A Lesson for Kavanaugh From Another Tarnished Supreme Court Justice

Hugo Black rose from his past in the Ku Klux Klan to become one of the great civil libertarians.

Comments: 194

  1. Great article. Great perspective on this event. I, too, prefer the sunrise side of the mountain.

  2. @Bob
    Sunset side of the mountain seems a more apt description right now of American democracy.

  3. Wait till uncorroborated allegations can stain anybody, there wouldn't be the sun, no matter sunrise or sunset. There is reason it became a saying in imperial Japan "if one were to be criminalized, there would be no shortage of excuses."

  4. Thank you for bringing this historical lesson to our attention. As always, you offer a well-reasoned perspective worth considering carefully. I join you in the hope that Mr. Kavanaugh follows Mr. Black's course, though I am skeptical that he will b e able to grow beyond his partisan background.

  5. Justice Black was a great Justice but he was NOT a consistent champion of the First Amendment.
    During the Vietnam War a young man wore a shirt or jacket [I forget which] that carried the message " [obscene word beginning with 6th letter of alphabet] the draft".
    Convicted on obscenity charges the case went to Supreme Court. Black in the minority in a 5-4 decision [I think Cohen] that struck down the conviction on grounds it violated the First Amendment , Black argued that the [obscene word] was too obscene to merit 1st amendment protection.
    So much for Black's famous saying "No law means no law"
    Black also voted to uphold the Japanese WW2 internments saying "We were at war."
    Neither of these two arguments are Constitutional arguments but are arguments based on expediency.
    All Justices even one as distinguished as Black make decisions based on expediency instead of on the Constitution.
    I believe also in Tinker, Black in a dissent in a 7-2 decision that upheld the 1st amendment rights of school students to wear black arm bands in protest of the Vietnam War argued that the 1st amendment did not strictly apply in schools and the need for order in the schools was more important than the 1st amendment..

  6. @david
    I believe First Amendment rights to be a bedrock of our democracy. However, the idea that children should enjoy these rights, especially on the schoolgrounds, is absurd. I say this in spite of today's abrogation of anybody's (students or teachers) rights to say anything deemed by the PC monitors to be "mean".

    Can you imagine what would happen if white male students today displayed signs stating the obvious: "Blasey is a lying, conniving lunatic"? So much for free speech in today's world!

  7. @david

    Black did become more conservative as he got older but many observers of the court consider him as the key to much of the expansion of rights that occurred under the Warren Court.

  8. It is entirely possible that Justice Kavanaugh is starting to realize how political his appointment was and, combined with the sheer weight of his new responsibilities, allows him to re-orient his priorities to the greater good of his country. But, as you correctly point out, only time will tell. An important question to ask however, is whether there will be a country left to protect.

  9. better to play the lottery. your odds are better than him changing

  10. @Lyle Nah. That is not in the behavioral repertoire of a classic narcissist. The rage we witnessed at his hearing is all one needs to know about how this man operates mentally.

  11. @Lyle Ah NO

  12. His own confirmation testimony revealed the newest Justice to be blatantly partisan. Any hope that he will vigorously pursue anything other than a partisan political agenda is misplaced. The reputation of the Supreme Court has been permanently diminished in the same manner that the Office of the Presidency has been permanently diminished by the conduct of its current occupant.

  13. @Mike Gera How inappropriate, and nasty, to attempt to conflate Justice Kavanaugh with former KKK member Justice Black.

    Mr. Kavanaugh was vetted 6 times during his government career and a 7th time after his hearings, and the FBI found no evidence of wrong-doing.

    Dr. Ford, who accused Mr. Kavanaugh of sexual assault, was unable to remember the day, month, year, city or house in which the alleged assault took place, nor how she got to or from her home to the location of the alleged assault. The witnesses she named as being present were, according to the FBI, unable to recall the alleged incident. Dr. Ford has had 35 years in which to bring criminal or civil complaints against Mr. Kavanaugh, but did not do so and has now said she does not plan to do so. She was the Dems' star witness, and her allegations were manifestly unsupportable because they were uncorroborated and lacked even rudimentary evidence.

    As a life-long Democrat I am disgusted with the so-called Democratic leaders and their blatantly phony attempt to derail Kavanaugh's confirmation and tarnish his reputation, an exercise in political theater rather than a genuine search for truth and justice.

    Let's stop this nonsense and focus our efforts on getting out the vote next month and in 2020, the best way to exercise--and achieve--Democratic power. Besides, attacking a sitting Justice can only energize the Republican/Trumpian base and push some independents/undecideds to the dark side.

  14. @Mike Gera

    I would add, "Sorry, Linda. Bret Kavanaugh is no Hugo Black, and never will be".

  15. Thank you for this great perspective. I don’t expect Kavanaugh to change into a progressive, although I think the Constitution is a progressive document. I do expect Kavanaugh to act with dignity. I pray that he stays away from the conservative lecture circuit and works to stop partisanship.

  16. The Federalist Society put Justice Kavanaugh on the SC - it’s too much to expect Kavanaugh will not repay the favor.

  17. He won’t. That would require bravery. He has none. The fear that Kavanaugh’s past will be investigated will perpetuate him to be staunch ally well beyond repair. We are seeing this all over. Right now we are watching voter disenfranchisement in Georgia. This history will not likely repeat itself, there is no time for reflection when something much more eminent is looming over the horizon.

  18. Only time will tell if Justice Kavanaugh has the strength of character and sense of duty to be an impartial respecter of the U.S. Constitution. Sadly, his performance, and I know of no other way to describe his appearances before the Senate, was appalling and very political. We can only hope that when he walked into his office at the Supreme Court, he was struck with the gravity of his new position and responsibilities to the Constitution. We'll see soon enough.

  19. Actually, while at this point I don't think there's a remote chance of Kavanaugh finding the same courage and humility as is described here (he had his chance, he blew it), I am hopeful that perhaps another conservative member of the bench - John Roberts - may see the necessity for this tack and move more towards the swing vote position. Wishful thinking, I know.

  20. @Joanne Bartsch- The most likely outcome, Kavanaugh will be a solid conservative vote and Roberts will be "the swing vote" ie side with the liberals on occasion not to make it look like the court is totally partisan.

    He did it with gay marriage, ACA and a few others.

  21. He may want the confirmation process behind him, but he will likely be hamstrung by Donald Trump who will use him to rally the troops.

  22. Black, like other southern senators, had been a vociferous opponent of anti-lynching laws, so his mostly-progressive jurisprudence on race was surprising (though that must be balanced with the heavy weight of Korematsu, a stain on his career and the court’s). Black, however, was always a vociferous advocate of the New Deal, and when he got on the bench he more or less ruled as FDR had expected him to. In that sense, there was no transformation: Black was who the president expected him to be.

  23. This is not to excuse Black's KKK member but as he remarked a politician in Alabama had to be a member of the KKK. But Black never participated in any Klan actions.

    What bothers me about Kavanaugh is what he has said.
    He believes a sitting president may not be indicted and prosecuted thru the legal system. Whether Trump is impeached by the House there will not be 67 Senate votes to convict. That means Trump is above the law.
    Actually K believed that Bill Clinton [a DEMOCRAT] could be prosecuted while president but Trump [a REPUBLICAN] can not be.
    K is against regulating firearms like the AR 15 which have been used in mass killings.
    He voted against stricter regulation of mercury [a neurotoxin] emissions from power plants.
    I am not optimistic that K's elevation to the Court will cause him to change these positions.
    K claims to be an "originalist".
    During colonial times when the 2nd amendment was adopted there were laws banning loaded guns in the home.
    One of the most unfortunate parts of Scalia's Heller opinion was Scalia's striking down the requirement of safe storage of guns in the home. How many times has a child picked up a loaded unattended gun and killed himself or others.
    Would K support modifying this part of Heller.

  24. @david - Always giving excuses as long as he's a Democrat

  25. @david You have it backwards. Kavanaugh said he thought Congress should enact laws sheltering the President while in office. He does not think that that protection now exists.

  26. @david Tou have it backwards. Kavanaugh said that Congress should enact laws sheltering a President while in office. He does not believe that protection now exists.

  27. Yes, I truly wish Judge Kavanaugh would blindside and amaze all of us horrified by his confirmation with a judicial, even-handed swing vote.

  28. Kavanaugh was blatantly partisan and belligerent in his testimony to the Senate. Of course, he was more muted when he took the oath of office. He said, "My goal is to be a great justice for all Americans and for all America." But "It may be decades before we know whether he has achieved that goal."

    In the meantime I am not holding my breath; I'm going to vote to ensure that the rabid forces that have taken over the GOP are driven out of office.

  29. There are probably those who do not agree with the author’s assessment of Black, even with the caveats noted by other letter writers, and rather see him as a terribly partisan judge who failed miserably in interpreting the Constitution as it was written. Those same people may, years from now, hail Kavanaugh as an impartial jurist who applies the Constitution as it was intended to be applied. It all depends upon how one feels about the consequences of their judicial opinions.

  30. It's impossible to predict how Justice Kavanaugh will opine on specific issues. Supreme Court justices can change over time. Retired Justice Souter, touted as a staunch Republican conservative, became a reliable ally of liberal causes. Chief Justice Roberts, another supposedly safe conservative pick, saved Obamacare -- much to the disgust of Republicans. The Court provides a more collegial setting than lower courts. Who knows, perhaps even Justice Thomas will start respecting the views of his colleagues more than he has.

