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Kavanaugh’s Way: A Response to Greg Weiner

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?

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 04, 2018 at 07:34:58 am

Judge Kavanaugh’s opening statement in the second round of his confirmation hearing was one of the most inspiring forensic performances I have ever seen. A tour de force. It brought me to tears. His responses to the progressive activists posing as Democratic Senators were, I thought, wholly appropriate. This is a defining moment for America (like the 2016 election).

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Mark Pulliam
on October 04, 2018 at 07:57:08 am

Can Weiner not recognize that the secondary objective of the vile slanderous attacks advanced by the Democrat Party was *precisely* to discredit Kavanaugh's philosophy and temperament. In so doing, they would be able to stigmatize both his character and judicial reasoning as to "delegitimize " (My Gawd, CAN we get a real spellchecker here) any decision that would impair the sacramental right(s) known as a "womens right to choose." Consequently, the Leftists could continue to posture themselves as the last / best hope for women.

Weiner has apparently succumbed to this time honored tactic of the Left, i.e., "We (Leftists) set the narrative. It is for the (alleged) Right to contest that presumption."

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gabe
on October 04, 2018 at 07:58:30 am

Oops, forgot last line:

Weiner not only fails to contest the Left's presumption, he willingly accepts it.

Quite sad!

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gabe
on October 04, 2018 at 10:11:38 am

For me the attitude of Greg Weiner is unbelievable arrogance.

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JD Bryant
on October 04, 2018 at 10:34:40 am

It doesn't matter who president Trump nominates, they will get the same treatment as Judge Kavanaugh. First, they will be Borked, if that doesn't work, they will then be Kavanaughed, with the idea being that mindless people like Greg Weiner will react to each one the way he has reacted to Judge Kavanaugh, disqualification because of the way he answered a smear campaign orchestrated by the democrats that had no foundation but lies.

I have no respect for any of the democrats or anyone who supports them in this travesty !!

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Jim Lewis
on October 04, 2018 at 10:35:19 am

I'm with him. Aristotle that is. What seems implicit from the Weiner argument is that a man or woman who can be goaded or pummeled into anger during the inquiry, does not have a judicial temperament. Terrible precedent for future judicial inquiries. As a mere commoner, I know lots of non-elites who were glad BK defended his family and his honor.

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Windswept House
on October 04, 2018 at 10:47:37 am

Ahh! and here is the irony of it all:

Greg Weiner, defender of the Constitution, an able spokesman for such constitutional concepts as separation of powers now finds himself aligned with (our own beloved) nobody.really, the defender of statist redistribution and all manner of other Progressive follies, in that both Weiner and nobody really would deny confirmation to Judge Kavanaugh owing to an alleged lack of 'judicial temperament."

https://www.youtube.com/watch?v=KQveng3Wxz8

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gabe
on October 04, 2018 at 11:21:36 am

He said the truth. How does saying the truth make someone eligible for the Supreme Court? Have we come so far down the rabbit hole into a dystopian world?

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Devin Watkins
on October 04, 2018 at 12:58:13 pm

?????

WHO said the truth?

How does saying the truth make one [in]eligible for the Supreme Court.

Is this a case of poor phrasing or are you actually asserting that a man's (Kavanaugh) truthfulness ought to be held against him (at worst) or be ignored (best case).

I am having trouble following this line of reasoning.

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gabe
on October 04, 2018 at 13:06:52 pm

I regard as naive the conservative outrage in response to the treatment of Judge Kavanaugh, since without Truth only the exercise of power remains. But are we not all complicit in this? Have not conservatives, themselves, exhibited a willingness over time to 'compromise' in matters both moral and political given our own moral skepticism? Indeed, one of the marks of the superficial conservative (or the pliable conservative) is the growing willingness to regard morality as elastic and 'truth' as culturally defined when it comes to one's personal lifestyle. As unfair and morally corrupt the Democrats have become, can we not reflect, as well, upon our own slide into dubious moral choices? Can we really defend the drinking social norms of the Ivy League undergraduate as consistent with the Christian legacy of temperance? To what extent have we, like the Democrats, fallen into a postmodern outlook such that we also get to pick and choose which aspects of Truth we will follow? I contend that the personal always presages the social revolution, and conservative's personal lives are not as 'conservative' as they pretend.

