To paraphrase - I knew Hugo Black. Hugo Black was a friend of mine. And you Justice Kavanaugh, are no Hugo Black.
42
The main difference between Black and Kavanaugh is that they both lived two extremely different lives throughout their lives.
Kavanaugh was born into a rich family with no struggles seen in his path. He has a very good reputation because of all this.
On the other hand, Black was the total opposite. He was born into a poor family and had to fight for everything he got. Black going to be a captain in the army, but he was never sent.
The difference between the two are clear and you can really see how bias opinions can lead people to lean the other way.
6
We know the end of the story now. However, a sad note remains. Black did not resign even after the public learned of his KKK membership. After Black addressed the nation, most Americans did not believe he should resign. That was, however, a different time with mores that we no longer find acceptable. In particular, at that time the civil rights of black Americans were hardly protected at all.
One difference is that most Americans think Kavanaugh is unfit, and should never have been confirmed. They thought so before his confirmation and believe it still. Trump's gloating has exacerbated the divide. The accusations are now indelibly imprinted into the public consciousness, next to the memories of Mr. Thomas who we now knew did everything Professor Hill described and more.
At the hearing, Kavanaugh looked about as fit to be a Supreme Court justice as Mr. Trump was to be president. The accusations and testimonies did little to change that impression. Will Kavanaugh be a justice for all Americans like Trump has been a president for all Americans? Kavanaugh's histrionics, dishonesty and rank partisan rage are a black cloud on the horizon.
The comparison of Black and Kavanaugh is troubling but infinitely less troubling than the comparison between the accused justices and the accusers. Hill was telling the truth, and we suspect the same is true for Dr. Blasey. Hill and Blasey were paragons of bravery, probity, and veracity. We need folks like that on the Supreme Court.
19
Has anything truly changed?
BLACK LIED.
Roosevelt almost certainly knew Black had been a KKK Member, as did Black’s supporters in the Senate. If they truly weren’t aware, they obviously chose ignorance, given the “rumors” were apparently not very difficult to confirm.
So whathappened when he was caught? Apparently there was brief majority opposition. And then (copied from the piece):
“Black conceded that he had joined the Klan and said he had resigned before he became a senator. He neither explained his decisions nor apologized for his membership. In fact, in Professor Leuchtenberg’s account, “He spent the first third of his remarks cautioning against the possibility of a revival of racial and religious hatred, but he warned that this might be brought about not by groups like the Klan but by those who questioned his right to be on the Supreme Court.”
Black didn’t apologize for his Klan membership & I assume he failed to publicly repent for his deceit (the passage doesn’t make the latter clear).
Black then engaged in classic fear-mongering by demonizing his “victims,” those that were deceived by him & his supporters as well as those ever harmed by the Klan.
If those malevolent forces that dared to question Black’s RIGHT to a SCOTUS position were to prevail - those that believed in honesty & justice - then the nation might be plunged into “religious and racial hatred.”
Entitled men - a Senator & President, along with a pathetic electorate, conquer all.
14
Dr. Christine Blasey Ford has done for the court what no one else could do. For 27 years now, Justice Clarence Thomas has had to carry the burden of his appointment like a heavy yoke around his neck. Now, however, he looks almost like a choirboy compared to the allegations against Justice Kavanaugh. No one else could uplift that burden from Justice Thomas more than Dr. Ford has done.
4
So Ms. Greenhouse, in whom the Times entrusted coverage of the Supreme Court for so many years, despite her strong foundation in liberal ideology, puts a feather in Judge Black's cap for eliminating prayer in public schools as a violation of the Establishment Clause of the First Amendment.
Putting aside the question of whether prayer should be banned in public schools, is there anything clearer than that this prayer ban had nothing to do with the intent of Madison when he wrote this amendment.
Jefferson and Madison were both genuinely frightened by the prospect of the central federal government intruding on the lives of the people of their state. The establishment clause existed merely to prevent the central government from designating any particular religion as the official state religion, as England had selected the Anglican religion and France Catholicism.
If Ms. Greenhouse wants to congratulate Justice Black for voting to eliminate prayer in public schools, let's make sure that she is not praising him for enforcing the First Amendment religious clauses in the way that their author attended them to be applied, but for enforcing them to support the belief of him and his supporters that organized religions should always be opposed by the state.
3
"Black’s limited judicial experience — he was briefly a police court magistrate...."
One of the things that makes for great Supreme Court Justices.
These characters who wind up on the Court after two decades of being judges is often a detriment to the nation. Their clerks can research the law, but equity comes from living in the real world.
3
Interesting recapping the story of Hugo Black. Hopeful last paragraph about Kavanaugh.
Yes, I too, hope that he will be a good one, for the sake of our country. Nonetheless I find it unforgettable about his demeanor at his second hearing: his facial expression was uglier than that portrayed by SNL, his partisan attack on the Democratic senators who by constitution have not only the right but the duty to question him, his evasiveness to questions not to mention his combativeness against those who were trying to carry out their constitution responsibility.
I hope you are right, however, in your hope.
10
Michael Cohen registers as a Democrat in latest break with President Trump
" you'll have to ask my lawyer "
2
There is a misunderstanding in the US legal system that allows this kind of chaos to occur. Many people see two levels--Constitutional law and Federal Law--when there are three levels. What is oftentimes left out is Universal Law, which is where we get our unalienable rights to be able to create the life we want, to be treated fairly and equally, and to have a voice in our government. Universal law stands on seven principles--equality, liberty, freedom, compassion, abundance, capacity and tolerance. The first requirement for conflict resolution is that both sides must be considered equal, and so for a fair trial, there must be equality under the law. Justice Black probably was a religious man, and he bounced back and forth between God's Law and the KKK, and he eventually chose to uphold God's Law, but what about Justice Kavanaugh? Does he see all people as equal?