  31. For the sake of perspective, one can argue that Chief Justice Roberts' ruling in favor of Obama care, could be construed as a "make good" of sorts, for his ruling in favor of Citizens' United.

  32. @Richard

    Justice Souter was exactly who he was from start to finish. A Yankee conservative. Honest. How rare. And now, libeled and slandered exactly because he had those qualities and was not a legislator on the Court.

    Brett will opine as he was promised to opine by the man Brett obsequiously flattered and engaged in fake ceremonies with, after pitching a fit for, his Lord, Trump.

  33. Dignity, integrity, controlled demeanor, compassion, honesty, open mindedness and intelligence are terms that should come to mind when qualifying someone for the Supreme Court. Kavanaugh exhibited none of these qualities during the recent hearings. Rage, hysteria, blind loyalty, poor memory and egocentrism should not be characteristics of a Justice. I have no confidence that either the protection of lifetime tenure or the weight of new responsibility will change Kavanaugh's core beliefs. All people resist change.

  34. The main take away from the op-ed is, give Justice Kavanaugh a chance, who knows how he will rule on cases, he may surprise the liberals and become a swing vote. On the other hand, he may not. And that's OK, too.

    I support Justice Kavanaugh. I hope that all of those who opposed him, especially Senators Booker and Harris, have squeaky clean pasts; I hoped they lived as saints in high school and college. That they never sipped a drop of alcohol, smoked a jay, nor snorted a line. The opposition research firms need to start digging into their pasts, especially Senator Booker's. He thinks he is going to be the next Obama, but he won't, he does not have the national appeal nor the temperament as did Obama.

    Justice Kavanaugh will go down in history as one of the greatest Supreme Court justices of all time. President Trump, America thanks you for your selection of Brett Kavanaugh and hopes you have more opportunities to appoint more sensible, level-headed judges to the SC before you return to private life in 2025.

  35. Maybe Justice Kavanaugh should have heeded advice such as yours when he went after Clinton . Then his own past would have mattered less? Or perhaps you yourself do not want to hold him to the same standard you threaten 2 democrats with?

  36. If the checkered past of any candidate, regardless of party affiliation, includes attempted rape, I would consider him unfit.

  37. @Southern Boy

    Too early for Happy Hour, Southern Boy. But thanks for the 8 a.m. laugh.

  38. Having recently finished Doris Kerns Goodwin book, Leadership in Turbulent Times, each president in the book did undergo periods of adversity that forced them to step out of themselves and examine who they were, both socially and emotionally. My hope is that this hearing was just that moment for Judge Kavanaugh. Now, if only we could have some event that would do the same for our President, although I doubt he has the intellectual capacity for such an examination.

  39. @ACJ As an Adult writer Doris Kearns Goodwin was accused, and paid a settlement, of professional plagiarism. A moment to step out and examine, professional leadership, United States law, and fairness.

  40. @ACJ

    FDR notably did NOT "step out" of his political personna when he appointed Black. FDR was looking for votes. When FDR appointed Black, FDR knew that Black was a member of the KKK .

  41. The distinguishing feature in Kavanaugh's case is the right wing ideological grooming of his career and his unrelenting embrace of extreme right wing legal theories. I submit that the ideas of the Federalist Society might be useful for a litigator or advocate for corporate or 1% client but are unsuited to a judge.

    Those ideas necessarily produce activist judges who lean away from precedent, desiring to acheve a particular end to bring about societal change, often with a religious bent.

    The old saw that judges, after being on the bench for a while, end start leaning away from their original stance -- humanist if conservative, conservative if liberal -- was illustrated by Justice Black.

    Instead, with Kavanaugh, we see one legal world view displayed throughout his years as a lawyer and judge. I fear he will remain the results oriented spawn and pawn of the Federalist Society.

    I also would wish that Kavanaugh becomes a legal centrist who strives to render law consistent and developing along a steady path, with respectful consideration of all those who argue before him. Folks, I fear we are down to finger crossing on that one ... but I do welcome a bit of hope ...

    And, thank you for another fine column.

  42. Kavanaugh was accused before he was confirmed. A new nomination should have been put forth. He displayed a very non-judicious temperament which should have also disqualified him. But trump wanted him for trump’s own purposes so the republicans obliged. And, of course, trump regularly has temper tantrums so he liked that in Kavanaugh. I hope Kavanaugh will prove a friend of all citizens and not trump, but I am doubtful.

  43. @MLE53

    I hope you are right, but I doubt it. I firmly believe Kavanaugh lied and put himself in such a position that these are lies that he will have to live with for the rest of his life. Living with a lie changes people and not always for the better.

  44. @MLE53 Mrs. Ford lied to the Senate about 1) not being able to fly and 2) her need for two front doors. Worse she refused to provide the therapist's notes and polygraph details she claimed as evidence.
    Please explain why she should be believed in the least.
    Or have you jumped on the Democrats' "Guilty till you prove your innocence" train?

  45. @MLE53
    Dear MLE53,

    Justice Black was also accused before he was confirmed. The accusations were proven after he was confirmed.

    As Linda Greenhouse pointed out,
    "The N.A.A.C.P. asked for an investigation, but a Senate Judiciary subcommittee rammed the nomination through to the full committee after two hours of consideration."

    For Black not even the fig leaf of an investigation into the accusations as was the case with Kavanaugh.

    Nothing has changed. Imperfect men and women rule over us. Some are worse then others.

    With Justice Kavanaugh, we will see whether he becomes a good justice or not.

  46. Linda Greenhouse is to be commended for taking us back to the mid 1930's when the Supreme Court faced a crisis of legitimacy associated with its decision striking down New Deal legislation. Although FDR's court packing plan failed, then-Chief Justice Charles Evans Hughes understood the signal from debate over the plan and steered the Supreme Court in a way the dissipated the controversy. His efforts restored and maintained respect for the Court for decades.

    Chief Justice John Roberts faces a similar task. The refusal to consider the nomination of Merrick Garland, the close vote on Justice Gorsuch, and the confirmation process for Justice Kavanaugh have left deep wounds on the court.

    Chief Justice Roberts must decide whether he will act as an institutional steward or a Republican appointee. His actions over the next decade will determine whether history judges him to be a legal descendant of Charles Evans Hughes or an accomplice of Mitch McConnell.

  47. This article shows that our political and social climate are not much different than they have always been. What's different is 24/7 cable news repeating everything over and over again, and the use of the internet to provide misinformation and stoke up turmoil.

  48. @Jim Grossman

    Also different: He was appointed by a president who lost the popular vote and was placed in office by the antiquated, undemocratic Electoral College after being aided by the obstructionist Senate “leadership” who denied President Obama his right to appoint Judge Garland.

  49. The sudden erasure of the $120K debt (using season's tickets as possible cover)s means that Judge K will be always reminded which way his opinion should be slanted towards the mysterious benefactor.
    There's reasons why top secret clearances always flag sudden changes in debt/wealth.

  50. I wouldn't be surprised if Kavanaugh will be a stronger champion for women's rights than he otherwise might have been for the reasons that Ms. Greenhouse alludes to in mentioning Black. There are other contexts in which his nomination experience may alter his judicial thinking more subtly, for instance in more distantly related arenas of political and election law, criminal allegations, arbitration, torts, class actions, and more. This experience has undoubtedly changed Kavanaugh, as Thomas's experience probably changed his. Thomas was only briefly on the bench (about 16 months) before coming to the Supreme Court, but we will have more before-and-after comparisons in the Kavanuagh case to work with, because Kavanaugh has a decade of decisions as a circuit court judge to measure against. Black was justly chastened. Kavanaugh, by contrast, appears to have been justly angered by some pretty unfair smears. How will the excruciating pain of this experience alter his thinking? Jury's out. Black's case is different.

  51. "petty unfair smears"? I for one expect that the reports of BK's drinking and behavior are more likely true than false and so he lied (as did Black's supporters). We can only hope he learns from the confirmation experience.

  52. Times were different then. Kavanaugh is as likely to become a great civil libertarian as Clarence Thomas. His demeanor during his appearance after Dr. Ford and his mention of the Clintons tells us what kind of justice he will be: whenever there is an issue of great interest to "liberals" such as enforcement of tough environmental, consumer protection, labor, civil rights and health and safety laws and regulations, he will be a "no." He will let Republican administrations do whatever they want and will crack down hard on Democratic administrations. He will be a shill and a pawn -- as he always has been -- for the 1%.

  53. And in 2060, they will say times were different in 2018.

  54. Justice Black's background and evolution into a champion of civil rights provide a strong argument for people with a more varied background to serve on the Supreme Court. Living in the south and working in a police court he saw first hand how criminal defendants and, specifically african americans, were mistreated by the law. In order to fairly administer justice, one must have some basic understanding of the lives of the people whose rulings one will be affecting. A court that is predominated by Yale and Harvard graduates, while certainly capable intellectually, lacks the necessary world experience.

  55. @CAM, I agree with the general point, but as a Harvard graduate, I gotta say I know a LOT of Harvard graduates who have plenty of real-life experience. They work with and for the indigent, they represent the wrongly convicted, they are out in the streets doing difficult and punishing work day after day.

    I know well that there are also terrific jurists with degrees from other institutions, and I welcome their contributions to society and am never skeptical of their qualities. But we need to stop saying "Harvard and Yale" when what we mean is "privileged and powerful" or "sheltered and elitist." There's plenty of people matching that description who didn't go to Harvard or Yale, and they would provide no more benefit to society on the Court than my more privileged classmates.

