearings that was the circus, it was the conniving democrat attacks led and directed by the members of that committee. He was not wrong about a thing he said.

  • Beldar||

    This is the kind of opinion I'd expect to read somewhere like Vox or Huffpo.

    May you never be falsely accused of anything, Mr. Post. May you never have to explain false accusations to your young teen daughters. May you continue blithely sailing through life, with your subjective judgments on other people's emotions undisturbed.

    Name one time that while acting as a judge, Kavanaugh has displayed an injudicious temperament. Or, in fairness, admit that you can't.

  • Martinned||

    That's not really the point, though, is it? The point of confirmation hearings is to anticipate how the nominee will act if confirmed. And, let's face it, this doesn't look good.

    If you can't take the heat, stay out of the kitchen. If you want to dabble in Clinton conspiracy theories, don't accept a nomination for a (federal) judgeship.

  • Michael W. Towns||

    In your opinion, then, being accused of being an alcoholic gang rapist is just "taking the heat."

  • Beldar||

    Do you expect that if confirmed, Justice Kavanaugh would often be cross-examined, as a witness, about vile and uncorroborated personal attacks?

    Your standard would subject every judicial nominee to false accusations and unjustifiable ridicule. It's an argument for character assassination. I reject it.

  • Macy's Window||

    ^this.

  • James Pollock||

    "Do you expect that if confirmed, Justice Kavanaugh would often be cross-examined, as a witness, about vile and uncorroborated personal attacks?"

    I'd expect around 50% of the parties that appear before him would have mean things to say about him after the judgment is rendered.

  • Brett Bellmore||

    So, why would we care if he became biased against them *after* rendering judgment? Too late then for the bias to matter...

    No, seriously, I have not noticed a tendency of losing plaintiffs or defendants before the Supreme court to accuse the majority Justices of being pedophiles or rapists. I suppose Democrats might adopt this as a routine practice going forward, though.

  • James Pollock||

    "So, why would we care if he became biased against them *after* rendering judgment? Too late then for the bias to matter..."

    It turns out that some people have been party to more than one lawsuit, and sometimes even the SAME lawsuit makes multiple visits to the USSC.

  • James Pollock||

    "May you never have to explain false accusations to your young teen daughters."

    Explaining false accusations is easy. It's explaining the true ones that takes time and effort.

  • Armchair Lawyer||

    Let's address judicial temperament shall we? And ignore years of temperament on the bench.

    ""He is a faker," "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

    ""People ask me sometimes, when — when do you think it will it be enough?" "When will there be enough women on the court? And my answer is when there are nine."

    " "I also wanted them to see I was alive and well, contrary to that [GOP] senator who said I'd be dead within nine months,"

    "I can't imagine what this place would be — I can't imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don't even want to contemplate that"

    "Now it's time for us to move to New Zealand [in regards to Trump's election]"

    This is all... Justice Ginsberg. While she's on the bench....and all that is entirely without people calling her "evil" or accusing her of crimes.

    How can she claim to be neutral in decisions regarding Trump? Or other items? Does she have the right "temperament"? Perhaps she should be subjected to weeks of public accusations, with poorly sourced material? Perhaps she should be impeached now? If we want to be consistent about "temperament".

  • Stephen Lathrop||

    Those are fair comments regarding Ginsberg. And plenty of people on the left criticized her for those. You would think of me as a leftist, and I wrote against that stuff in comments on this blog. In other comments, condemning the politicization of the Supreme Court generally, I have suggested they all be impeached together—and meant it.

    You have a choice. Having taken the initiative to call out Ginsberg for serious judicial misconduct, you can either do the same with regard to Kavanaugh, or you can continue to do what you appear to be doing—using Ginsberg's example to excuse Kavanaugh. I expect you to continue as a tribalist, and do the latter. Why don't you surprise me, and justify yourself?

  • Armchair Lawyer||

    That's a fair job of careful phrasing. But let's break it down.

    "Plenty on the left criticized her for those"
    And yet, how many of those called for her specific resignation over these comments? I bet I can count on one hand. Or let's go a level lower. How many demanded her recusal on the travel ban case? Well, that was just "too important" I suppose for her recusal.

    "In other comments I have suggested they all be impeached together"
    Why all together? Why not just those who have made grossly inappropropriate comments? IE Ginsberg. Perhaps, because it would alter that balance? It's nice to call for something that won't happen.