4
Kavanaugh is not tarnished.
The Dems on the senate judicary committee are for the way they shamelessly used Christine Ford as a political pawn. They should have said to her: sorry about what you say happened to you but without any proof this is a case of she said / he said. Then they should have said goodbye. Instead they gave a national platform to someone making serious allegations when she had not one shred of evidence and a story with more holes than a 50 pound wheel of swiss cheese.
10
Kavanaugh's membership that should give us pause is not just membership in the Republican political party (like being a member of the KKK) but being one of his party's driving forces and leaders, beginning with his work on the Starr Commission in which he repeatedly reamed President Bill Clinton for sexual transgressions that were far less condemnable than his own, purely for political advantage, where he whipped up anti-Clinton fervor, and crippled his presidency. Kavanaugh's hateful political work with Starr was so successful that Al Gore distanced himself from Clinton in 2000, and then Kavanaugh got busy selling the US Supreme Court on a one-off political decision to stop a Florida recount, a federal imposition in a state law matter for which there was no precedent. Then Kavanaugh became a primo political hack in the Bush White House advancing other political hacks to judgeships, supporting Bush's war crimes, and then with Republicans Senators' help keeping that political work secret during his recent confirmation hearings. Kavanaugh is not just a member of a political party; he is one of its Grand Wizards, carrying his political torch proudly, and ready to light crosses on fire in Democratic yards while upholding all of his Republican party's pet causes (discrimination against gays, forced pregnancy and childbirth, minority voter suppression, torture, killing pollution regulations, enrichment of corporations and wealthy etc) now he's on the bench for life.
19
This is a somewhat restrained essay compared to much of what appears in the NY Times. It is a welcome respite from essays that constantly demonize Judge Kavanaugh.
Kavanaugh is far from a perfect human. But we simply don't know what happened 36 years ago because memories have faded, and there are no witnesses to the alleged event, except for Kavanaugh and Blasey, one or both of whom may have been drunk. Many women have been certain of their assailants only to find that he was exonerated later with DNA evidence after having spent much of his life in jail. Mistake happen. We cannot be certain of the truth in this case.
We need to move on. Democrats need to learn how to lose with grace. The end does not always justify the means.
10
" In both cases, late-breaking allegations threatened but failed to derail the confirmation process"
to
" In both cases, cynical and deceitful Democrats contrived late-breaking but uncorroborated allegations that were leaked to co-conspirators in media from a single witness with no supporting evidence, which threatened but failed to derail the confirmation process, thus frustrating the progressive left yet again"
5
Judge Kavanaugh is tarnished you imply? How so? By a leftist professor who played on his Olde friends book regards teenage drinking and blackouts turning it into a near Fool-proof , but vague, METOO kind of accusations against this good man? Wonder how attorney Finch would have silenced that accuser in “To Kill a METOO Bird...?”
7
kavanaugh's past speaks for itself: prep school brat who can't be trusted to serve anything but those who put him in power. the truth will surface - someday.
15
Hey, the pope before Francis admitted to being a Nazi Youth
Though no proof that he threw a piece of ice at a fellow
young drunk seminarian.
He or she without teenage sin, cast the first stone,
and/or your comfortable elected position.
In God We Trust. But all politicians take cash.
3
Eisenhower railed about what happened to Earl Warren, who suffered a Major Conversion when he realized what a thug he had been.
But Kavanaugh is not likely to change his spots. With all due deference to those who allege they suffered at his hands and the hands and culture of his friends and the nation:
Kavanaugh didn't say "I did some bad things when I was younger, and know better now, and fathering daughters has made me realize how wrong I was".
Adult Kavanaugh LIED about his past. He repeatedly refused to answer questions, only saying things like Roe is precedent, which means nothing, He lied about meaning of HS slang, and what he had done, the dear virgin. He still likes "beer, and, you know" - NO WE DON'T know, what or quantities - weed use and even experimentation with hallucinogens would be expected of an intelligent, interested human. Sexual abuse, Not. Why the FBI coverup?
If he was not lying with his frequent references to church, prayer, faith, he may well put his own deity ahead of the Rule of Law.
This threatens the minority faiths of this country, and little things like the court's attitude to a woman's right to control her body, the dangerous concept "personhood" of an embryo or blastula. If there is a deity controlling reproduction, It is the greatest abortionist of all time. Something like only 1 of 3 fertilized eggs implant, many self-destruct within a month & natural miscarriages/stillbirths/deaths of newborns exceed deliberate abortions.
11
Dear Ms. Greenhouse,
Time to take off the rose-colored glasses. Yes, it is true that some Justices do grow into the job. But none of those came with Federalist Society endorsement. None went out of their way to make threats against their opponents. Starting with Reagan, the right-wing presidents tended to vet their nominations much more closely -- they didn't want another Brennan or Warren on the Court.
Another shortcoming in you analysis is that Black hadn't already strongly established a racist judicial philosophy -- whereas Kavenaugh has gone out of his way to make sure that the Federalist Society and their ilk knew exactly where he stands.
Add to that his rabid statements at his second hearing -- and his many lies.
Before you write another such column, you should do your homework. It is not possible to read the opinions the Kavenaugh has written, and think that there's a snowball's chance in hell that he's going to anywhere to the left of Clarence Thomas.
13
Well, I only know that at my age, I'll never find out where the other shoe lands, or I'll have to 'come back' from wherever to do it. Someone send me an email, please?
6
There is a difference here between Black and Kavanaugh. Black admitted his membership in the KKK. Kavanaugh admitted nothing and then whined about being a victim.
26
I am 71 years old....watched the Anita Hil hearings and the Kavanaugh hearings in totality and have followed the women’s movement for more years than I like to admit. I applaud your optimism regarding Justice Kavanaugh, however, I must side with Mark Twain:
“At 50 a man can be an ass without being an optimist but not an optimist without being an ass.”
