Because of the carnival atmosphere of Supreme Court confirmation proceedings in recent years, it has been increasingly difficult to evaluate a nominee’s qualifications for a lifetime job on the Court. The Senators on either side like to grandstand with questions they know the nominee either will not or should not answer. The highly-coached nominee gives scripted non-answers to the occasional pertinent question that is highly relevant and should in good conscience be answered.
However, a person can get a sense of the candidate and there are a number of troubling things about Judge Brett Kavanaugh. There are allegations that he was not candid in answering questions under oath during his previous confirmation proceeding for the judgeship he now holds. Rather than rushing this proceeding, there is good reason for the Senate to explore his truthfulness in greater detail.
The Judge is short on moral courage or perhaps has just set it aside in order to get the job. When asked if he agreed with Justice Neil Gorsuch that the President’s criticism of judges and courts was “disheartening” and “demoralizing” to the judiciary, he dodged. Perhaps, he had read the reports that Gorsuch’s comments had almost caused the President to withdraw the Gorsuch nomination.
It is a clear that the continual Write House attacks on judges and the justice system are eroding the rule of law that is the very foundation of this country. Any judge worth his salt should stand up for the system. Gorsuch did and declined to retract his comments.
More concerning, though, is Kavanaugh’s refusal to say he would recuse himself from ruling in a case arising from the on-going investigation of the President. If the person who appointed you is currently under investigation in a case that may well end up before you for decision, there is a serious conflict of interest and recusal should be a no-brainer.
A judge should not sit on a case where his or her impartiality might reasonably be questioned. During my tenure on the Idaho Supreme Court, I did not recuse myself on a case unless there was a real or perceived conflict. Kavanaugh has a real conflict in this situation and should unequivocally commit to recusal.
The Judge has expressed expansive views on the powers of the president and narrow views regarding investigation of a president. His name was only added to the list of potential candidates after the Mueller investigation was launched. And, he has likely witnessed the grief that Attorney General Sessions has suffered for correctly having recused himself in that investigation and heard the President’s comments that he would not have appointed Sessions if he’d known the AG was going to recuse. Kavanaugh’s stance does not pass the smell test for moral courage.
Speaking of moral courage, what happened to what we used to think of as the “greatest deliberative body in the world?” That is what they called the U.S. Senate when I worked there for former Senator Len Jordan in the early 1970s. Senators actually considered the pros and cons of Supreme Court nominees in those days, rather than just voting the old party line.
Senator Jordan, a man of unquestionable integrity, voted against two of his party’s nominees--Clement Haynsworth and Harrold Carswell--because, after carefully studying their records, he determined they were not of Supreme Court caliber. Jordan was joined by 16 Republicans in defeating Haynsworth and by 12 Republicans in turning down Carswell. It did not make President Nixon happy, but Jordan had a good conscience. Wish there were some like him in the Senate today.
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Jim Jones is former Chief Justice of the Idaho Supreme Court and a frequent contributor to the Coeur d’Alene and Post Falls Press.