  56. @CAM

    FYI: Totally agree and the same can be said of the national press today. There was a time when the Times and other news organizations proved their chops with fairly high test grade A southern journalists and even management. See: Turner Catledge.

  57. I am all for giving anyone a chance. I said so after the last election, unlike the partisan senate majority leader when Obama won his first.

    That I was disappointed within a month goes without saying. And my general optimism has been battered again and again to the point of unwanted stress and anxiety from the daily news.

    Unlike Black's broadcast, what was missing from K's interview with Fox was some form of admission, or even the possibility. The partisan outburst was an indication of anything but judicial temperament.

    History will surely tell us what will happen! And my hope is that it will not be at a terrible price for the people he is supposed to serve.

    This is what I learned from this farce. What we really need is a truly bipartisan, two third majority vote for any nominee to be confirmed and take away all this posturing about hearing people's will before granting anyone a hearing. A truly independent judiciary needs overwhelming bipartisan support. Not an election!

    Thank you for the article!

  58. Thank you for reminding us that our country's history is rich with controversy that tears at its very existence. May Justice Kavanaugh heed your call and truly be a justice who decides cases objectively and with an understanding of the judiciary's limited role. A true test will be if his decisions are not predictable, as they are for Alito, Thomas and Sotomayor, and as they were for Scalia, Brennan and Marshall.

  59. Nice article to try to give some hope to what is really a hopeless situation. If all we have is hope that Kavanaugh will some how have a epiphany that he represent all of America, not the narrow interests for the NRC, and should have a fair and open mind, we doomed. We know what he is and he is not for all of America, nor has he ever had a fair and open mind.

  60. Although I absolutely believe Prof. Ford, I hope for America that Kavanaugh will be able to vote justly rather than with the predictable bullying of Gorsuch. There is the potential that Kavanaughg could prove to be the thoughtful centrist the court needs for legitimacy. When Trump was elected, we all also hoped he could learn and grow as a person--but that proved to be wishful thinking. Perhaps Kavanaugh has more character and moral compass than Trump. We will soon see.

  61. I have been waiting with great anticipation for the first Linda Greenhouse opinion on the Kavanaugh nomination. I am as cautiously hopeful as she that Justice Kavanaugh will, like Hugo Black, evolve to moderation. Setting aside the fundamentally terrifying sexual assault allegations, he has so far demonstrated a defensiveness that betrays a penchant for "cleaning up" unpleasant truths, e.g. possible alcohol abuse and political hijinks. The bottom line: he's on the Court; that is unlikely to change any time in the next 30+ years. The only thing we can hold on to is hope -- hope that he will develop a more compassionate morality than he has demonstrated to date. Thanks to Linda Greenhouse for the Black story as her ode to positive possibility.

  62. Republicans have painstakingly worked for years to find/distill SCOTUS candidates who absolutely will NOT move from far right positions on key issues. Kavanaugh has been high on their list for 20 years. It's possible he'll vote with the progressives on major issues but not likely; not by a long shot. He's the Terminator Republicans have been grooming and awaiting.

  63. I appreciate this column, but I have a hard time believing that Kavanaugh will be able to discard decades worth of hard-right grooming by the Federalist society and Republican operatives and pivot toward a balanced centrality.

    Kavanaugh worked up a vulgar and vicious line of questioning on behalf of Ken Starr against President Clinton. Kavanaugh assisted the Bush legal team in stopping the recount of votes in Florida during the 2000 election. And who knows what legally dubious actions he took on behalf of the Bush administration, especially as it relates to torture? Those records have been hidden from the public.

    Frankly, I don't believe that a man who was photographed chuckling, arm in arm, with Karl Rove has any concept of balance or neutrality. Kavanaugh is a right-wing extremist. His statements of "stability and unity" are just hollow words. Nothing but an act.

  64. And yet there are no issues with a man who put on the white hood had any concept of balance or neutrality.

  65. Dominic, remember also that he has been groomed by his church to believe that abortion is a sin. Should he recuse himself when such cases come before the court?

  66. Thanks to Linda Greenhouse for giving us "context" which extends deeply into our history, and that of the Supreme Court. There is a sense that being faced with this great responsibility, Justices grow.

    And she's also provided more insight: perhaps the dunderheads in the Senate are not so different from their forebears, and we survived them.

    A little ray of sunlight.

  67. This is a welcome and absorbing piece of history by the always exhilaratingly astute Ms. Greenhouse. But Black was nominated by FDR, one of our greatest presidents. Kavanaugh was nominated by DJT, the worst, who has filled his administration with kleptocrats and the most morally spineless assemblage of opportunists I've ever seen.

    Finding hope in this column is like clutching a straw in a maelstrom.

  68. @C Wolfe

    Of what possible use would a straw be in a maelstrom?

  69. We're supposed to hope that this hyper-partisan hack suddenly recants the views and purpose that got him appointed? Not likely.

    Excuse me for stating the obvious, but the fact that redemption is possible does not mean we should make a habit of giving power to those most in need of it.

  70. Ms. Greenhouse "hopes" and many of the commentators "hope and pray" that Kavanaugh will be something other than the political operative he is. And the myth that Kennedy was some sort of "swing" vote was exposed by Senator Whitehouse during the confirmation hearings when he noted of the 73 cases before the court involving corporate interests vs citizen interests, the "Roberts five" voted 100% of the time in favor of the corporations. One can prefer the sunny side of the mountain, but the dark clouds of partisanship will hang over the Supreme Court for decades. There won't be any "come to Jesus" moments for Kavanaugh or anybody else on a court selected and advanced by a minority of radicals in servitude to elite interests.

  71. @JackSupreme Judges and Justices are not supposed to decide cases based upon who is more deserving or sympathetic, or corporate interests versus citizens interests. They are supposed to decide cases based upon the law. And if the law is flawed, it is up to Congress, not the court, to fix it.

    That's what happened in the Lilly Ledbetter case. Congress wrote a law poorly. Lilly Ledbetter lost her case because of that, so Congress rewrote the law.

  72. One can make a transformation in life, but a well of life experiences, empathy and understanding of others, as well as an open mind, are needed. The former nominee can surely coerce himself into some form of openness, but he is handicapped by the very crucible that propelled him where he now sits. His intelligence quotient and hard working, hard partying, hard ambition and hard adherence to a strict line of advancement along his career have not instilled in him the singular quality absolutely necessary in a judge: human empathy and understanding. That, you cannot learn at Yale even if you were top of your class (he wasn't). At best, Mr. Kavanaugh, in my view, has the limited vision of a prep school, frat boy, political hack life experience. He was a federal judge for some time, but that was only the smaller part of his career. The more likely and unfortunate possibility in my mind is that he has a warped vision of the world due to his unusual drinking associations, and doesn't comprehend the least about the strengths, failures and struggles of the majority of people in his own country.

  73. I think one key thing that separates Justice Black from both Justice Kavanaugh and Justice Thomas was a sense of entitlement. Reading the column, I don’t get the sense that Justice Black had educational and professional experiences that would have led him to react to controversy over his appointment in anger, as we saw with both Kavanaugh and Thomas. It was as if they were saying: “How dare someone stand in the way of what I want and deserve; after all, I played the game to win, didn’t I?” Thus, I too hope Justice Kavanaugh may yet rise above the spectacle of his nomination process. Given, however, Justice Thomas’ record on the court and in public since taking his seat 27 years ago, I won’t be holding my breath.

  74. Did anyone in the world besides me notice Kavanaugh's body language during Trump's praise of him during his appointment ceremony. He was leaning forward, shoulders raised, and frowning. He looked like he was getting ready to plow into someone on the football field. Take a look at the video.

    This guy is looking for a fight. He wants to mix it up. He can't wait to get his hands on that big lever of power.

    Kavanaugh displayed the same aggressive demeanor as he did during his performance in front of the Senate. This is who he is, highly emotional and combative. People like that make lousy judges.

    That tells me the likelihood of this episode being a life altering experience is remote. But what do you expect from someone who as guzzelled as much alcohol his entire life as he has. Alcohol is so prevalent in our society that we greatly underestimate the damaging effects it has on us. It fries our brains. It literally damages brain neurons.

    His friends from school said that when he got drunk he became belligerent and aggressive. Has that changed? I'm more concerned about his drinking than his judicial philosophy. Combine the two, and we have a problem.

  75. @Bruce Rozenblit: "Kavanaugh displayed the same aggressive demeanor as he did during his performance in front of the Senate. This is who he is, highly emotional and combative. People like that make lousy judges."

    Did Kavanaugh display that same aggressive demeanor in court? Was his body language while on the bench, hearing and deciding cases, highly emotional and combative? If so, I don't recall any network releasing footage from his previous confirmation hearings to show that.

  76. While Hugo Black's tenure defied his earlier affiliations and confirmed Roosevelt's belief in his appointment, I fear that Kavanaugh will fulfill Trump's aspirations for his appointment. Unless Kavanaugh has a "come to Jesus" moment, I believe he is destined to be the lap dog of conservative thought that he has shown himself to be so far. My only hope, at this point, is that the rest of the court will hold him in check.

  77. @Hla3452 But, as the article pointed out, Black was a lapdog for Roosevelt's policies. So that is somehow okay?

  78. I respect Linda Greenhouse and her fine intellect. I appreciate these hopes. But for me, after the Thomas debacle (an example of someone who has not changed or showed any empathy), the Bush debacle, and now the Kavanaugh debacle renders the Supreme Court as illegitimate.