Hope I and Mr. Twain are wrong!
12
Uncorroborated allegations should not be allowed to "tarnish" anyone. The implications otherwise would be terrifying for all.
9
I get it-now Kavanaugh is compared to a racist. You people at the NYT can't get over the fact that Hillary lost. She was going to win in a landslide and guess what....America spoke. They don't love Trump but they like Hillary and what she stood for even less.
Justice Kavanaugh has a very distinguished public record. I'm surprised to see Linda Greenhouse stoop this low.
7
There is another way in which Justice Kavanaugh may follow Justice Black.
In 1965, in Griswold v. Connecticut, about access to contraception, the Court established the right to "marital privacy". This and other cases viewed the right to privacy as a right to protection from government intrusion and was one of the cases referenced in Roe v. Wade.
The Court's vote in Griswold was 7-2, with Justice Black dissenting. Black believed there was no basis for the right to privacy in the words of the Constitution.
As a conservative and an originalist, as Black was, Kavanaugh could reference Black's dissent in future cases regarding Roe.
7
There is one massive difference between the two men:
Hugo Black's life was about group activism, first with the Klan and then as a civil libertarian.
Kavanaugh is 100% self-absorbed. We saw it on fully display at the hearing. He had been wronged! Everyone was out to get him!
Kavanaugh is a narcissist in the true sense of the word. Kavanaugh wouldn't join a cause greater than himself unless a keg was involved.
7
Perhaps Greenhouse can offer us a series of Lessons for [Justice] Kavanaugh From Other Tarnished Supreme Court Justices?
How about Earl Warren as the next Lesson for Kavanaugh? You know. The guy who signed the internment order that banished thousands of Americans to concentration camps during WWII. The guy who was supposed to be a solid political appointment, but who so disappointed in his role as Chief Justice that the President who nominated him called Warren the worst mistake he ever made.
Abe Fortas would be a good Lesson for Kavanaugh. There are surely dozens of others who would offer morality tales that would inform Kavanaugh's tenure.
As an added bonus, just the mention of Justice Kavanaugh's name in The Times riles up the Choir and fires up the ad click meter.
Come to think of it. That might be the real lesson from this article.
As the old saying went: "As a young man Hugo Black wore white robes and scared black people and as an older man, he wore black robes and scared white people."
Then again, there's another old saying: "Lightning doesn't strike twice in the same place."
1
There’s a suffocating stench of white male privilege entitlement emanating all over this Kavanaugh controversy. From the reckless frat-boy school behavior flaunting crude disrespect as a creed of doubtful honor to the feigned indignant ‘how dare you’ protestations, denials, and even threats of a judge caught lying. It stinks to high heaven and McConnell should be ashamed for deliberately foisting this travesty upon the nation! What goes around comes around
5
Brett Kavanaugh’s Owen recent words regarding his understanding of things:
“What goes around, comes around.”
That sounds more ISIS than Ivy League.
11
The NYTimes commentariat must be composed of the most brilliant people in the world. After all, even though they don't know know him at all and probably haven't read a single decision he's made - (or maybe have never read a supreme court case), they can foresee what the will do in the future as a justice on SCOTUS.
And they know for a certainty what he did 36 years ago with Dr. Ford.
Amazing. What geniuses we have among us.
4
“What goes around comes around!” - B. Kavanaugh 9/27/18
If those aren’t the words of a sophisticated and nuanced thinker and respectable civil libertarian, I don’t know what are. (NOT!)
6
I think Black, when he was a Senator from Alabama, was also the leader of the group that killed the anti-lynching bills in the Senate.
6
So why wasn’t this little piece of writing thought of and published during all the turmoil of the hearing. It’s of no use to anyone know.
1
To Paraphrase " Mr Kavanaugh, I did not know Hugh Black, but you sir, are no Hugo Black. While Black may have worked out, this is a very different time. And Kavanaugh is not able to be impartial in favor of policies he opposes. He demonstrated that at his hearing.
7
Unlike Black we have the tape of the hyper partisan, conspiratorial laden and vengeful expressions culminating in a threat what goes around comes around. Kavanaugh born, bred and career shaped for the Court will not disappoint his benefactor or the Federalist Society.
6
I totally disagree with Linda's misplaced optimism that Brett Kavanaugh will change his views and become a great civil libertarian, like Hugo Black, on the Supreme Court. Kavanaugh has way more than just one strike against him in this regard to make some sort of miraculous conversion into a fair minded and impartial Justice. The first of course was the totally unhinged, searing statement he made during his confirmation hearing about a vast, well-funded, left wing conspiracy being waged against him as revenge for the Clintons, the 2000 election of Bush and the 2016 election of Trump. Most ominously though, saying "What goes around, comes around." implying Kavanaugh would seek revenge of his own if put on the Supreme Court. Alternating between seething rage and crying, anyone doing this on a job interview would have been rejected. Most of Kavanaugh's legal career has been as an extremely partisan political hack. He worked with Ken Starr to impeach Bill Clinton and was a co-author of the final report. He has repeatedly lied under oath, about not giving legal advice to Bush on torture, or denying that he knowingly received information stolen from Democrats, that he used while helping to appoint Republican judicial nominees, about drinking excessively when he was in high school and college, about knowing people at Trump's law firm, about the definition of words he wrote in his yearbook, like the Devil's Triangle (a sex trio) or boof (anal sex). He will be a Clarence Thomas clone.
12
Hugo Black being on the supreme Court shows the depth and breadth of the Democratic party's ability to hide their racism while practicing it.
6
The Kavanaugh and Black cases have vague similarities but are not the same at all.
Kavanaugh told us once that, "it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land." But then he had also contradicted that statement in a secret e-mail (NYT). The important question is not what other legal scholars might think, but what does Kavanaugh think! And he misled Sen. Collins with similarly vague statements.