    "You have a choice"
    I do, but it's not the choice you expect. Ginsberg example is WORSE than Kavinaugh's. Much more so. It's the difference between malicious assault and self defense. You see, Ginsberg's comments were under neutral, if best, conditions. A friendly interview.

    Kavinaugh's comments, by contrast, were after literal weeks of abuse, accusations, lies, interrogation, and more. One would expect an innocent man to defend himself from those who repeatedly call him a serial rapist liar drunk, with only the most limited evidence. If anyone was a judge, and some lawyer called them these slurs in their courtroom, they'd be thrown out so fast, your head would spin.

    But, don't trust me? Go up to Ginsberg, and call her a nasty slur or 15. Stay in her face. And see what happens to her judicial temperament.

  • jslinner||

    She's already on the court. She would not be on the court if she made those comments prior to being confirmed. Don't even bother trying to lie about that.

  • James Pollock||

    Lifetime appointment. Some might suggest that's why care in nomination and confirmation is warranted.

  • Armchair Lawyer||

    She is on the court. Perhaps given her temperament, she shouldn't be. One would think that making those comments while on the court, and not subject to an inquisition, speaks more to her temperament

  • dwshelf||

    The degree of judgment Post passes on another human being here, that demeanor in intense difficulty is judged disqualifying in life, is beyond comprehension.

    Really, there's no other reason Post doesn't like Kavanaugh?

  • James Pollock||

    You're surprised that someone might find the vast majority of individuals unsuited to being one of the nine Supreme Court justices surprising?

    People who are on the Supreme Court can reliably expect to have people say mean things about them, some of them quite awful. How should an ideal candidate respond? If your answer is "by becoming emotional", then Kavanaugh is your guy.

  • dwshelf||

    The circus was introduced when a woman laid out unverifiable claims of sexual misconduct.

  • James Pollock||

    Meh. There's a creditable argument that the descent began with a decision to select a candidate unacceptable to the opposition party.

  • Here for the outrage||

    unacceptable to the opposition party

    He voted with Garland 95% of the time. Your inability to take off your partisan hat is childish... maybe one day you'll grow up, but then who will entertain the nonpartisans?

    Maybe check out huffpo? They still think Trump is Hitler too

  • James Pollock||

    "He voted with Garland 95% of the time"

    Garland voted with Garland 100% of the time, and he didn't get elevated, either.

    " Your inability to take off your partisan hat is childish"

    (Hint: I am not registered as a member of any political party.) I suspect that YOUR partisan bias limits your vision.

    Trump isn't Hitler. Hitler was smarter. Trump is king of the twits, because anyone who is NOT a twit can see right through his prodigious output of BS.

  • WJack||

    One wonders where people like Post get their ideas. A guess is there are more victims of progressive educators than would seem possible.

  • Smooth Like a Rhapsody||

    Next we will hear that Kav should be rejected because he chewed out a ref at his daughter's basketball game.
    The libs never seem to run out of ways to put their butthurt on public display.

  • Macy's Window||

    Don't give them ideas. Every left-wing referee in the league will file a complaint.

  • Ellis Wyatt||

    Kavanaugh committed perjury several times, repeating two lies..

    1) He claims the drinking age was 18, so his drinking was legal. A lie. The drinking age in Maryland changed to 21, before he became a senior, and he was not 18 as a junior. Associated Press

    2) He also lied that the other four people at the party have "denied" the events. HE is the only one denying it. The others all said they could not remember it, BIG difference. Only one other student was in the room, Mark Judge, and even he did not deny it happened, only that he could not recall it. AP Fact Check

    Most notable to me, Kavanaugh twice REFUSED to answer if he was the out of control drunk depicted in Mark Judges book as "Bart O'Kavanaugh." (wink wink) Is that because he was under oath? (lol)

    Check my sources. If recent history on this topic is a guide, this will now be followed by the typical raging hatred and personal attacks by Trump's loyal cyber-bullies NEVER any SUPPORTED challenge to the known facts.

    Because: Left - Right = Zero
    Both authoritarian, less than 40% of Americans, and still shrinking..

  • eyesay||

    He also lied when he responded to Sen. Harris' question if he had heard Ford's testimony. He said he hadn't. The Wall Street Journal reported that an aide watched Kavanaugh watch Ford's testimony on a monitor in an office in the Dirksen Senate Office Building.

  • Sarcastr0||

    I came for an argument.

    This is abuse!