  79. Thank you Ms. Greenhouse for a recount of a sliver of history that is intended to remind us all that people are unpredictable.

    We are now stuck with Associate Justice Kavanaugh and the implication that his fifth right-leaning seat presents.

    While you suggest that perhaps Justice Kavanaugh will become enlightened, I think he has some pretty big bills to pay (not monetary but perhaps that too). I would be happily surprised if he turns his back on those that hold his markers.

    Instead I hold out hope that Chief Justice Roberts becomes the Kennedy of his generation. This is his court, the Roberts Court. If ever there was a person in a position to help steer this country's conscience, at a time where those controlling the current branches of government seem to have none, it is Roberts. His name will forever be tied to his court, this court. And I hope he begins to realize that perhaps his vote and voice can ultimately save our Union from the spiral into division we are in.

  80. @RichardS -- Well said, sir! I do hope that his Court can upturn the pseudo-biology of Roe-Wade.

    There are far better answers to an unplanned pregnancy than excising our own kind. Blackmun never read the Biology 101 textbook. What a tragedy for the human fetus.

    Help pregnant women in need before, during and after. Don't turn the temporary burden of gestation into the painful permanence of an execution.

    Sure hope Justice Roberts brings justice to this travesty.

  81. Kavanaugh was nominated for several reasons, the most important for Trump being keeping him out of jail.

  82. I would like to believe there is a chance for redemption for him, in as much as in the past there were times when judges did not play exactly as those who appointed them would have wished. I am thinking of O'Conner and Kennedy in my lifetime. And there may indeed be a few cases with virtually no fallout that he decides on from what could be argued as a win for progressives - if for no other reason than that people are complicated or because he might wish to blur the lines of his detractors' arguments against him for posterity's sake.
    On issues like women's rights, gay rights, corporate sovereignty, voting rights, environmental protections, and campaign finance reform, however, I imagine he will do exactly as many of us dread. Kavanaugh is the product of the very idealogical Federalist Society and, if his conduct in his youth or in his last statement before the Senate Judiciary Committee is to be taken as a show of himself, he will make sure that the entitlement of rich, white, conservative, heterosexual (or outwardly pretending to be) men is as safely guarded as a religious relic.

  83. Ms. Greenhouse reminds one also of Earl Warren. The former governor of California was assumed to be a reliable conservative voice on the court yet he, as well as Justice Black, became a force for liberal ideals. I remember as a child I saw many "Impeach Warren" bumper stickers.
    One doesn't hold out much hope for Kavanaugh to change his conservative, partisan leopard spots.

  84. One of the interesting comments that Ms. Greenhouse made was that Justice Black was chosen in order to advance FDR's political agenda; that is, the New Deal.

    It seems that politics have always been a part of the selection of Supreme Court justices. The party that has the power is going to always nominate justices sympathetic to their agenda.

    It was also interesting that:
    " The N.A.A.C.P. asked for an investigation, but a Senate Judiciary subcommittee rammed the nomination through to the full committee after two hours of consideration."

    It was so partisan that they almost had a fist fight on the Senate Floor.

    He clearly lied about his affiliation with the KKK.

    So many parallels. Not much has changed in this process.

    However, though Justice Black was a "tainted" nominee in the eyes of the Republicans he actually became a decent justice.

    I see no reason the same will not be true of Kavanaugh.

    As Linda Greenhouse said, "I hope he does."

  85. @gpickard
    "It was so partisan that they almost had a fist fight on the Senate Floor." Was Linda referring to Democrats fighting one another or Democrats fighting Republicans? There's a big difference if within a political party one has the courage and integrity to stand true to principle rather than party!

  86. I hope I'm wrong but I doubt that Kavanagh will be a Hugo Black.

  87. Personal character flaws we all have and hopefully don't have to defend ourselves like Kavanaugh. Time to move on and judge how he votes, which will be like Roberts, mostly conservative but every once in a while will go liberal to prove to the world how wonderful, fair, and open minded our Supreme Court is. After all, we don't want the world to think otherwise, right? And we really don't want the world to know the truth about how angry we Americans are with our GOP government, and how far they have moved away from democracy.

  88. interesting -- except Kavanaugh is guilty of nothing. There is no corroboration or evidence for the accusation by Ford (or anyone else), and there are issues with her credibility. So....

  89. Over here on the sunset side of the mountain, where we've known guys just like Kavanaugh since grade school, we have no reason to believe that he is anything but the partisan hack the documents would show him to have always been, if they are ever released.

    Like his mentor Kenneth Starr, who could be heard on the radio this week concluding, without evidence or relevant knowledge, that there has been no collusion between Trump and the Russians, Kavanaugh's allegiance is not to "all America." He is all in for anti-choice, pro-corporate interests. He lied repeatedly during his testimony. He accepted the nomination from a criminal tax cheat and liar.

    I appreciate the history lesson, Ms. Greenhouse, but that's just one story from history. The story that relates so much more closely to Kavanaugh's is Clarence Thomas's. It's a story of right wing activism by Thomas, his supporters and his Tea Party wife. And hostility to large portions of "all America."

  90. That's a fascinating piece of history! However, it's easy to judge a man's character after 37 years on the Court. If Black's connections with the KKK had been exposed before he was both nominated and approved by the Senate, I doubt that even in 1937 he would have been put on the Court.

    The parallel to Kavanaugh's situation is similar in that Congress failed to do its "due diligence" in both instances. That at least is the lesson that I draw from Ms. Greenhouse's informative op-ed.

  91. And the smearing of Kavanaugh continues. Comparing being accused with dome shaky abd dome outright false claims is not comparable to being a Plan member.

    Apparently character assassination is the lefts only response to election losses.

  92. @Mike James
    There is no evidence that the allegations were false.

    For Dr. Blasey and Ms Ramirez, also note that they were not seeking prosecution: they wanted to alert the public that t what they saw wasn't a full picture of the man. They wanted a full investigation into his background.

  93. Judge Kavanaugh's highest goal was to become a supreme court justice. Dr. Ford had nothing to gain by testifying. She passed a lie detector test with flying colors. She was 100 percent sure it was Bret who sexually assaulted her and so do most Americans. If Judge Kavanaugh had apologized to Dr. Ford for the pain and suffering she endured due to his immature, indefensible behavior as a teenager, most of the American people, myself included, would have forgiven him, and we would have avoided another ugly highly partisan experience. The problem for Judge Kavanaugh is that by doing so he would have forfeited his goal of becoming Justice Kavanaugh. The best we can all hope for is that Justice Kavanaugh follows the example of Justice Hugo Black and he becomes a force for stability and unity and to become a great justice for all Americans and for all of America, not only for the good of the country but to redeem himself in his own eyes and the eyes of God.

  94. One of Justice Black's later colleagues, Felix Frankfurter, was asked in an interview if being elevated to the Supreme Court "changed a man". Justice Frankfurter replied that if a man's "any good", it does. Although perhaps both the question and the answer sound a bit quaint to our modern and oh so sophisticated ears, Hugo Black illustrated the truth of Frankfurter's observation. Does any foe believe or any supporter fear that Justice Kavanaugh will show himself to be "any good" by this measure? Count me among those who do not believe.

  95. Wow- thanks for unearthing this. History is alive and kicking. Really astonishing to see an echo of right now.

    A question- It sounded like Kavanaugh’s first opinions about immigrants with even the tiniest of infractions following them through maybe years or decades demanding punishment still was another weirdly ironic echo. I may have understood it wrong but history seemed to be speaking directly to him.

  96. Justice Kavanaugh is not tarnished, the democrats are tarnished. What they did to him was despicable and I hope they pay for it next month at the ballot box.

  97. Mr. Kavanaugh was vetted 6 times during his government career and a 7th time after his hearings, and the FBI found no evidence of wrong-doing.

    Dr. Ford, who accused Mr. Kavanaugh of sexual assault, was unable to remember the day, month, year, city or house in which the alleged assault took place, nor how she got to or from her home to the location of the alleged assault. The witnesses she named as being present were, according to the FBI, unable to recall the alleged incident. Dr. Ford has had 35 years in which to bring criminal or civil complaints against Mr. Kavanaugh, but did not do so and has now said she does not plan to do so. She was the Dems' star witness, and her allegations were manifestly unsupportable because they were uncorroborated and lacked even rudimentary evidence.

    As a life-long Democrat I am disgusted with the so-called Democratic leaders and their blatantly phony attempt to derail Kavanaugh's confirmation and tarnish his reputation, an exercise in political theater rather than a genuine search for truth and justice.

    Let's stop this nonsense and focus our efforts on getting out the vote next month and in 2020, the best way to exercise--and achieve--Democratic power. Besides, attacking a sitting Justice can only energize the Republican/Trumpian base and push some independents/undecideds to the dark side.

  98. Perhaps Ms. Greenhouse hadn't yet seen the article about arguments over the treatment of undocumented people in the courts in which Kavanaugh has already shown himself to be more in the tradition of Trump or Stephen Miller and less in the tradition of Hugo Black.


    The fix is in. And I find the tendency on the part of NYTimes writers toward optimism to be frightening.

  99. His questions this week in the immigration case the Court heard had a particularly partisan slant. You may need to hold onto that optimism for a long, long time.

  100. I have a great deal of respect for Linda Greenhouse’s reportage, but I think there is a false equivalency here. Black was a member of the KKK as a young man. I don’t know, but suspect, that, in the 1920s and 30s, a not insignificant number of young, white, Southern men were at some point as well. But what did Black do as a member of the Klan? Abhorrent as the KKK, its principles and its actions are and were, what were Black’s personal contributions? The article doesn’t say. On the other hand, we have decades’ worth of Kavanaugh’s actions as a lawyer, a judge and a scholar to suggest that he is not coming to the Supreme Court with an open mind and without a political agenda.