Ironically, the Democrats have managed to paint themselves as the paragons of western virtue at the same time as they have gutted the most basic tenants of biblical and natural law. How have they done this? Simple: they have isolated a single value within the entire western tradition (egalitarianism or 'justice for all') and effectively weaponized it in order to destroy the rest of traditional morality. Conservative have allowed this to happen simply because we have failed to grasp that if you denigrate morality in the name of morality, you will lose everything. Maybe we have not seen this eventuality because we have too much enjoyed the luxury of selective morality ourselves. We naively thought that we could go on like this forever...

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Karl
on October 04, 2018 at 14:54:21 pm

I am sorry Karl but I do not see any consistency in what the Democrats did. With the help of a compliant media, they tried a man with an impeccable reputation but that only happened after they failed to show that he was unqualified. Note that they sat on false charges for weeks because they knew that the charges could not stand up to scrutiny. Dr Ford was used as a pawn in their attempt to get the nomination withdrawn. But Judge Kavanaugh had the stones to defend his reputation and his honour. And he did it quite openly and in public, something that has to be humiliating to anyone falsely charged.

Note that after Kavanaugh and his wife did the interviews, the rapist angle evaporated. Unlike the Democrats who sat in judgement Kavanaugh actually believed that you should be married before having sex. Given his statements and his history, it became hard to sell a fake allegation that had no time, no place, and no details that could be corroborated. So what the Democrats did was move on to another set of charges. He drank beer as a kid. He threw ice once. Some of his friends were rough and told fart jokes. They tried to discredit the man by making false allegations as unwitting useful idiots were coached by Democratic operatives who cared nothing about women but feared the idea of interpreting the Constitution the way it was written. Imagine an America in which most of the foolish things that the federal government did were ruled to be unconstitutional? Who would protect society from toilet tanks that held too much water or cars that had powerful engines and only four airbags rather than the mandated 18? Who would tell people how much salt they could consume and what made up a healthy diet?

I imagine that 80% of the people in some of the Washington suburbs would have to find real jobs in the private sector if judges who stood for the Constitution were elected. I imagine that many of the corporations that use the federal government to erect barriers that protect them from competitive pressures will either have to learn how to compete by servicing consumers better or go bankrupt and have their assets used by companies that are better able to allocate capital efficiently.

I do have an issue with Kavanaugh but it has nothing to do with his temperament or his interactions with women. Kavanaugh seems too much of an insider to me and was far too cavalier when Americans lost many of their rights during the implementation of the disastrous Patriot Act. He was a part of that process and if he were truly a thoughtful and moral man, he would have resigned rather than support that monstrosity. Ironically, the unprincipled Democrats do not have a problem with those of his actions because they are just as opposed to individual rights as the Republicans.

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Vangel Vesovski
on October 04, 2018 at 15:14:41 pm

I think that the Radical Left cares about how you say something and doesn't care if it is true. The fact that Kavanaugh never did any of the things that Dr Ford accused him of is not relevant. What is relevant is his ability to feel her imagined pain and accept his share of the collective guilt for some assault somewhere. Your country is subject to faddish emotivism at this time and that brings the ship of state is in very dangerous waters. Watching the hearings brought David Hume to mind. In particular, I remembered a few of the words that I had to go back and reread again. Fortunately, Kindle and search engines are great for that. In his book, An Enquiry Concerning the Principles of Morals, Hume stated that morality may be a matter of facts but it is determined by active feeling or sentiment. He wrote:

"The approbation or blame which then ensues, cannot be the work of the judgement, but of the heart; and is not a speculative proposition or affirmation, but an active feeling or sentiment. In the disquisitions of the understanding, from known circumstances and relations, we infer some new and unknown. In moral decisions, all the circumstances and relations must be previously known; and the mind, from the contemplation of the whole, feels some new impression of affection or disgust, esteem or contempt, approbation or blame."