Kavanaugh also said during his confirmation hearings that "birth control methods could be considered 'abortion-inducing drugs.' " Scientifically, that is ridiculous stupidity and ignorance.
So we know how he will vote on every opportunity to overturn Roe v Wade and even on restricting or making all forms of birth control illegal.
He SAID those things! Anyone who might consider those statements to be the basis for a 180 degree pivot on women's right to control of their bodies or couples to be capable of family planning is delusional and beyond stupid.
9
... And as we all know, in the United States political system of the early 2000s, what goes around comes around."
- Kavanaugh
Clearly Linda Greenhouse is capable of recognizing various threats.
What compelled her to overlook this one.
And that Kavanaugh – unlike Hugo Black - did not apologize, nor will he.
2
My Supremes determine justice not law so cases like Carter vs Attorney General of Canada started with the law being legal and constitutional and ended with it being voided because it was unjust.
Your laws are written for privileged white males and I cannot think of any worse justices than Thomas, Alito, Roberts , Gorsuch and Kavanaugh. I did not think it possible to find any person worse than Thomas to put on the Supreme Court after I watched his confirmation, he was an angry aggrieved and partisan lawyer who knew it was precisely because of the colour of his skin that despite being unqualified and ill suited to the task was put on the court but you found Kavanaugh who was entitled by his birth and certainly not by his wisdom and temperament.
Our Supreme Court proceedings are philosophical not political. I don't know which are the conservatives and which are the liberals. I know they are all Socratic and both the justices and the lawyers for both sides are committed to truth and justice.
I love your country and am not hopeful for its future. We are the most conservative nation on the planet but our conservatism begins and ends with if it ain't broke don't fix it. Our conservatives are not hate mongers whose power rests on their ability to divide and conquer. I am a democratic socialist but conservatives are not the enemy they are a constructive and loyal opposition. Our most vitriolic dispute is between American style fascists and our old time constructive conservatives.
4
Hope, 'tho badly strained, abides.
Saul of Tarsus come to mind...
3
Much more likely that Kavanaugh will turn out like Thomas: bitter doctrinaire right-winger. The fig leaf is off, the court is nakedly partisan.
25
Kavanaugh showed his true colors in his disgusting partisan performance before the Senate committee. His tenure will in all probability be interlaced with numerous motions for recusal involving political issues, including anything having to do with the Democratic party.
Black's only taint was that when he was barely an adult, he had some sort of membership or affiliation with the KKK, but that ceased when he became politically active. Kavanaugh's rant of a few days ago took place in his middle age.
There is no hope for him, however much he seeks to apologize for or sugar-coat his recent rants.
9
How can Linda Greenhouse possibly Justice Black to Kavanaugh? Black admitted that he was a member of the Ku Klux Klan. Kavanaugh lied outright during three Senate Hearings in 2004, 2006 and 2018 regarding his activities in the Bush White House. While the Republicans "plowed" his nomination through, the majority of the country did not approve of him. Kavanaugh will be impeached in 2019. SCOTUS will be demeaned by the process and his presence.
5
I doubt very much that Black pitched a fit and screamed and blubbered over a calendar ( Which had on it the 4 names that Dr. Ford had said were at the party where she suffered attempted rape as well as fear of dying with his hand over her mouth) I doubt that Black would blubbered over a calendar because he father read the first calendar he himself kept when Brett was 15 at Christmas. Oh God I hope I do not tear up too.
I saw Brett's martyred and angry frown when Trump was apologizing to him for getting caught. How dare we ever criticize these princely whelps? How dare we?
They are our betters and do not forgive anyone who tries to stop their pillaging and attempted raping. His look said it all, that a women, even from his own kind, or perhaps because she came from the same circle had dared to question his suitability.
He should apologize to her and so should Trump and that so should all the GOP. especially War Lord and hideous Mitch and the baby faced killer, who is a white single male. Was that an advertisement on his part?
Oh and let us ask the Japanese people who were in camps during the war, what may be left of those poor people, let us ask them how they liked that.
I know Black did incredible things, but that was a very, very bad thing, Oh wait, they were not white, so of course in this day an age, Black will be applauded for that ruling.
5
Kavanaugh had an opportunity to be better than the several instances of sexual misconduct of which he was credibly accused and which he relentlessly denied. A thoughtful, careful, aware candidate would have recognized the grievous, serious political and gender divide that exists and would have used that opportunity to present the best possible version of himself by respectfully calling for unity, among other things.
Kavanaugh did not. What we saw was either his true nature - immature, impulsive, politically loyal - or we saw a show, a very practiced show. Either tells us what we needed to know about him. With many other candidates available for consideration, only one conclusion fits - Kavanaugh was not fit to be a justice of the US Supreme Court.
6
Only in the New York Times just about is it we can get an opinion piece by someone with impeccable credentials & with contemporary sincerity like this. Wow. Thank you.
We all hope for the best, too.
Very simply, if Kavanaugh makes a similar transformation, I'll eat my very large Tilley Hat!
1
It will be interesing to see how long it takes before things blow over for Kavanaugh. Will it be like outrage over a mass shooting that is forgotten in 90 days? Or will it follow him for decades? Given our attention span, I'm frankly suprised that Clarence Thomas' past is still remembered but perhaps that's because he hasn't done anything notable that people can point to.
3
The situation is not quite comparable, '"Black obtained his nomination and confirmation by concealment and thereby deceived the president and his fellow senators, especially the latter.” A Gallup poll found that 59 percent of the public believed Black should resign if the charge was true.' I don't think there was any concealment at play with the Kavanaugh nomination--it wouldn't have mattered because the president, himself, is a serial abuser and the GOP majority, well they swallow any toxic brew that 45 gives them.