  • Ellis Wyatt||

    The very best summary I've seen (and this political junky reads a lot) I personally find his blatant lies more troubling. And his REFUSAL to answer critical questions, while attacking the questioners Would be allow such shit in his own courtroom???.

    BIG demand that Kavanaugh be withdrawn.

    By a leading Jesuit publication, America Magazine. (Kavanaugh's high school was Jesuit)
    Add that to the Dean of the prestigious Yale Law School, Kavanaugh's alma mater, who called for an investigation.

    The list is growing of dishonest answers from Kavanaugh on Thursday, now expanded to include diversions, evasions and refusals to key question. Personally, his refusal to deny that he is the total drunk in Mark Judge;s book, a classmate named "Bart O'Kavanaugh" He claims innocence everywhere EXCEPT this published incident. With all his other claims that he was never a heavy drinker, why would he refuse to say it was not him who puked into a car and passed out?

    It's reasonable to assume he was avoiding perjury. He refused twice. For the first, he set his jaw and went defiantly silent. New "witnesses" are popping up on his heavy drinking, including an ex-girlfriend of Mark Judge.

    Kavanaugh just withdrew from teaching his course at Yale Law School, when his removal was called for in petitions signs by over 800 Yale alumni,

  • NotAnotherSkippy||

    Smell the desperation. 100 (1-hihn-hihn) percent.

  • Ellis Wyatt||

    Documented proof is "desperation" to Sklippy, when it exposes bullshit. (sneer)

    Left - Right - Zero
    (my equation, a libertarian meme for a half century, is NOT illiterate!)

  • Barry soetaro||

    You were right to put quotation marks around "witnesses" who witnessed nothing.

  • TwelveInchPianist||

    Good lord. Not another "how dare he defend himself" take.

  • TwelveInchPianist||

    And "But here's the thing: the hearings were not a circus - at least, not until Judge Kavanaugh took the stand."

    I..I.. I just don't know what to say. How could anyone possibly type this sentence without being struck by lightning?

    I guess it's same to assume Post didn't watch any of the hearings?

  • Sarcastr0||

    I watched the hearings, and don't think well of Kav's performance. It was not righeous, it was entitled.

    Yeah, subjective.
    Which neither you nor Post allow as a possibility?

  • TwelveInchPianist||

    "It was not righeous, it was entitled."

    If the charges are true, he is disqualified for that reason. But if the charges are false, then he was acting entitled, sure. He was acting as if he were entitled not to be falsely accused of rape. And I know you're a feminist, Sarcastro, but those of us who aren't still believe that men are indeed entitled not to be falsely accused of rape.

    But the worst part of Post's comment was the claim that the hearings prior to Kav's testimony were not a circus, and were one of the Senate's finest moments. As I said, he must not have watched the rest of the hearings. No one who could type such a sentence should ever be taken seriously again.

  • Lasciata||

    So now this blog will publish anything, no matter how inane? Assuming so, how do I block this idiot in the future?

  • eyesay||

    Thank you, David Post. Your analysis is spot on!

  • JuliaMottram||

    David needs to read Eugene's post. It's the difference between an adult and a child.

  • VinniUSMC||

    "But here's the thing: the hearings were not a circus - at least, not until Judge Kavanaugh took the stand".

    I guess that depends on what your definition of "circus" is.

  • TwelveInchPianist||

    "I guess that depends on what your definition of "circus" is."

    Well, in fairness to Post, technically Sparticus was a gladiator, not a circus performer.

  • Barry soetaro||

    It was a circus when Stolen Valor Blumenthal got on stage.

  • laurapetrie||

    "If he cannot control himself in this setting, why would we think he can control himself on the bench?"

    I don't know, maybe because he has for the past dozen years. It's not as if we have no other basis on which to evaluate BK's judicial temperament.

  • MonitorsMost||

    Strongly disagree that the hearings were not a circus prior to Judge Kavanaugh's testimony. Agree that it was unbecoming to make partisan attacks in his statements. Yes, the hearings are a nakedly partisan affair. But you're the judge. You sit in front of people every day who are making nakedly partisan statements or arguments on behalf of their clients. Just because one side is making them against you and the other side is making them for you doesn't mean you should jump into the fray. I understand why he is angry and thinks the things he said, but you're the judge.

  • Onslow||

    You see worse on a daily basis at the trial level. You see it occasionally at the appellate. You saw it on the Supreme Court with Breyer when Cruz sucked the life out Breyer's arguments during Medellin v. Texas OA's. "You're the judge" arguments are dumb. Post's article is absurd, partisan, and short-sighted.