The irony is that the party of moral relativism is using sentiment to make a case to a public that is growing weary of lying and hypocrisy that Kavanaugh should be rejected because they feel bad about his morality. I guess they fail to remember the actions by Obama, Clinton, Booker, Kennedy, and many of their heroes.

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Vangel Vesovski
on October 04, 2018 at 15:49:14 pm

On the whole, which is worse:

Allowing for, BUT not endorsing, the idiocies of youth and its infatuation with intoxicating beverages?

OR

Permitting the slandering of an otherwise decent human being for nothing more than political positioning?

Or are we now to demand that only teetotaling Baptists be permitted positions of responsibility?
In the present instant, such a stance would effectively endorse the actions of the vile and unprincipled Democrat Party.

I would prefer Aquinas' belief on the matter:

"Sorrow can be alleviated by good sleep, a bath and a glass of wine."

But in fairness, I must point out that the Democrats also may quote Aquinas; (with editorial updating)

"If forgers and malefactors are put to death by the secular power, there is much more reason for excommunicating and even putting to death one convicted of [the] heresy [of conservatism]."

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gabe
on October 04, 2018 at 16:52:18 pm

As a non-reader (though former subscriber) of the NYT for something like the past 25 years, any nuances jn Professor Weiner's expressions have been missed.

In making the kinds of judgements referred to, we might keep in mind the context in which, and to which, human reactions respond.

An "accused," convinced of the falsity of the accusations of the "accuser" may be hostile in response in **facing** the "accuser." When deprived of facing the actual accuser, and facing instead others forwarding the accusations (in whole or part) the hostility of the "accused" toward the falsity or falsities, of the accusations may very well fall upon those others taking those roles.

In the context at issue, there was plausible evidence to the "accused" ( and to others) that "Senators" had turned from the process of judicious enquiry to the role of accusers - the only accusers to be faced, accusers with raw pre-stated motives known to the "accused." The desire (politically motivated?) to assume the sympathetic role of the "accuser," who was shielded from direct confrontation, and to take on that accusing role for the possible political value to themselves was blatant and evoked the responses of the "accused" - who might have acted with "disappropriate" physical actions if any girls under his care as coach had been attacked by hooligans.

In this context. the "Senators" were posturing politicians, not "Senatorial." The responses were appropriate to the
context they provided.

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R Richard Schweitzer
on October 04, 2018 at 21:51:47 pm

Lewis was truly prophetic:

"such is the tragi-comedy of our situation — we continue to
clamour for those very qualities we are rendering impossible. You can hardly open
a periodical without coming across the statement that what our civilization needs
is more 'drive', or dynamism, or self-sacrifice, or 'creativity'. In a sort of ghastly
simpUcity we remove the organ and demand the function. We make men without
chests and expect of them virtue and enterprise. We laugh at honour and are
shocked to find traitors in our midst. We castrate and bid the geldings be fruitful." -The Abolition of Man, Chapter 1.

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Bill Burns
on October 05, 2018 at 18:40:55 pm

I said the truth. Kavanaugh said the truth about the antics of the democrats. Saying the truth should never be held against someone.

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Devin Watkins
on October 08, 2018 at 10:07:18 am

[…] Kavanaugh’s judicial temperament based on his confirmation hearing—and who proceeded to have good arguments with good friends—owe him the opportunity to show we were wrong about that issue. He bears an equal responsibility […]

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Image of Avoiding the Next 50-48 Vote: Disempower the Court
Avoiding the Next 50-48 Vote: Disempower the Court

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.