I can't imagine a beatific gaze such as Justice Black's from the bench from our newly minted Justice. Having seen his righteous-albeit-vindictive fury in the hearings, he will mete out retribution as his daily pound of flesh for all who he views as his detractors. Justice is not blind with this court. How will Roberts correct for this?
2
Become a great civil libertarian?
Libertarian, sure (in the sense of mutual-aid safety-net destroying Libertarianism).
Civil, not so much (if his self-righteous, sneering temper tantrum during his last hearing date is any indication of how he is behind the scenes).
2
As a " the keg is half full" kinda gal myself, I hate to say L. Greenehouse that your article fails to consider the key difference between Kavanaugh and Black: the president appointing each to the bench.
1
Ms. Greenhouse, with all due respect, your words are those of an enabler.
I believe Kavanaugh lied. Repeatedly. He represented himself to be as entitled as the underage drinker and possible perpetrator of sexual assault of his youth. He took no responsibility; instead projecting and attacking others.
The position we should be taking, as concerned citizens of a democracy, is to continue to fervently seek the truth, not enable the lies and the liar.
5
Having lived there in the from the late 50’s through the late 80’s, the fact that Hugo Black, a white lawyer in Alabama prior to WWII, was a member of the Klan in his younger years is hardly surprising. It would be surprising if he weren’t. That he rose above that ignoble start is a testament to his critical thinking. Yet despite that rise, he wrote Korematsu. It is likely that Justice Kavanaugh will write opinions that will, on a rare occasion, upset the Right; it is less likely that he will abandon his known positions on the core issues dear to that base of supporters. His blistering (and sometines belligerent) dissents on the DC Court of Appeals demonstrate no support for his assertion that he would be “…a force for stability and unity.” His completely unsubtle attempt to obstruct Jane Doe in Azar v Garza shows “…justice for all…” is not one of his judicial skills.
8
There is no “lesson” here unless you are a self proclaimed pedagogue. Kavanaugh is his own man who is more than capable of handling his future. However, what I find more interesting is the similarities in the two men’s confirmations. In a nakedly political move by Roosevelt his plan failed to add additional justices to the court in order to out vote his opponents. Not so with Trump. The Democrats attempt to ram the nomination through the committee post-haste just as the Republicans tried this time. Both times the other side “besmirched” a man’s reputation. While the press totally denounced both men as unacceptable only to be shut down by the public and Congress itself.
And as with America’s military foreign aggressions, Washington has become a political war zone.
It’s not how many points you score, as long as I win.
2
You are such a talented writer, always educational and informative, and a joy to read always!
1
With over 34 years on the Court, Linda could only site four opinions by Black. And of course all cherrypicked to his advantage. May I suggest you not believe everything you read as being complete and fully factual.
1
I wish I could be so optimistic, but Kavanaugh's remarks at his first case opposing hearings for detained immigrants with long-past minor offenses, a position that startled even Gorsuch, do not suggest that he has any inclination to moderate.
4
Thank you! Every other Thursday isn't often enough, Ms. Greenhouse!
October 11, 2018
The great cultural equalizer is that we live as much in our own world of identity and biography and then operating at the Supreme Court Bar - the world is drawn in a configuration of nine bodies and with legal narratives that albeit historical - all nine will have to construct the light and playing field that conforms to the court's chosen adjudication and thus we have a will by all participants to draw a verdict that may or may not be contextual to any one of the nine and their vote - yet indeed result by mathematics and so the rub to evoke Shakespearean dramatically to decide and who say, did, and why, what and for the will to overturn or celebrate as we the audience that is asked to live by such regalia - so be it - for you and all of us....
1
It is almost a certainty that in some not too distant Supreme Court decision Kavanaugh will conspicuously part ways with his conservative brethren to join the liberal faction in forming a majority. It could well be in a case freighted with symbolic content but ultimately of little real consequence.
This surprising departure from form will be hailed by his political supporters as conclusive proof of Kavanaugh's integrity and judicial independence. Middle of the road observers will cautiously express hope that a corner has indeed been turned, that the sobering obligations of high office may have matured and deepened his thinking, that an ugly episode in the nation's history has been surmounted.
Whether one views Kavanaugh as an unjustly accused public servant or as a psychologically flawed dissembler, there can be no doubt that the man himself truly aspires to be regarded by his peers as a capable, honorable and unbiased professional. And if the Democrats regain control of Congress, he will also seek to discourage an impeachment investigation. So how better to put corrosive doubts to rest than to deviate publicly from the pattern of partisan expectations?
The ultimate test of such a putative exercise in judicial integrity will be whether it actually signals emergence of new pattern of behavior or exists in lonely isolation as an outlier. If the latter, then it should be regarded as no more than a clever but superficial stratagem to repair a damaged public image.
3
shortly after the 2016 election, dave chappelle took the same approach to trump in his SNL monologue - give trump a chance. he has since apologized for that. re: kavanaugh, i'll just skip past the hopeful stuff to accepting that he is everything he has shown himself to be: partisan, probably dishonest, and of injudicious temperament. no apology will be necessary.
5
Your description of Justice Black's great opinions is most interesting - but let's not forget that Justice Black also wrote the Korematsu case upholding the internment of Japanese and Japanese-American citizens shortly after the country entered World War II following the bombing at Pearl Harbor. The Korematsu case was a disgrace to the Court, as everyone from the current Chief Justice on down has acknowledged. I just hope that Justice Kavanaugh doesn't write his own Korematsu.
7
Of course these writers cherrypick the positive. It takes the rest of us to discover and disclose the whole picture .
Hugo Black's ardent support of the New Deal meant that he leaned toward progressive change and altering the status quo for the average person. Judge Kavanaugh's political and judicial leanings are in the opposite direction.