  • WJack||

    Post's views, and those of Somin, appear to be driven by their perception of Kavanaugh as a threat to globalism; otherwise they both seem clueless.

  • MonitorsMost||

    Let's just gloss over the logical leap it took for you to conclude that animus is the basis for Post and Somin's discontent with Kavanaugh's performance at the hearings. Why do you think anyone would perceive Kavanaugh as a threat to globalism? I consider myself a globalist on many issues and I don't see Kavanaugh as a threat to globalism in any way, shape or form.

  • Tall Paul||

    Far too many academics are more concerned about how well they will be received in the faculty lounge than they are about standing up for the truth. They will grasp for nearly any pretext to come up with an excuse for joining the mob. That's one of the many reasons that academics are regarded with disgust by a ever-growing number of Americans.

  • swood1000||

    Anyone who cares about the legitimacy of the Court and about the Court's role as custodian of the Rule of Law, should be deeply concerned about the prospect.

    Roe v Wade is what raised the question of the legitimacy of the Court. It was a political act clothed in judicial garb. But for that, we would not have the current acrimony concerning Supreme Court nominations. But people didn't give up the struggle just because the locus changed from the ballot box to the courthouse. Everybody recognizes that if judges are entitled to impose their personal value judgements on the country, those values not being actually found in the Constitution, it is a charade to act during judicial confirmation that something else is going on. Kavanaugh is being opposed for political reasons, as he should be if the Court is engaged in the political process, which it is.

  • James Pollock||

    "Roe v Wade is what raised the question of the legitimacy of the Court. It was a political act clothed in judicial garb."

    I'm going to suggest that you Google "Lochner Era".

  • swood1000||

    I'm going to suggest that you Google "Lochner Era".

    You're right. Lochner raised the same issue that was raised in Roe, that under substantive due process the term 'liberty' protects rights not actually found in the Constitution. In Lochner it was liberty of contract. In Roe it was liberty to abort. As John Hart Ely put it,

    It may be … that the "right to an abortion," or noneconomic rights generally, accord more closely with "this generation's idealization of America" than the "rights" asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those "rights" that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them.

    Justice Holmes discussed the error in the opinion overruling Lochner:

    "I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain."

    The same error was then reinstated in Roe.

  • MonitorsMost||

    Somehow I doubt James Pollock is a William Reinquist fan, but Reinquist is the premier example of a Justice who consistently ruled against all unenumerated rights and interpreted due process narrowly. Or, slightly more likely, he could be a Hugo Black fan who was an enumerated rights absolutist but didn't believe in unenumerated rights.

  • MonitorsMost||

    Many of the stalwarts of the Warren Court were appointed by FDR to end Lochner rulings only to turn around and reimplement the same substantive due process jurisprudence in Griswold, etc. (although Douglas was the only one remaining by the time Roe vs Wade was decided).

    There is a very entertaining footnote in Douglas' concurrence in Doe v. Bolton claiming Griswold and its successors can't be substantive due process cases because Douglas doesn't believe in substantive due process, so it must be called something else.

  • Barry soetaro||

    He is an originalist, so possibly so. He may well oppose the SCOTUS hearing cases that should be returned to lower courts.
    Roe v Wade was actually something that should have remained in the several States. Some Southern states had already legalized abortions, but when the SCOTUS grabbed it and pretended to find yet another penumbra allowing them to impose it upon all the States, it locked in a solid opposition that would not exist otherwise.
    In short, it was a bad decision because of process.

  • JoeGoins||

    >"The first portion of the event had real dignity to it; I would rate it one of the Senate's finer moments in many years (a low bar, but still ...)."
    Spartacus.

  • Barry soetaro||

    Those hearings were a bad joke from the start with paid screamers in the gallery, a possibly recompensed series of accusations with zero proof and the orchestrated idiot-outrage by the Left.
    Not a good look, but I suppose you have to go with what ya got.
    Who knows what the fbi found? I don't, and you don't, but I think the next time you're arrested by the police for some reason you might want a presumption of innocence.
    And stop with the silly "this is not a court, it's a job interview" nonsense. If you had this sort of job interview I'd bet you'd sue the crap out of the bigoted jackass that put you through it.
    Ford is either a mentally damaged woman, or a liar. As more and more background comes in, I'm beginning to trend toward the latter but I still hold my options open.
    What I DON'T hold open is some sense of basic human fairness.