    I sincerely hope, though, that this gracious article by Greenhouse opens a door for Justice Kavanaugh to look into himself and see if he can yet still become a Hugo Black - someone who can defend and protect the liberties of the poor and oppressed in our society.

  101. It is the human psychology of ego that it is likely that Judge Kavanaugh may go out his way to prove all his critics wrong by becoming a progressive and liberal justice!

  102. A wonderful read.

  103. Wishful thinking, I fear. And not an especially instructive comparison, given that Black was the nominee of a Democrat president, and clearly a supporter of progressive policies, despite a past that should have disqualified him. Were he to have been better vetted, he would have no doubt been replaced with another progressive judge. In his first hearing, Kavanaugh is taking a hard stand against the right of immigrants who have served criminal sentences to receive bail for a deportation hearing, however minor the crime. It's a cruel stand, that would mean that a child born in the U.S., who did nothing more than let's say, throw ice at someone in bar, while in college, could be detained and deported without a hearing. This does not bode well...

  104. Kavanaugh was installed to become Clarence Thomas 2.0

    The damage done by the horrid Trump fiasco continues apace.

  105. While you are correct that you never know how a new member will turn out like with a Black or Earl Warren, more times than not they follow their paper trial when they were on lower courts.

    Also a Chief Justice may be conservative or liberal but side with the other side on some key issues not to make it look like it is totally partisan like Roberts did supporting gay marriage, ACA etc.

  106. Interesting,informative article about Justice Black. We certainly can hope for the best from Justice Kavsnsugh, but what about Dr. Ford? She has and will suffer immeasurable, irreversible emotional and professional damage for telling the truth about Justice Kavanaugh. There will be little, if any, bright side for her or other victims of sexual assault. The way forward is unclear with little sunlight and no effective leader to guide us along this troubled path.

  107. Justice K will vote and write for powerful people and possibly for civil
    rights, sort of like Roberts. Maybe K will help women, maybe he’ll help them and also hurt them. But in any corporate vs individual case he will rule for power.

  108. The problem for Kavanaugh - and tragically for America's 325 million citizens, is that he has been an integral, enthusiastic part - in fact a primary ingredient - of modern American political warfare for 20 years.

    Add in his lifelong membership in the ideological Federalist Society and his angry display and wildly partisan instincts revealed two weeks ago in front of Congress and Kavanaugh has shown himself to be little more than a partisan political hack who is comfortable perjuring himself as is politically convenient.

    In 1998, Kavanaugh urged his boss Ken Starr to question Bill Clinton in graphic, angry detail about his sexual relationship with Monica Lewinsky in what turned out to a seven-year Republican wild political goose chase that culminated in an impeachment for Clinton's erections by multiple Republican philanderers and a pederast in the House.

    In 2000, Kavanaugh was a Bush-Cheney 2000 Florida vote count suppression staff lawyer who helped destroy American democracy and who helped establish the modern Supreme Court as a branch of the Republican Party.

    Later on, after serving the illegitimate Bush-Cheney administration, Kavanaugh's views 'evolved' toward a carte blanche Presidency:

    “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” including the need to respond to civil lawsuits and criminal charges.

    How convenient for the current GOP Scofflaw-In-Chief.

    Kavanaugh is an American disaster.

  109. @Socrates Kavanaugh is a disaster joining other disasters or a disaster joined by other disasters. In either case, Kavanaugh is a member of a disaster-cabal which has consumed three branches of the federal government who know nothing about governing. Something is wrong with government’s insipid oath of office allowing wild packs to run loose. Something is wrong with an electorate who gleefully support having its pockets picked. Imagine having that much cash and not seeking somewhere safe for it. Where are real conservatives who would have kept it instead of handing it to the GOP under Trump’s fake pretense to make GOP wealthy beyond words?

  110. Kavanaugh is an extremely intelligent and thoughtful individual. Perhaps his “trial by fire” has instilled a deep desire to be a great judge. A great Supreme Court justice cannot be a partisan stooge. Sometimes, when the eyes of history are focused on an individual, they rise to greatness. Let’s hope this is the case here.

  111. @WDP
    History says something difference, there is no one, even those who admired someone like Scalia, who would say that Clarence Thomas rose to history or even made much of an impression on the history of the court, other than be a rubber stamp to whoever wrote the conservative majority ruling.

  112. @WDP Well, yes, it could be that now that Kavanaugh has lied, obfuscated, partisan-pandered, and right-ideologically decided cases, and revenge-threatened his way onto the Supreme Court, he will now relax and adjudicate the law fairly, and surprise everyone by how impartial he really is. He will be the new true swing vote on the SC instead of the fifth reliably conservative vote that could doom the US to being "great again" a la Donald Trump's version of the US. Wonderful!


  113. Guilt can do funny things to the guilty. He hired 4 women straight off as if to say see I’m a nice guy. Your can not compare the sins of yesterday to today it’s a different world. Regardless of his innocents or guilt which we will most likely never know his demeanor is wrong. His hate for the democrats was on full display not something you can turn off and put away. This man is unfit but then again the entire court is nothing more then political theater.

  114. An optimist might hope that Kavanaugh will emerge from the one who was appointed to SCOTUS as Trump’s toady. I am a pessimist.

  115. Not one of Justice Kavanaugh's accusers offered one iota of verifiable evidence in support of their claims.
    NOT ONE!
    To the contrary. Their claims of witnesses notably failed.
    How on earth can a writer on our justice system, the Supreme Court in particular, fail to mention this fact while calling Justice Kavanaugh tarnished?
    But keep it up.
    The Democrats seem to have no idea of the anger and disgust they have engendered. With their abandonment of due process and innocence until proven guilty they have told EVERY American that they will destroy us all if we refuse to tow their party line.

  116. @Barooby Who abandoned due process at the hearing were the Republicans, who had created a process by which both witnesses would be questioned by Mitchell. Ford answered all Mitchell's questions, but after she had asked Kavanaugh only 2 rounds, Mitchell was interrupted by the rantings of Graham, who was never gaveled into silence by the chair. In effect we had two hearings: one for the female the other for the male. In short, the Republicans subverted the very process they had created. But subversion of democratic procedures is hardly a recent initiative of Republicans, for their illicit acts were championed by Senator Joseph McCarthy and have been part of their DNA ever since.

  117. When Donald Trump was elected, I saw a neighbor at the gym and she said that she would give Trump a chance, maybe he would grow into the job. I said, he won’t. Donald Trump did not grow into the job, and he has been many times more destructive, incompetent and dishonest than my mind could imagine in November 2016. That brings us to Justice Kavanaugh. Unlike Trump, Justice Kavanaugh is qualified for his new job, so that is a plus. What is not a plus is what Mr. Kavanaugh was willing to do to get that appointment with the help of Mitch McConnell and the current occupant of the White House. Brett Kavanaugh has been a conservative political warrior for years and proof of that in the form of his paper trail was hidden from Committee by McConnell. Brett Kavanaugh lied about the information that was uncovered about his service in the Bush Administration, he lied about his high school and college behavior, his drinking habits, refused to answer Democratic senators questions and treating questioners with disrespect. Lying to Congress knowingly and willfully is a crime, though charges are rarely filed. So this is how he enters the Supreme Court, owing his benefactors loyalty perhaps. Kavanaugh is a card carrying right wing extremist, I expect him to rule that way. Time will tell, but lying casually about little and big things to advance oneself is a severe character flaw.

  118. While this is certainly interesting, the only people “tarnished” in this case are the accusers who lied. No “proof”, not even a reasonable likelihood, has been found, only manufactured complaints.

  119. It's almost too obvious to point out the apples-to-oranges fumble at the heart of Ms. Greenhouse's interesting essay. As she reports, Black's secret Ku Klux Klan link was "conclusively" proven by the Post-Gazette and he confessed to it. Nothing as been conclusively proven about Justice Kavanaugh, beyond the fact that he was pretty upset by the transparently desperate 11th-hour attempt to ruin him, and, unlike Hugo Black, Kavanaugh has not confessed to anything other than drinking too much beer as a young man. Seems like someone accorded the powerful platform of opining in the Times -- particularly about matters relating to law -- should at least be able to demonstrate a rudimentary command of logic. (Let's forget fairness.)

  120. First, Donald Trump is no FDR. And Hugo Black didn't go off on any tantrums and rants insisting that his opponents were fueled by partisan conspiracies. What you are saying is that people can surprise you. True. But to compare Brett Kavanaugh with Hugo Black is the most wishful of all thinking. This is totally different, a time when the president of the U.S. mocks victims of sexual assault and spends his days going from rally to rally because of his desperate need for attention and validation. I think the Democrats view of impeachment is far more realistic, and start with the theft of documents from the Democrats congressional committee. I'd love to see where that goes.

  121. @GMT

    Very true. With a president like FDR Black had his back covered when he ruled in favor of the people. Trump has no moral compass, so SCOTUS is going to be on it's own if the ruling goes against Trump and will have to bear the burden of public scorn at one of Trump's rallys.