While he may pick an area of law and distinguish himself, it will in all likelihood be consistent with his right wing politics. Wall Street might find him a brilliant jurist. Or like Thomas, he might decide that the law of the first Gilded Age should apply to protect the greed and avarice of the New Gilded Age.
In either event, what we saw is probably what we will get, a right wing ideologue bending the law at every opportunity to favor his right wing patrons.
2
drspock, agree. Just as President Roosevelt was doing when he got Black on the bench.
Thanks for this historical exception.
Things are different now. Elections matter to our safety, health, and happiness -- especially in the Judiciary. See
https://www.legalreader.com/elections-why-you-should-care/
3
In this case hope does NOT spring eternal. Trump is no Roosevelt and Kavanaugh is no Black. History will NOT repeat itself. The indoctrination that Kavanaugh was subject to through the Federalist Society is much more sophisticated and lasting than Black ever was subject to by the rancid and hateful stupidity of the KKK.
130
Let's see, Black was picked to further Roosevelt's progressive agenda, with very little judicial experience as precedent, Kavanaugh was picked to further the conservative agenda, with mountains of judicial experience in his past.
I suspect Kavanaugh has very different ideas of what being a great justice means. I suspect it will look like being in the mold of Scalia.
I would put more hope in Justice Roberts than Kavanaugh.
4
Let's hope that Kavanagh becomes aware of the Hugo Black history and is moved by it.
1
Whether (now) Justice Kavanaugh will listen to the "angels of his better nature"; what, in fact, that nature is; and what his "angels" are saying, are, of course, unclear.
As a young man, Judge Kavanaugh, like me, had the benefit of a Jesuit education based upon the mandate to help others and to seek God (justice/fairness) in all things.
Will he take from that education those Jesuit principles or, instead a Catholic strict adherence to dogma--the punishing ruler on one's knuckles or the light of right?
1
Kavanaugh is a Taker who opportunistically grabs what he wants, like Trump.
Lechers and leopards don't change their spots.
4
The turning point for Justice Black was when he acknowledged the truth and then set out to do his job. Change is always possible, but I see nothing in Justice Kavanaugh's history to support the hope that he will follow this path. He continues to lie about the obvious and act as the partisan he has always been.
3
I had hoped for the same thing with Gorsuch, but early results don't support my hope. The tragedy is that it's probable that both Dr. Ford and Judge Kavenaugh were expressing their subjective truth.
Kavenaugh, even if not experiencing a post binge blackout, may have simply forgotten what was a cruel joke, with no attempt to rape the victim at all. His claim to be a virgin until his twenties is a statement under oath that could be felony perjury if refuted by any woman who swears she had a relationship with him.
Both political parties, and their supporters, are using this meeting between the two teenagers, (to K something forgotten, to CBFord, a frightening incident that is seared into her memory) to vanquish the other. Dr. Ford's life has gone on, and so had BK until their rather anodyne meeting of 1982 become a battle in our escalating cultural -political war.
Even if what Ford said is absolutely true, there is no evidence that what she described was attempted rape, in the absence of other proven attempts by the accused. It was the current Democrats who were "screwed" by what was done to Judge Garland .
I have doubts that K would have mellowed, anymore than Thomas has. But any chance of this happening will be lost if the drumbeat of accusations of his being a drunken reprobate escalates from the Democratic side. He does have the position. Giving him the benefit of the doubt now, would seem to be the most rational move by Democrats.
1
Dear Linda,
Your lesson on Hugo Black is far the most encouraging thing I've read since Kavanaugh's election. Shows us all what we must look for &, if necessary, work for.
Pays to know a few things about history.
2
Do I dream that Kavanaugh will fool all his critics and turn out to be a real mensch; a wise & compassionate guy who serves as an advocate for all of us, not just the wealthiest & whitest? A guy who has an open mind & an ability to grow and to learn? A guy who will do "We The People" proud as our Supreme Court Justice? Of course I dream this dream.
Do I actually believe that Kavanaugh is simply going to ape his mentor Trump & behave eternally like a spiteful vindictive troll? Yup. 'fraid so.
6
Kavanaugh said yesterday that the government can deport legal immigrants for committing a misdemeanor 30 years ago, even if they served their time and were law-abiding people with children and grandchildren that are citizens. In other words deport the non-white elderly.
A monster is a monster and is not Hugo Black.
The Court is on a collision course with the People.
1
“My goal is to be a great justice for all Americans and for all America.” —Kavanaugh
"... I pledge to every citizen of our land that I will be president for all Americans..."—Trump
Yep. Sure.
7
So by what you said, I suspect you are a Supreme Court watch dog that follows every Justice’s opinions and votes. What has been your scorecard on all the current Justices since their appointments? Don’t hesitate as you should have that readily available.
My guess is that it is a sure bet Kavanaugh will vote a lot more like Clarence Thomas thanlike Hugo Black.
And the Federalist Society thinks so, too.
6
Lovely karma lesson for Trump if Kavanaugh gained some humanity from his confirmation process and voted progressively. Most likely, Kavanaugh assaulted Dr. Ford and conveniently forget due to drinking or was too shamed in front of his daughters to truly man up and apologize - letting his destiny slip through his fingers. Imagine the good he could have done to take responsibility and give the country, especially our antiquated Senate, a lesson in courage, letting the chips fall where they may.
How unkind to compare Kavanaugh, who denies a decades-old, poorly remembered, uncorroborated sexual assault allegation, to Justice Black, who was proven to have lied about his involvement with the KKK during his confirmation process. Those who prefer the "sunny side of the mountain" should wish Kavanaugh well.
7
Interesting there's no mention of Black's authorship of the Korematsu decision here, arguably the worst, most racist decision of the 20th century.
10
But Hugo Black wasn’t a mean drunk, a belligerent loudmouth, and an unrepentant, irredeemable right-wing extremist with the ethics of a rattlesnake.