  • eyesay||

    Barry, kindly provide links to reliable sources supporting your theories:
    • that anyone was paid to disrupt the Kavanaugh hearings.
    • that Dr. Blasey was compensated for writing her letter to her member of Congress that accused teen-aged Brett Kavanaugh of assaulting her.
    • that people who believe Dr. Blasey have that belief because of "orchestrated idiot-outrage" and not because they simply find her story credible. Identify the parties orchestrating that outrage.*
    • that any member of the Senate Judiciary Committee is bigoted.
    • that allowing a hearing lasting just a few hours in which members of the Judiciary Committee asked questions of Dr. Blasey and then of Mr. Kavanaugh is inherently bigoted, biased, and unfair to the accused.
    • that when members of the public come forward with accusations about a nominee, the Judiciary Committee and the U.S. Senate should base their approve/don't approve decision using the same standards as a criminal trial, rather than regarding the process as analogous in many ways to interviewing candidates for employment.
    • that Dr. Blasey could not possibly have been telling the truth about what happened.

    *I believe Dr. Blasey; I am not an idiot, and I believe her on my own, not because anyone orchestrated my belief.

  • ||

    Your points are NOT "Barry's theories".

    Whether I agree with his remarks, you have mis-characterized them.

    I am less sure what I believe today. But prior to the revalations about McClean, I beleived that Ford beleived what she was saying. That is not the same as beleiving it was true.

    The standard for confirmation is NOT quilty beyond a reasonable doubt.
    It is also not any accusation will do.
    Nor is it any accusation so old it can not be confirmed or refuted will do.

    I think it is quite reasonable to conclude that an accusation in which no relevant fact asserted can be confirmed, in which no date or place can be established, in which there are purportedly witnesses all of whom deny the event - that such an accusation is not sufficient.
    That doesn't make the accusation false. It is unlikely we can know that.

    But your belief or mine is not sufficient.
    Further I can believe both Ford and Kavanaugh.

    You may not be an idiot, but if you beleive that a non-falsifiable accusation without any corroboration is sufficient - we will never approve any nomination for anything ever again.

  • Goju||

    New twist on Kavanaugh withdrawing. Now the theory is that the hearings were so traumatic that the effects of the trauma render Kav unfit to sit on the Bench. The dems are afraid he will be biased against their interests.

  • MonitorsMost||

    I made this point a while ago. Assuming Kavanaugh gets confirmed (and assuming he subjectively believes he is innocent), all this does is embitter him towards the Democrats a la Clarence Thomas.

  • WJack||

    For the good of America, let us hope so.

  • ||

    My judgement of Kavanaugh's innocence is subjective.
    I was not there (if there even was a "there")

    Kavanaugh's judgement on his own innocence is NOT subjective - it might be WRONG.

    Barring failures of recollection - which is an issue for BOTH Ford and Kavanaugh - with the burden with Ford, there are two people who know what if anything happened - Ford and Kavanaugh.

  • ||

    The expectation of a judge is not that they are outside of court neutral on everything.
    It is that they do not bring personal oppinions and biases into the court and their decisions.

    That is difficult, which is why we should take great care in who we appoint as a judge.

    It is also why the role of judge is to read the law or constitution as written.

  • Goju||

    Post if full of sh---. He cannot present a reasoned counter argument to Kav's nomination so he jumps the shark with this nonsense, He presents nothing but a foregone conclusion in desperate search of a valid underlying argument.

    Btw, Justice Ginsburg has admitted to have had a little too much wine before the SOYU where she fell asleep. Will Post be questioning her fitness to sit on the Court?

  • Slocum||

    But that does not excuse his venting of that rage and righteous indignation at the hearings. He didn't have to do it.

    I'm not convinced that's true. My initial sense of his approach to the hearings was, basically -- If I'm going down and end up not only rejected for the Supreme Court, but also a pariah with my reputation and career destroyed and my kids' future prospects diminished, then F##K it, I'm going down swinging. But the effect was that his passion was galvanizing and it rubbed off on committee Republicans and possibly (if narrowing polls can be believed) Republican voters as well. What was done to him WAS an attempted partisan hit job (with the accusation held out of the hearings and then leaked only at the 11th hour). It was all carefully coordinated -- CBF's legal team, the BS polygraph, the BS fear of flying, the therapist notes that can't be reviewed, the internet scrubbing. It would have done BK no favors to ignore the partisan elephant in the room and to be calm and passive in the face of such an assault. If he'd taken that route, I suspect he'd have already had to withdraw in (apparent) disgrace rather than be on the verge of confirmation.