  122. I was so ready for the line that being an accused rapist, however, precludes any chance for Kavanaugh to redeem himself as Justice Black seemingly had done despite his murky racist past. Both prospects are deeply disturbing and if Justice Black’s nomination had played out today, it is unlikely his appointment would have endured. Even if Kavanaugh were to evolve into the most fair-minded of justices (which he won’t), the allegations against him, if substantiated, should result in his immediate resignation or removal. I find Ms. Greenhouse’s willingness to ultimately accept Kavanaugh troubling.

  123. Wow ! Thank you so much for this much needed history lesson. Kudos to you for your good work

  124. The new conservative majority consists of one Chief Justice, two Associate Justices, a freshly installed overt political proxy...and one windup doll that hasn't made a sound since Christmas '91

  125. "Black’s nomination in the summer of 1937 was controversial, not only because it was a sharp stick in the eyes of the president’s many political enemies, but because of Black’s limited judicial experience — he was briefly a police court magistrate — and an education viewed as marginal for a Supreme Court justice. Although a graduate of the University of Alabama Law School, Black had never gone to college."

    Maybe Democrats and Republicans alike should look for "less qualified" individuals to be Supreme Court justices. After all, there are absolutely no qualifications listed in the Constitution as to who is eligible to be a federal judge.

  126. @hm1342
    Not less qualified, but certainly with a wider range of experience.

  127. @cheryl: "Not less qualified, but certainly with a wider range of experience."

    "Qualified" is in the eye of the beholder and greatly overused when applied to nominees for the Supreme Court.

  128. And yet, on his first case, Kavanaugh took EXACTLY the expected cold, hardline, senseless interpretation of the 1996 law saying a non-citizen, who might have been convicted of a misdemeanor 50 years ago to be detained without even a bail hearing. Meanwhile, his fellow Trump appointee, Neil Gorsuch, sided with Justice Breyer in questioning just how ridiculous such an application would be.

    I mean it's THEORETICALLY possible Kavanaugh could pull a Hugo Black, but I think it's far more likely that Neil Gorsuch could. It's clear Justice Gorsuch has figured out that whatever Trump thinks or believes, HIS loyalty is to his interpretation of the law and the Constitution as well as the nation, not the President. And that he's untouchable in that position.

  129. Kavanaugh is not tarnished in any manner. Unsubstantiated allegations presented under very dubious circumstances must be tossed aside as a political attempt to block a nomination. Kavanaugh has a spotless and enviable track record and no sketchy unsubstantiated accusations will change that fact ever!!!

  130. @James

    The process of choosing not to release his records and properly vet him and then Trump choosing to change the FBI investigation from "free rein" to carefully excluding Kavanaugh and Ford from being questioned by professional investigators did a lot of damage. Kavanaugh's unprofessional and frankly bizarre rant and facial contortions wont be "tossed aside" because everyone in America witnessed it.

  131. I had forgotten much of Hugo Black's history, so thanks for the look back. I do doubt that whatever propelled Black to such heights of reasoned defense of the poor and the powerless was to be learned in higher education anyway, so not going to college may have been a help.
    I could imagine today's Supreme Court profiting from having a few members who never went to college.
    Personally, I would mandate that it be always equally male and female as well.
    And the line..."pity for unreconstructed dissenters and sympathy for himself who had borne so much in comparative silence", absolute gold.
    Hugh Massengill, Eugene Oregon

  132. Don't count on Kavanaugh following in Black's footsteps. He's more likely to follow in Thomas's footsteps. He's not bright enough to be enlightened.

  133. Hugo Black was an ardent New Dealer, which showed he cared about working people. Reading Kavanaugh's opinions and dissents in labor-law cases shows that he doesn't, and that he is willing to contort logic and defy precedent to rig the law against working people. (Specifically, cases involving a woman killed by a whale at SeaWorld and whether a company could refuse to negotiate with a union because undocumented immigrants were among the workers who'd voted for it.)
    It's naive to expect anything more from him. Like Gorsuch, Alito, Roberts, and Thomas, he was chosen to be a predictable corporate-oligarch hack. The nightmare the people who picked them were trying to avoid was "another Souter."
    Not to mention Kavanaugh's callous ruling in the case of the detained immigrant girl trying to get an abortion.

  134. While we don't know how Kavanaugh will turn out as a Supreme Court Justice, we do know how he got on the court.

    Kavanaugh was picked for the job by a president who guaranteed his supporters that he would nominate justices to overturn Roe v Wade. Kavanaugh has sent repeated signals that he is such a justice.

    Kavanaugh has a proven record of radical partisanship going back more than two decades. He didn't just want to impeach Bill Clinton, he wanted to publicly humiliate him with salacious details.

    Kavanaugh has not matured to become more bipartisan. During the recent hearing he unleashed a tribal rant against Liberals and Democrats alleging his accusers and detractors were seeking revenge for the Clintons, that it was Democratic animus over the Trump election.

    The allegation of his attempted rape of Dr. Blasey Ford is not going away. The whitewash FBI investigation only suggests a coverup of Kavanaugh's drinking, blacking out, misogynistic past, if not present.

    Kavanaugh's lying during the hearings (all hearings going back to 2004) prove both that he has not evolved as a man, but also that he is not to be trusted in what he says under oath. If he cannot be trusted to tell the truth his denials of Dr. Blasey Ford's allegations cannot be believed.

    Others who knew Kavanaugh from his high school and college years substantiate allegations of very heavy drinking. It is likely that more people will step forward over time to tell their stories of his drinking and bad behavior.

  135. I hope your reporting of the past portrays a future for the court that is brighter than we all can see now.

  136. Big difference, however. Black had 'limited judicial experience' and had been a Senator. Kavanaugh, for his entire judicial career, has always sided with the corporation (in over 70 cases, according to NPR). Even to allow one corporation to keep manufacturing refrigerants - proven to destroy the earth's ozone layer, and now finally banned (until Trump finds out and overrules it). Kavanaugh's mind is already made up; any change in his views will be for the worse.

  137. The story of Hugo Black is familiar to all lawyers and to most Americans who read history. He turned out to be an extraordinarily good and fair Associate Justice of the Supreme Court, and Linda Greenhouse writes the story very well.

    Drawing a favorable comparison of Brett Kavanaugh to Justice Black, however, may be wishful thinking, at the very least.

    There are two big differences. First, the fact is that Black never testified at a confirmation hearing, never faced someone he had hurt badly years earlier, never complained bitterly that he was being persecuted by his accuser – even though she had nothing to gain by the accusation, and never was complicit in a phony F.B.I. investigation which the then president advertised, falsely, had proved the accuser wrong.

    The second difference where Brett Kavanaugh fell far short of Hugo Black, is that Hugo Black never went into a public outrage, disputed the right of minority party senators to question him and attributed to them – without any evidence – that they were part of a conspiracy by a former president to seek revenge.

    Many Americans, mostly non-lawyers, considered the claim that Brett Kavanaugh lacks the requisite judicial temperament to serve as a trivial complaint.

    It is not trivial. Kavanaugh lacks the temperament, but Black did not.

  138. @sdw

    I would argue that joining the KKK is excellent evidence of “lacking requisite judicial temperament.” I’d feel more optimistic about a judge with a temper than a KKK member.

  139. It is unfortunate historically, and at the present time, we are so obsessed with what is wrong with the other guy! Most of us do not bother, or are not able, to simply look at ourselves critically. Either we have little ability to do so, or it is simply too difficult.

    We can only change ourselves. That is immutable wisdom, but personal beliefs and frustrations find their way into our efforts to change anyone but ourselves. It is simply too hard to focus on who and what we can really change!

    Imagine how difficult it must be to completely believe in any deeply held value; gradually admit to yourself it is wrongly held; then admit to others you were badly wrong ... publicly! That takes great personal courage, the moreso because so few others understand that kind of moral courage, and will criticize you for possessing it.

    We seem not to have the ability amidst our current tribal focus to listen to one another and hear what is being said, in part because we do not see ourselves as potentially wrong. What is best for a group, be it a family or a community, is what all of them through discourse can agree to: the respect for others to weave together a mixture of separate realities, beliefs and values!

    It is seen as stronger, and is certainly more self-affirming to hold one’s own views, not to challenge them, and to make the other guy wrong. To challenge myself, as Hugo Black did, is far harder and more courageous! That is what we do to change anything: we change ourselves!

  140. Kavanaugh’s determinations while on the Supreme Court may not be so “Black and White” as so hopefully wished-for in this article.

    Yes, he could turn-out to be on par with Justice Black in support of more liberal issues … but he could turn-out to be on par with Kennedy appointment Byron White – who ironically swore Clarence Thomas into the Court.

    White was seen as a disappointment by many Kennedy supporters who wished he had joined the more liberal wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade.

  141. Much as I always enjoy your columns, I think you missed the real point. Justice Black ruled as Roosevelt expected he would. Kavanaugh will do the same for Trump.

  142. Justice Black somehow found redemption and dedicated himself to the awesome resposibilities of the high court and its caseload. Gideon was revolutionary in its impact on the basic rights of indigents to have counsel in criminal proceedings. Wesbury should be precent for outlawing gerrymandering, but the Republican majority on the now politicized court know who butters their bread and will not outlaw this.
    Expectations for Kavanaugh to grow into greatness aren't supported by his background. He is more Scalia than Black, another justice who claims to be able to channel our Founding Fathers to determine what they would do with today's controversies.

  143. It is worth noting that Black admitted his youthful indiscretion and spoke against racial and religious hatred while Kavanaugh admitted nothing and spoke solely of wrongs he perceived against him. What a difference it would have made had he admitted the misogyny that was part of his high school days and spoken against a return to such objectification and denigration of women.