So I’m not holding my breath to await Brett Kavanaugh’s transformation into a protector of the weak, vulnerable and impoverished; or an advocate for equality, voting rights, womens’ reproductive rights, consumer and environmental protection, or anything else that falls beyond the strict confines of his lifelong, mean-spirited, strongly held right-wing dogma.
1
Except for Korematsu. And that's a big exception. I live in a house that was once owned by Nisei who were rounded up by the U.S. military and imprisoned in an internment camp. Black's deference to executive authority over the rights of American citizens is, I fear, shared by our newest Supreme Court justice. I don't share your optimism, but I hope you are right Ms. Greenhouse. and that Kavanaugh hews more to Justice Black than to Thomas. I read and appreciate your insightful commentary whenever it appears. Thank-you.
1
This whole thing has left a bad taste in our mouths. Particularly the aftermath where Senator Collins can say essentially the same thing Senator Hatch did.....she must have been confused, it certainly couldn't have Brett. No comment on that.
Tuesday, just a few miles from where I live Trump gives Senator Feinstein the patented: "Lock her up treatment." No mention that in Dr. Ford's testimony she explained how she'd contacted the Washington Post first on her own and it was the newspaper that contacted her. My state's senator, Mr. Sasse was the first to go on the attack about Senator Feinstein part in the way the story became public. Few have even mentioned that.
As more information becomes know the FBI's sham investigation will become more and more clear. The desperate attempt to stop an unworthy addition to the Supreme Court failed for the second time in twenty seven years. Not all of us people in red states are Republicans, but we see the damage the Republican have done to the country.
5
I don't see him evolving in any way. The whole point of outsourcing our judiciary to the Federalist society is so conservatives will never get "another Souter." He was groomed for his very lack of adaptability.
4
I have made countless serious mistakes in my personal and professional life, and I am only somewhat redeemed by the extent to which I have openly and honestly admitted my mistakes (something Donald Trump could not possibly grasp or understand, and it sadly appears that Kavanaugh understands no better). We cannot possibly judge Kavanaugh on the claims of Ms. Ford or others who claimed sexual harassment, as neither his nor their stories can be proven so many years later. However, there are other equally compelling reasons to doubt that Kavanaugh can serve our highest court with dignity. The letters from the ABA, thousands of law professors, and numerous classmates should not be taken lightly, but have been completely ignored and dismissed by the Senate and President.
So.....If and when Kavanaugh admits that his anger and emotional outbursts during his Senate appearance were completely at odds with the requirements of a judicial temperament, if and when he admits that he lied numerous times under oath, and if and when he admits that his overtly partisan (and consequently inappropriate) beliefs were on full display during his testimony, I will accept the possibility of an honorable tenure as a Supreme Court justice. I sincerely hope to be pleasantly surprised, but so far I have seen only a victory dance, and nothing approaching the honorable and appropriate admission of his errors, none of which are minor or irrelevant to his role.
2
Both Justice Black and Justice Kavanaugh belong to two different times.
The circumstances that drove to final confirmation of the two justices are also different.
Justice Black admitted to being a member of the Klan. Also, as mentioned in this Opinion, Justice Black served the Supreme Court for 34 long years, becoming a great civil libertarian.
Justice Kavanaugh has said that he will be independent and impartial. That he will be a great justice for all Americans and all America.
In the coming months and years, we may be able to learn more in these same columns of the NYT.
1
When will Clarence Thomas change from a conservative. I remember what Maya Angelo wrote when Thomas was confirmed that we all should give him the benefit of the doubt. My benefit has run out and my doubt persists. Everyone can change and Thomas throughout his early years changed from a Black Student Leader and Black Panther sympathizer to a white power advocate.
5
Kavanaugh seems more like “double down” type. No surprise considering who appointed him. I’d love to be proven wrong but I’m not holding my breath.
3
Linda, you are the eternal optimist. But I think you are looking at Kavanaugh with rose colored glasses. Justice Black’s early involvement with the Klan was despicable. But unlike Kavanaugh, Black admitted to his Klan involvement. Kavanaugh admitted to no wrongdoing. And - perhaps more importantly - Black was appointed by FDR - one of our greatest and perhaps most progressive of Presidents. Kavanaugh, in the other hand was appointed by Trump, one of the worst and most regressive of Presidents of all time. While Black never publicly indicated he would serve FDR’s agenda while on the Court, Kavanaugh and Trump’s public statements (not to mention his record on the D.C. Circuit, make clear that he sees himself as someone who will get even with his & Trump’s opponents -“what goes around comes around.”
4
Perhaps Black's behavior is explained by the controversy surrounding his confirmation. He was chastised by a youthful transgression. He felt required to moderate his behavior to address a wrong doing. Kavanaugh on the other hand shows no such penitence. According to him, he was a perpetual choir boy and remains a victim now.
Anyone who has ever been a high school boy knows Kavanaugh's profile. He is one hundred percent lying through his teeth. I don't need evidence or due process. I was a high school boy once. Kavanaugh is a liar. I therefore don't expect him to be chastised by this outcome. He's probably feeling vindicated and empowered. That's not a good thing for future Supreme Court rulings.
4
@Andy
Dear Andy,
Kavanaugh is accused of lying but so far no proof has come forward in the media as it did with Justice Black.
Justice Black did not apologize either nor did he explain why he had joined the KKK, he just said he had resigned.
I was a high school boy once myself and I am not as certain as you are from that experience that Kavanaugh is lying about his behavior towards Dr. Ford. On the other stuff, probably.
I negotiate contracts for a living (40 years of it) so I have some sense of when people are telling the truth or not. The Blasey - Kavanaugh conundrum is just that to me. They both had moments when I believed them and other moments when I had doubts.