  • Naaman Brown||

    A growing number of people believe it was not a "partisan elephant in the room" but a cabal of partisan jackasses.

  • DjDiverDan||

    If ever law professors got together to ask the question "What is it that we can do to convince the general public that we are totally, completely, up to our eyebrows full of s#it?", they could not have come up with a better plan than that letter signed by hundreds of law professors regarding the Kavanaugh nomination. And if there is ever any danger that the general public might forget that the vast majority of law professors are totally, completely, up to their eyebrows full of s#it, they can always call on you, Professor Post, to be the public spokesman to remind them.

  • jltwom||

    " ..Post served as law clerk to Ruth Bader Ginsburg twice ..."

    Enough said. What a joke. Why would Reason even publish this?

  • Onslow||

    Feinstein and democrats wanted to see a reaction. They enlisted the aid of their most ardent and radical supporters to engage in defamation per se.

    Not a single democrat question was asked in good faith. They did not care about the truth, only the reaction. They knew the claims were false--indeed, the fantastical stories are creatures of THEIR darkest imaginations--yet they asked the questions anyway. See Counsel for Feinstein questions during call with Kavanaugh. They wanted him to react. Kavanaugh was measured in his reaction. I'd like a Judge with a spine. His reaction showed spine and compassion.

  • WillDD||

    We can't have partisanship, cries the former RBG law clerk, Professor Post.

  • Naaman Brown||

    David Post. "Judge Kavanaugh, Judicial Temperament, and the "Circus"", Reason, 2 Oct 2018.
    "Kavanaugh was correct: it was a circus. But he made it one - and for that (apart from anything that he may or may not have done in 1982) he should not be confirmed."

    A person I follow posted a letter 2 Oct 2018 on Facebook addressed to Feinstein, Booker, and others. He blames the circus atmosphere on the Democrats. He was an independent voter for decades: he voted for candidates not for any particular party. As a protest against the way he saw the Kavanaugh hearing conducted, he plans to vote against Democrat candidates this election. He won't necessarily be voting for Republicans. But he won't vote for a single Democrat this year.

  • Naaman Brown||

    The gist I get out of this opening post is: accused witches deserve to be burned at the stake because of the way they scream when the flames lick at their toes, whether they were guilty of witchcraft or not.

  • J. C. Salomon||

    Kavanaugh did not punch any of the Democrat senators who pretended to give credence to accusations he ran a rape gang—which is what anyone who mentioned "three credible accusations" (or words to that effect) meant. These senators were not even pretending to engage in a real investigation, they glommed on to the most ludicrous Pizzagate-level-crazy conspiracy theory to smear him with—and yet, he refrained from anything beyond pointing out a partisan political smear campaign for being a partisan political smear campaign.

    Just how much more restraint are you looking for?

  • J. C. Salomon||

    Note that I said "pretended to give credence": it would be difficult to convince me that even a Democrat is so credulous as to believe a high-school student can sugessfully run a gang-rape ring without any evidence coming out even three decades later. I also suspect that all Democrat senators who do pretend to take the Julie Swetnick accusation seriously are lying not only about that but about believing Dr Ford as well.

  • ||

    Sorry, but the circus started before Kavanaugh began.

    Nor was the portion involving Ford some demonstration of proper decorum.

    There are many flaws in the process before Kavanaugh spoke, not the least of which was that that questions of fact and process became political.

    Ford made an accusation. The burden of proof - regardless of the standard is her's. Treating her with kid gloves was inappropriate - it was NOT the pursuit of justice. It is unfortunate that accusers who are also victims must endure a punishing examination in order to prevail, but those are the requirement of the rule of law, of due process, of the presumption of innocence.

    Kavanaugh's testimony was not actually necessary. The accusation was insufficient to meet almost any burden of proof. That is unsurprising - it is rarely possible to prove antique events, we have statutes of limitation for good reason. The primary purpose of Kavanaugh's testimony was emotional - our need to here a defendant deny the accusation.

  • Brightly||

    I'm much more in line with Volokh on this.

    I think your like of thinking, Mr Post, indulges this behavior of the Democrats too deeply: keep turning up the slander and the consequences that go along with having one's name smeared until the subject breaks, then...disqualification!!!

    Like I've mentioned elsewhere, this seems a lot like validating a pattern of abuse. I think you are expecting too much from our Judges and too little from our politicians.

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