  144. @Jenna Since when is being a member of the Ku Klux Klan a "youthful indiscretion?"

    Recall that Robert Byrd used that excuse, even though he was in the Klan at age 45.

  145. I really enjoyed this piece and had no idea about this history of Justice Hugo Black. People can be redeemed. At least Black admitted he was a part of it, though could have offered an apology. Kavanaugh doesn't seem to be nearly as transparent or forthcoming.

  146. @sunzari
    That's a problem, if he actually did something wrong.
    If he didn't, thought, his behavior is more in line with what would be expected.

  147. Thanks for that 1937 excerpt of a reporter's account of Justice Black's demeanor. It was masterful.

  148. Thank you for this history lesson. It’s extraordinary.

    But it’s unlikely Brett Kavanaugh will follow the example of Hugo Black.

    Kavanaugh has built up a long history of decisions that have established his position as a darling of the Federalist Society. And in his testimony to the Senate, he proved himself to be vindictive, infantile, and resentful. He effectively promised his supporters that he would hold grudges against all challengers.

    This man is more likely to model his behavior to mirror Donald Trump’s belligerence, not Hugo Black’s thoughtfulness.

    It’s optimistic to imagine Kavanaugh might defend anybody’s civil rights. And it’s unrealistic.

    Thanks though for the gleam of hope.

  149. @Deborah..Kavno may not have built up a long history of decisions but he has built up enough dubious ones while in his previous job to have Roberts refer them back to the justices on the circuit court to be reexamined.Oy Vey.

  150. Hmmm, did justice Black give an emotional and partisan political rant that reveAled a psyche questionable for Supreme Court Justice prior to his appointment?

  151. I appreciate the valuable history lesson. I always try to keep an open mind. But considering someone so addled by partisanship to be taken in by the Vince Foster hoax, someone who sees a vast conspiracy in politics when it happens to oppose him, not to mention anyone who would receive or accept a nomination from a racist con-artist who views democracy only as an obstacle or a means to his own greed . . . I am not optimistic.

  152. The difference between Black's positive service and what we can very well surmise will be Kavanaugh's is that Black went with the trend of history toward liberation, equality and justice. Kavanuagh comes on the Court during a period of reversal. He is an indoctrinated child of the Reagan Restoration who in his adult life has experienced, and been in the service of, great retrenchment and counter-revolution, burgeoning authoritarianism at home and abroad, and accelerating economic inequality in the First World, especially the United States. Counter-revolution, oligarchy and theocracy are right in Kavanaugh's ideological wheelhouse - he has been a very useful errand boy for his masters, and I don't see the tiger changing his stripes.

  153. @Rocky

    I agree. In his first SC case this week he has shown himself to be far right of Gorsuch. What will the next cases show about him this docket? I dread to find out.

  154. @Rocky
    This view of Kavanaugh's allegiances -- let alone the direction of American society -- is so extreme it borders on the loony. I find myself wondering if we live in the same country. "Counter-revolution" (did we have a revolution?) "Burgeoning authoritarianism" at home (does Obama's reliance on Executive Orders, Memoranda and "Fact Sheets" fit into this? -- he governed more unilaterally than ANY previous president. Then that frightening list of rightwing horrors: oligarchy and theocracy. Kavanaugh fits into the tradition of conventional American conservatism: he is not the heir of de Maistre or Mussolini! This piece shows how far paranoia has gripped the left.

  155. Linda's essay proves a human being has the capacity to change, in some cases bringing about their "better angels."
    It somehow is a hopeful sign.

    But let's not forget Justice Black wrote Korematsu.

  156. Consider the source: Justice Black was chosen by Franklin Roosevelt. Justice Kavanaugh was chosen by Donald Trump. I sincerely doubt “Bart” will have any sort of social conversion.

  157. An interesting note that did not appear in the article is that membership in the Klan in 1920s Alabama was pretty routine if you wanted to get anywhere in politics or civic life. Not excusing it, just noting. Also, although Black was undoubtedly key in matters of racial equality and civic freedoms, by the time he retired, he was a conservative member of the court, as the times moved in more liberal directions.

  158. With the new religious Supreme Court, we're in for thirty years of backward toward a second Dark Ages. However, there is hope. In the near future, we will program the human mind in a computer, and this will be based on a "survival" algorithm, which will provide irrefutable proof of how we trick the mind with our ridiculous beliefs about just what is suppose to survive - producing de facto minds programmed for our destruction. When we see this, we will begin the long trek back to reason and sanity.
    See RevolutionOfReason.com

  159. This is outrageous. And disgracefull. And unbecoming of Ms. Greenhouse.
    None of Justice Kavanaugh's accusers offered ONE IOTA of verifiable proof of their claims. NOT ONE IOTA! Their proffers of "witnesses" pointedly exploded in their faces.
    The only people "tarnished" by the Democrats' "nakedly political" attacks on Justice Kavanaugh are the Democrats and their howling mob.
    History will not be kind to Feinstein and Harris and Booker and their cohorts.
    Justice Kavanaugh rightly quoted the Bible: They have sown the wind and will reap the whirlwind.
    They will rue the day they decided to assassinate the character of Justice Kavanaugh.

  160. The evidence was always there but the FBI was not allowed to look at it.

  161. @Barooby I absolutely believe in the "after confirmation continuing investigation" which all patriotic Americans will insist upon in the case of Justice Brett. The joyless joke of Kavanaugh's vetting, pre-confirmation, will have to be carefully added to and enhanced with new truths, until the nation, doubting Kavanaugh's suitability for the bench as we mostly all do now, is satisfied that he really isn't what he appeared to be during the SNL style senate hearings...if for no other reason than to shame him with the truth, in order that he not let all his nastiness hang out when he opines and the Court votes.

    Barooby likes a man who quotes the Bible: "Thou shalt not bear false witness". Brett, take note.

  162. I believe Earl Warren was another progressive surprise.

  163. We saw from the Clarence Thomas hearings that aging, white, male senators chose Thomas over a black woman, humiliating Anita Hill in the process. So racism can be overcome when the nominee is black. I predict that Kavanaugh's sexism, misogyny, and deep animosity combined with religious conservatism will keep Kavanaugh to the narrow commitment he has made.

    Kavanaugh and Trump will never change. That path is set. They ensure ongoing white male power by their entrenched views. Combined with the Religious Right, 81% of whom voted for Trump, the future looks dire for any moderation in our Supreme Court justice. The animosity, rage, entitlement, and temperament are too engrained for any new understanding to enter his mind. Besides he owe's Trump and the GOP too much and loyalty is all to them. Kavanaugh will be a loyal servant of patriarchal powers. Alas.

  164. I never knew this about Hugo Black but have always understood the he was a great justice who protected civil liberties. The chance for Kavanaugh to be a great justice is slim to none. His "what goes around comes around" judicial philosophy is pure Trumpism. What he did to Christine Blasey is unacceptable, he did lasting damage to another person. He should resign.

  165. My grandfather, Ray Sprigle, was the reporter who broke the story of Hugo Black's Klu Klux Klan membership, and won the Pulitzer for investigative journalism. My mother remembers that he received death threats after the publication of the story.

  166. Wonderful article and thank you for bringing up the history of Justice Black. I don’t know what will become of Justice Kavanaugh. In the age of “instant opinion” where everyone knows almost everything that is happening on the planet in a matter of seconds, Justice Kavanaugh’s opinions and decisions will unfold over a lifetime.
    What will be on everyone’s mind who watched the proceedings last week will be “which Judge Kavanaugh will Justice Kavanaugh turn out to be?”
    We all turn out to look back on our youth in most cases with a certain degree of shame and regret for things we did when we were just “stupid” and inexperienced. Hopefully Justice Kavanaugh will have learned from these experiences and go on to have a great future. But what about what Dr. Ford went through? Will her personal tragedy just be swept under the carpet? Her wounds will never heal until the full truth of what happened is exposed. That could take more than a lifetime.

  167. @Eric Cosh Don’t hold you breath waiting for Clarence Thomas 2.0 to change his stripes.

  168. Except that Kavanaugh was falsely accused and Black was not.

    This makes any comparison to the 2 irrelevant.

  169. And how on earth was he "falsely accused "?? There is PLENTY of evidence showing the opposite!

  170. @Philly

    Actually we do not know that.

    We do know that neither Kavanaugh nor Ford was allowed to be interviewed by professionals in the FBI by none other than the guy who nominated Kavanaugh and the "results" were related to what was allowed by Trump.

  171. It's worth noting that when Black retired, his seat was filled by Lewis Powell, a conservative who nonetheless joined the liberal wing in many cases, including Roe v Wade.

    Then when Powell retired, that same seat was filled by Anthony Kennedy, a conservative who nonetheless joined the liberal wing in many cases.

    And now Kennedy has retired, and this same seat, once Hugo Black's, is the one in which Kavanaugh now sits.

  172. Hope springs eternal? I’m not certain, but this is an instructive tale.

    On the one hand, it shows how the process has always been at the whim of the Judiciary Committee.

    “... the Senate Judiciary subcommittee rammed the nomination through to the full committee after two hours of consideration.”

    On the other hand, it shows that displaying some spine and confessing to transgressions is not necessarily a disqualifier.

    While Hugo Black didn’t expand on his reasons for joining the KKK, he also appeared to have replaced his rationale with a new world view that was beneficial to all Americans.

    Ultimately, while Kavanaugh’s deeply partisan rant gives me little hope, it also shows that people can evolve their views and values.

