To be sure, Tocqueville’s tradeoffs are incommensurable—they are tragic in the sense that we cannot have more of both.
It is a rare day I find myself disagreeing with my friend and colleague, Greg Weiner. It is even more unusual that I would take to this space—where he is a contributing editor—to respond to him. But I find his take on the Kavanaugh hearings so out of step with his other judicious writings on politics, that a response is required.
In brief, Greg recommends in a piece for the New York Times that Judge Kavanaugh withdraw his name or that the Senate reject his candidacy in a vote. One way or another, Kavanaugh should not be allowed to become an associate justice of the Supreme Court. The reasoning does not rest on Kavanaugh’s judicial philosophy. Greg acknowledges that another originalist will find his or her (probably her) way to the bench during the Trump presidency. It does not rest on any presumed guilt regarding the alleged sexual assault said to have taken place in 1982. Greg does not claim for himself, as others seem to have done, clairvoyant powers to discern events he did not witness.
His opposition to Kavanaugh comes down entirely to the judge’s temperament as exhibited only and exclusively during the hearings on Thursday. Kavanaugh’s comportment rendered the man unfit for office because it revealed him to be guided by “retribution and distemper.” None of this came out in the earlier hours of testimony or, from what we know, of private meetings and closed-door hearings with senators. Nor is there any evidence of such animus from his time serving as a judge or in any of his previous positions in various roles as a lawyer. The entirety comes from the one afternoon of testimony in regards to allegations that he sexually assaulted a young woman many years ago.
Note here that the distance in time is not an indication, or should not be taken to be or made to be, that assault is mitigated by the passage of time. Rather, the 36 years separating the alleged event and the current hearing makes proving the allegations all the more difficult. As such, none of the witnesses named by the accuser has corroborated her story. They have either denied that it happened or have no recollection that it did. There can be no physical evidence at this point, either. And so Greg wisely does not focus on these charges but on Judge Kavanaugh’s response to them.
His concern, a legitimate concern to be sure, is that a Justice Kavanaugh sitting on the Supreme Court would not be trusted by a large part of the country. In his own words, “It is about whether that justice will have both the ability and, crucially, the credibility to render neutral judgments of law.” This is no small matter. Justice must also be seen to be done.
Greg’s concern is twofold: the man became disproportionately angry and he referred specifically to the members of the Senate Judiciary Committee from the Democratic Party. The first betrays an emotional demeanor unsuited to the Supreme Court. Clarence Thomas, by contrast, was stoical in the extreme. The second is unprecedentedly partisan. Neither Justice Thomas nor other nominee for the bench has ever behaved in this way. Here is Greg’s account:
Mr. Kavanaugh fulminated: The process was “a national disgrace.” He interrupted. “What do you like to drink?” he demanded of Senator Sheldon Whitehouse, Democrat of Rhode Island. He invoked old political disputes and argued that the accusations against him were fueled by “pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” He appeared to level fresh political threats: “And as we all know, in the United States political system of the early 2000s, what goes around comes around.”
In contrast to Kavanaugh, Greg quotes James Wilson who said judges “ought to be placed in such a situation, as not only to be, but likewise to appear superior to every extrinsic circumstance, which can be supposed to have the smallest operation upon their understandings, or their inclinations.” Kavanaugh did not pass this test.
Here I would make two points. First, Wilson was not referring to a Senate hearing. In fact, by “situation” he was referring to the salaries and offices of judges. Judges must not be or even appear to be dependent upon outside influences for their creature comforts. Interested parties must not be paying for their rooms or chambers or determining their pay. They are not expected to be Vulcans.
Second, the situation Kavanaugh was put in by the machinations of the Democrats on the Judiciary Committee was unprecedented and unconscionable. Senator Feinstein apparently held back the allegations for six weeks, revealing them to the public and the Republican majority of the committee at the last minute. There are means to look into such allegations far from the public eye. If they are found credible or at least likely enough to discourage senators from approving the nominee, all can be done without dragging anyone’s reputation through the public square. This appears to have been the intention of the accuser, Dr. Ford. That is, she intended to have remained anonymous and that the appointment of Judge Kavanaugh be avoided with as little publicity for herself or the reasons as possible. Perhaps she knew of Poor Richard’s lines:
She who attacks another’s Honour
Draws every living Thing upon her.
Yet the Democrats on the committee decided to draw down everything upon both accuser and accused. They put the accuser in the unwanted position of having to publicly testify. (There are even now questions as to whether her lawyers told her of the opportunity offered by the committee to testify in private.) The ranking member put these accusations out in public, in the most heated of environments. The Kavanaugh family thus became targets of harassment and Judge Kavanaugh was presumed guilty by half the committee and a large part of the country. It is in this context, not the context of adjudicating a trial nor one that might try to influence his decisions from the bench, that he responded.
Modern society makes light of honor and reputation, as Tocqueville predicted it would. But this does not mean it ought to be held lightly. We read in Federalist 64, in regards to trusting those making treaties for foreign nations that, “Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity.” If we want to live in a society in which reputation is more a source of good behavior than a Hobbesian fear of the sovereign power, we should attend to honor and not despise someone who defends it.
Alas, the consequences outlined by Judge Kavanaugh in his prepared remarks last week have come to pass. He predicted that the allegations, made public the way they were, would prevent him from being able to teach law, a practice he has enjoyed for years. Just the other day, in response to a petition at Harvard Law School, he was forced to resign his position as Samuel Williston Lecturer on Law. He predicted that he would be unable to continue to coach his daughters’ basketball teams, which he had done for years. Right on cue USA Today published a piece strongly suggesting that Kavanaugh should stay away from children. (They have since amended the essay.) One’s reputation does matter.
To my mind the most serious charge Greg brings against the nomination of Judge Kavanaugh is that he revealed a partisan animus against the Democrats. He suggests that the man will not be able to be impartial in future. But the only evidence we have is that he is not impartial toward himself and his reputation, something expected of no judge. Yet here he was put in the position of defendant, not judge. The difference is real.
Should Greg’s standard for judicial temperament be accepted, two consequences follow. First, Kavanaugh should be impeached and removed from the Federal court. If he has demonstrated himself ineligible for the Supreme Court he should be ineligible for lower courts. Yet if this is the case, it only confirms the propriety of his anger. Aristotle says a man who gets angry at the right things and the right people is to be praised (Ethics IV.5). The Democrats on the Judiciary Committee, through the specific ways they introduced allegations to the committee and the country (again, regardless of the truth of the accusations) threatened not only his advance to the highest court, they threaten his current position, just as the events have taken away his teaching position and potentially his coaching. Aristotle would call this good temper and gentleness, not intemperate.
But beyond Kavanaugh himself, Greg would leave us with a system in which any defense of one’s honor, reputation, and livelihood could be considered inappropriate. If interrupting senators is unjudicial, is an eye roll? What would it take to goad someone into an inappropriate response? Was Edmund Burke’s “Letter to a Noble Lord” going too far in defending his reputation?
No, the real problem here is that for half the members of the committee, almost half the Senate, and a large part of the country and media, Chuck Shumer was right, “there is no presumption of innocence or guilt.” But the presumption of innocence is our society’s way of protecting the innocent over and above punishing the guilty. Lifting the presumption from both sides leaves each of us on a knife’s edge, as it has Judge Kavanaugh. Should his nomination be withdrawn, the presumption of innocence—that being the most fundamental point of honor each of us carries as our reputation—will be gone. Where will that lead?