Why I Signed the Law Professor’s Letter opposing the confirmation of Judge Kavanaugh to the Supreme Court

Since I signed the law professor’s letter opposing the confirmation of Judge Kavanaugh to the Supreme Court, I’ve received some e-mails, including from the public and from the press, commenting on that decision or asking for an explanation. I figured it would be worthwhile to reproduce (with light edits) some comments I sent to a reporter explaining why I signed the letter. Note that these comments, like the letter, focus not on the substance of the allegations, but on Kavanaugh’s intemperate and partisan display in response. I think the allegations themselves are extremely serious and credible, but we also should talk about his response to them, which is independently disqualifying.

I never thought I would see the day when a nominee for the Supreme Court would yell at the Senate, and accuse the minority party of being involved in some kind of revenge conspiracy on behalf of the Clintons. I understand how he might be upset at the allegations against him, but no other prominent figure faced with similar allegations in this period of reckoning about sexual abuse against women has acted so intemperately in response, and a Supreme Court Justice should be more, not less, restrained in his response.

Yes, that’s a burden. A lot of people on the right have been pointing that out: people who are subject to such serious allegations are often upset, and asking them to remain civil in response is a big ask. But we make a lot of big asks of judges. Judges are not entitled to react like normal people, they’re not entitled to be partisan like normal people. They play a special role in our legal system, and occupy a special position of trust.

The American Bar Association’s Model Code of Judicial Conduct represents our national standards of how judges should behave, and it forbids judges from having essentially any partisan affiliations [edit: see similar provisions in the Code of Conduct for United States Judges] — it forbids them, for example, from making speeches for political organizations, giving money to political organizations, endorsing candidates, and similar activities. It also requires a judge to exercise decorum in all his or her official conduct in the courtroom.

Judges routinely express, in private moments, the burden and strain of these requirements — the difficulty they have doing their job and keeping silent on issues about which they are passionate. But they do it nonetheless. Because they respect the role, the dignity of the law and the office, and the obligations of neutrality and decorum that office entails.

Those standards, and the ideals they represent, are totally inconsistent with the picture of a sitting judge, nominated for a promotion to the highest court in the land, responding to very serious allegations against him with ranting about revenge conspiracies and dark intimations about comeuppance.

As a scholar who has spent years studying the rule of law — -the principle governing the operation of liberal democratic (small l, small d) legal systems, which includes the requirement that judges be impartial — I find it very hard to see how Kavanaugh can fulfill the functions of a neutral judicial officer. Certainly he will be obliged to recuse himself even in his current position from any case involving the Clintons or the Democratic Party, since he has now alleged that they’re involved in a conspiracy against him.

It’s also astonishingly strange lawyering. Why would Kavanaugh waste an opening statement in his defense on a tirade against imagined conspiracies? If he thinks the evidence points to his innocence, why not take the opportunity to recount that evidence, to explain how it shows that he is innocent? It’s really concerning that he would set his own considerable legal skills and ability to examine evidence aside in a prepared statement in favor of giving vent to his anger; that also is very troubling — do we really trust a judge who is unable or unwilling to focus on evidence when he’s angry?

[Clarification edit: if you watch the video that includes his opening statement, he talks about evidence until about 3:20. That part is unobjectionable. Then there’s pure tirade until about 9:30. The really over-the-top part begins around minute 5. Minute 7 is where the conspiracy theory maxes out. He says more mostly unobjectionable things from 9:30 on. The rant against the Democrats from minutes 3–9 is the part that I want to focus on, where he sets evidence aside in favor of tirade. I should have said “distract from” the evidence discussion rather than “waste time,” since in his long opening statement he does discuss the actual evidence fairly extensively. So the last paragraph, written in a snap e-mail response, wasn’t fully fair — I’ve reproduced it here in its original form, since it’s what I sent to a reporter, plus, I think the core point about leaving aside evidence for tirade is relevant.]

Addendum: relevant excerpts from the Code of Conduct for United States Judges

The following excerpts express the standards of conduct to which Judge Kavanaugh should be held. I submit that his partisan rants and disrespect exhibited at the Senate violate these standards of conduct, both by indicating a strong political affiliation and bias, and by casting reasonable doubt on his ability to render impartial justice or follow the law when he is angry in his judicial capacity. The reader should pay particular attention to Canon 2a

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

. . .

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

. . .

Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.

. . .

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:

(A) Adjudicative Responsibilities.

(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.

. . .

(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.

. . .

Canon 4: A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

. . .

Canon 4F. The appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources and the need to protect the courts from involvement in matters that may prove to be controversial. Judges should not accept governmental appointments that could interfere with the effectiveness and independence of the judiciary, interfere with the performance of the judge’s judicial responsibilities, or tend to undermine public confidence in the judiciary.

. . .

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

. . .

(C ) Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.