In executing their Delay, Delay, Delay strategy against President Trump’s nomination of the eminently qualified Brett Kavanaugh to the Supreme Court, the most risible and blatantly political claim posited by Democrats is their objection to his purported lack of judicial temperament. The idea is that, because Judge Kavanaugh reacted with indignation to slanders that he is a gang-rapist, and because he observed that the unabashed left-wing smears against him were, well, left-wing smears, he is unfit to be an objective jurist — as opposed to a normal human being, and a perceptive one at that.
Of course, the best measure we have of how someone will perform in a government office is how that person has already performed when in that office, or in a very similar one. And the best measure we have of the seriousness and good faith of a critic’s claim against a nominee is whether the critic consistently levels similar charges in analogous situations.
On that score, I note the following:
Brett Kavanaugh has been a judge for a dozen years on one of the most important judicial tribunals in the country, the United States Court of Appeals for the D.C. Circuit. In that office, not only has he issued over 300 opinions, which have been broadly admired for their craftsmanship and heavily relied on by the Supreme Court and other federal courts; he has also been widely praised for his judicial temperament by litigants, colleagues, and bar associations. The diverse group of clerks he has mentored has been in high demand for Supreme Court clerkships and other distinguished positions in the legal profession.
His judicial temperament could not be more apparent.
By contrast, here is Supreme Court justice Ruth Bader Ginsburg speaking about Donald Trump, then a presidential candidate, two years ago:
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?
Guy Benson reminds us of some similarly injudicious remarks by Justice Ginsburg:
In a New York Times interview, Ginsburg doesn’t hold a thing back when it comes to the 2016 election. “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.” Ginsburg also recalled something her late husband said about such matters: “Now it’s time for us to move to New Zealand.”
If they practiced consistency, Kavanaugh’s critics would be calling for Ginsburg to step down, or at the very least to recuse herself from any case in which a component of the Trump administration is a party before the Court. But, of course, she continues to participate fully, and Kavanaugh’s critics are glad of it — they despise Trump as much as she does. Their sky-is-falling attack on Kavanaugh’s character is a reflection of Ginsburg’s sky-is-falling forecast of the Trump presidency and its portents for the Court.
That is, it’s all political.
Then there is Eric Holder. Before becoming President Obama’s attorney general, Holder was President Clinton’s deputy attorney general and effectively ran the Justice Department because of Attorney General Janet Reno’s deteriorating health. Naturally, when Holder was nominated by Obama, the most relevant track record was his performance in virtually the same job under Clinton.
So what temperament and judgment did Holder demonstrate? Well, among the most corrupt episodes of the Clinton presidency was the last-minute pardon of fugitive Marc Rich, who’d been featured on the FBI’s Most Wanted List and stood accused of racketeering, defrauding the Treasury out of tens of millions of dollars, and trading with our nation’s enemies — including Iran, which Rich supplied with desperately needed funds while Khomeini’s embargoed regime held American hostages. Deputy Attorney General Holder orchestrated the Rich pardon for Clinton; concealed its consideration from the Justice Department’s pardon attorney and the prosecutors responsible for Rich’s case; did these things under circumstances in which Rich was represented by Vice President Gore’s confidant Jack Quinn (the former Clinton White House counsel) and Holder had prospects of being named attorney general in a Gore administration; and gave highly suspect testimony to Congress about the controversy.
Yet, when it came time to consider Holder’s nomination by Obama, he was confirmed in a 75–21 landslide, with all 54 Democrats (as well as 19 Republicans and 2 independents) voting in favor. Simply stated, in the politics of the moment, there was nary a care about Holder’s fitness for the job based on his past performance. Holder went on to become the first attorney general in American history to be held in contempt of Congress for misleading and stonewalling lawmakers trying to investigate the Fast and Furious “gun-walking” scandal.
The suggestion that Judge Kavanaugh lacks the temperament and judgment we expect in a Supreme Court justice is specious on the merits. It could not, moreover, be more transparently political. If Kavanaugh were a Democrat and a “living Constitution” progressive, he would already be one of the nine justices beginning the Supreme Court’s term today, even if he actually had been a serial rapist during his spare time away from the drunk tank.