  173. Those who do not study history are doomed to repeat it. With the country caught up in a maelstrom of invective and partisan nuclear war during this century, I often wonder what the historians of 2070 will write about today's times. And will their writings be studied? More importantly, will their writings be heeded?

    Will another Hugo Black emerge...Black who demanded school desegregation now after years of recalcitrant south.
    Will another Harry Blackmun emerge...Blackmun, diminutuve and mousey looking, who wrote one of the most important decisions of the Warren court. Will John Roberts become a towering figure, who like Earl Warren, changed with the times and forced the country into heeding the rule of law.

    It appears to me, that history will be repeated.

  174. @athenasowl...I stand corrected, Blackmun wrote on the Burger court.

  175. I'm skeptical. However, all we can do is wait and see just how far into Trump's pocket Kavanaugh is. It's one thing to be approved and nominated by FDR, a great humanitarian who brought the country together. It's another thing to have the approval and nomination of Trump who is a sleazebag, misogynist, narcissist, divider of the nation and operates the U.S. government to make himself and his cronies ever richer. If Hugo Black aligned himself with FDR's civil policies, will Kavanaugh align himself with Trump's egotistic, materialistic, science-demeaning goals?

  176. The comparison between Hugo Black and Brett Kavanaugh is superficial, at best. Black’s potential disqualifier was affiliation with a racist group while Kavanaugh’s was both alleged and observed conduct. The observed conduct was Kavanaugh’s hearing performance, during which he screamed, cried and demonstrated extreme political bias.

    On the contrary, Black admitted his prior affiliation, resigned from the group, publicly denounced its objectives, and proceeded to rule in favor of racial inclusiveness and civil rights throughout his career.

    Kavanaugh has steadfastly denied any prior misconduct and has gone at lengths to paint himself as a moral angel despite overwhelming contradictory evidence. These denials show someone who values self-interest far above the requisite honesty and integrity for a potential Supreme Court Justice. Unfortunately, unlike Ms. Greenhouse, I can only see the sun setting behind the mountain.

  177. @Eric Fisher It's utterly amazing that the left's hatred of Kavanaugh is such that he is now compared unfavorably to a former Klansman. And Kavanaugh never sought to "paint himself as a moral angel"; the opposite is true, as he repeatedly said that he sometimes drank too much. And yes he was angry at the hearing because he was being falsely accused, among other things, of being a gang rapist.

  178. @Eric Fisher When he was a Senator, Hugo Black engaged in conduct that most Americans would today find contemptible and disqualifying--vigorously opposing anti-lynching bills.

  179. @Eric Fisher actually, as the article states, Black did not apologize and publicly renounce the KKK. "Affiliation with a racist group" is putting it mildly -- it was an affiliation with the most dangerous terrorist organization of the early 20th century, a terrorist organization responsible for countless murders. To compare Kavanaugh (who's no boy-scout himself) to somebody like Black is frankly shocking.
    That Black saw the light and turned out to be one of the better judges in the court's history does not change the fact that it was shameful that he was ever confirmed in the first place given his history.

  180. the impregnable fortress of life tenure,

    How perfect is this description of so many fears...........

  181. Ms. Greenhouse,

    With respect to your views, Mr. Kavanaugh does *not* have the things that Hugo Black did: a sense of introspection, or a shred of decency in viewing those he considers his "opponents".

    His confirmation showed he has neither. His actions, that some foolishly call "youthful indiscretions", (that others characterize as repeated sexual assault) tells us he is inept in looking inward and finding fault.....it's always someone else...."liberal groups" or "the Clintons" or "the media".

  182. I thought Justice Kavanaugh was innocent of all those charges. This Yale law professor likes to suggest, mind you she just makes a silent suggestion, that he isn't innocent. I suppose this means that Linda Greenhouse was convinced by Fr. Ford's remarks, and that's enough for her. God help us.

  183. Just as you were convinced by Kavanaugh’s remarks, and that’s enough for you. God help you. Don’t you see the pattern?

  184. While there are some parallels my take from this is just because Hugo Black had lied to Congress about his past affiliation with the KKK and turned out to be a civil libertarian is irrelevant. He lied and should have been impeached if he would not resign.
    I believe that Kavanaugh also lied to Congress. We supposedly have a process to vet Supreme Court nominees. If the argument is that just because they lied they could still turn out ok Is wrong for so many reasons.
    If the argument is that the vetting process is fallible, that may be true, but it's the only process we have so lets do it right.

  185. When it comes to human behavior, there's never a guarantee that we can accurately predict the future. This is why we have to assess job candidates based on their PAST performance, not on wishfully thinking they'll turn out alright in the future.

    It's a welcome surprise that a former member of the KKK turned out to be one of the Court's greatest defenders of civil liberties. But if Hugo Black's connection with the Klan had been exposed during confirmation proceedings, it would have been RIGHT to deny him the seat. Likewise, Kavanaugh may yet surprise us by transforming into a staunch defender of Roe, Obamacare, voting rights, limits on presidential and corporate power, and so on. But we shouldn't grant jobs based on our hopes, we should grant jobs based on candidates' records; and his record shows little likelihood that he'll stand up for those things.

    The shadow of the sexual assault allegations, and his deceptions and intemperate partisan behavior during the hearings, should also have disqualified him. Whether or not Dr. Ford's claims are true, surely there are many other candidates (including many FEMALE judges!) for whom this would never have been a problem in the first place. But we all know why Trump chose to stick by his man; in addition perhaps to fellow-feeling for an accused predator, he's betting that Kavanaugh will help protect him from any fallout from Mueller's investigation. And so the rotting of the republic proceeds apace.

  186. @Jason - Spot on. Case in point, Gamble vs. United States, currently on the Supreme Court docket. While the Kavanaugh confirmation hearings were going on, in September, Senator Orrin Hatch, a member of the Senate Judiciary Committee, filed an amicus brief in this case that will consider whether the dual-sovereignty doctrine should be overturned. This exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. According to Hatch's brief, he wants the doctrine overturned. Kavanaugh was confirmed just in time for the SCOTUS hearings on the case. If the dual-sovereignty doctrine were overturned, then it's possible that a pardon by Trump of any of his associates who were convicted on the state level might protect the associates from further prosecution by the atate.

  187. @Jason The "rotting of the republic" is on schedule as McConnell's rush for Kavanaugh's appointment is connect to the October Scotus Docket and the case that states any pardoned person shall not be prosecuted in any of the states;designed to protect 45 and to strip states of their rights is something Kav will support as he is Koch trained;on Sen.Murkowski did research on the Judiciary Code of Conduct which requires a judge to always be impartial & unbiased & that even the appearance of bias disqualifies a candidate for the bench;Kav's violent, conspiracy based, revenge tainted,dredging up the Clinton rant, showed not only is he partial AND biased HE HAS HELD THESE PREJUDICED VIEWS FOR A LONG TIME; based on Kav's own behavior she determined he was not the candidate because he did not meet the requirement of the Judicial Code of Conduct.

  188. @Jason
    Kavanaugh lied with the full support of the chairman of the Committee and the majority leader. They did not blink when he lied about a number of things and most importantly his abuse of girls.
    That is what Republicans do these days. Sad, but true!

  189. Sorry, but this is a false equivalency.

    Excerpt from Kavanaugh's embittered and vengeful tirade:

    "... And as we all know, in the United States political system of the early 2000s, what goes around comes around...."

    As a woman who was in an abusive relationship, I don't take kindly to threats and never will. He should be impeached.

  190. to be optimistic, but Justice Black was, like BK, part of a political movement, only his was toward increasing rights and equality through law.

    BK was bred to undermine all those rights from his school boy days, and I can't imagine that he views his appointment as anything but a stepping stone in his movement's quest to demolish the new deal and all right's increasing laws that came after it. I can't imagine he believes that he will learn something new as he sits to hear cases; something that might expand his world view.

    BK will, like Scalia, Thomas, Alito et al. torture language, distort plain meaning of words until they can be made to create laws that empower the powerful, and demean the common man. At least Scalia was smart and an original thinker in coming up with his erstaz "originalist" perspective. The rest of this bunch are fully indoctrinated, and are actually unable to create opinions that weight laws and interests solely in light of the facts of the contending parties to a suit, nor be able to weigh the interests of the nation without having a heavy thumb of "movement conservatism" on the scale.
    Most lawyers I know would be embarrassed to be told they can't come up with original arguments, but 5 members current supreme court are on a mission to think and act in ways that were proscribed for them. It is a sad time for the law, and the society.

  191. Kavanaugh is 'tarnished', just like Hugo Black was? How far have we come as a country when 35 year-old (or was it 36?) unsubstantiated, politically-motivated charges of sexual misconduct as a teenager are compared to admitted adult membership in the KKK?

    Trump was right to apologize to Justice Kavanaugh, the Justice did experience a 'campaign of personal destruction'. And it seems as if it will continue.

  192. @JB

    Rape or sexual assault is usually not done in public.

    If the woman raped by Brock Turner had not been rescued, that too would be unsubstantiated.

    We could follow the lead of the Saudis and require a male to testify, and then if the woman gets pregnant because of the rape imprison her for being immoral.

  193. @JB - it's your claim that the charges are politically motivated which are unsubstantiated. Considering that Dr. Ford first made these claims to her therapist years ago.

  194. @JB I don't care a rat's behind what Justice Kav did in high school 35 years ago, only about his character today, and his performance at the hearing was as disgraceful as is dismissing Dr. Ford's testimony as politically motivated. I'm with ex-Justice Stevens.