Bias and partisanship can cloud our judgment. At least I know at times it does cloud my objectivity.
All the best.
GP
2
Dear Andy, Black’s actions were no youthful indiscretions. He was a 37 year old lawyer and Klan member for at least two years. However, he did not hesitate to enlist help from Klan leaders in his successful race for the US Senate in 1926. He was also an ardent anti-Catholic throughout his life. He never apologized for either.
And as you accuse every over-fueled-testosterone teenage boy you also are accusing their girlfriends as being less than honorable. As you continue to perpetuate that all men are beasts.
But let’s face it. This author did not use a very good example to compare with Kavanaugh.
There is no “Lesson” here. As each Justice has proven over their life time on the court, they can evolve and come to look at things differently.
Many thanks for another informative article. But isn't this also an indictment of what people do in order to get what they want? Hugo Black likely joined the KKK as a means to advance his standing in the community, as I am certain my grandfather did, because that was what white men did in Oklahoma during the early 20th century. So Brett Kavanaugh talked trash about his female contemporaries, drank until he was blind drunk, and most likely carried out sexual assaults on his female contemporaries. Because it was the thing to do, behavior which bound a tribe together.
It will be interesting to see how this all unfolds - whether Kavanaugh's behavior was a true reflection of how he viewed women or whether it was inspired by desire to impress his tribe. Justice Black was apparently no racist at heart based on his record. My grandfather however was a racist through and through until the day he died.
2
I'm sure there's a word from the realms of philosophy or rhetoric that would identify the flawed nature of the argument set forth here, which amounts to little more than an excuse for Kavanaugh's awful behavior, both proven and unproven, by offering an unreasonable "hope" that he will somehow change his ways after getting handed a seat on the Supreme Court. Like Black, Kavanaugh for most people will become a dusty name in a book, though his rulings will outlive him. I don't like panaceas, so hold out little hope that Kavanaugh has it in him to be anything more than what he revealed himself to be, a man who puts his own career over the well-being of the court and the nation. If Justice Kavanaugh has any sense of decency at all, he will be asking Trump to stop mocking Blasey-Ford in public at least as well as to stop using his hearing and appointment to feed the hungry rabble easily roused by misleading political rhetoric at his pathetic rallies.
1
Only Hope was left when Pandora opened her box, unleashing all the world's evils.
Hope is pointless without the evils.
Hope regarding Kavanaugh-- and the ideologically radical conservative court--is not pointless.
"Conservative" conserves the good old days of feudalism. Politicians and judges are vassal knights in King Trump's court.
That's one sense of knight's "errant"--judged by post Enlightenment values--those politically correct.
1
Eleven Needed Changes:
-- The Supreme Court needs to be increased in size. (At its present size, the Justices are still one member shy of being able to daven as a minyan.)
-- Lifetime appointments should be eliminated. Ten years is plenty enough.
-- The over-reliance on Harvard and Yale Law Schools must be ended. Too much drinking and other anti-social behavior in both places.
-- The Court needs a few non-lawyers alert to social and economic issues in the country. Bartenders, marriage counselors, school teachers and cops would be useful additions.
-- The Court should cease its virtually total reliance on Federal Judges. Adding a few Police Magistrates and Juvenile Court Judges to the mix would be good start.
-- The Court should televise its hearings.
-- Slavish devotion to precedents in business cases should be
discontinued. They grant far too much power to the highly monied
segments of society.
-- Males and females should be represented on the Court in roughly equal numbers.
-- The Court should be moved to Taos, New Mexico or some other
distant location far away from the debilitating political influences of Washington D.C.
-- The Court should be granted the power to directly remove Presidents who display clear-cut evidence of erratic behavior and physical or mental decline.
-- No more 5-4 decisions.
3
In a fair comparison, the equivalent to Black's membership in the KKK would be Kavanaugh's heavy drinking and misogyny in his younger years. People can grow out of binge drinking and I'm sure his wife has a had a few things to say to him about his yearbook entries.
But though we might not wish it, Kavanaugh has spent his entire adulthood engaged in partisan political behavior, submersed in the the narrow ideological paradigm of capitalist deconstruction of the safety net, which arguably is the reason he holds to a judicial philosophy of "originalism."
A philosophy of "originalism" is what true zealots of unrestricted capitalism adopt in order to prevent laws of any kind being made which might impinge on the abilities of the oligarchs to grow rich at the expense of everyone else. Originalism is adopted -- not because as a philosophical method it has intrinsic appeal -- but as a hammer by which to smash the belief that the Constitution has anything to say about the modern world, thereby exempting giant, abusive, environment-destroying trans-national corporations from regulatory attempts designed to apply meaningful restrictions on what would otherwise be monopolistic behavior.
5
This nomination was deliberately rammed through by McConnell without due process and jurisprudence the same way he refused to consider Obama's supreme court nomination arguing that a year remaining in his presidential term was insufficient time ... in both instances a veritable blatant GOP hi-jacking of judicial process.
1
@John Townsend
Dear John Townsend this is very much the what happened with Hugo Black. To quote the article,
"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."
Did FDR and the Democrats highjack the judicial process?
2
Linda Greenhouse offers optimists and Kavanaugh a model for redemption, championing the legacy of jurist Hugo Black. Greenhouse compares the Kavanaugh nomination and Court appointment to the controversy over Black’s; in her telling, the primary difference is that "the issue was not sex but racism."
Ms. Greenhouse, the origin of our issue(s) with Kavanaugh's character is not sex. It is sexual assault.
I have been a partner in sex, and a victim of sexual assault. The experience is in no way the same.
The difference between sex and sexual assault is something too much of our country seems not to understand. Please, Ms. Greenhouse, do not conflate them, as Kavanaugh did.
Sexual Assault is not Sex. It is Assault.
4
The sexual abuse allegations against Kavanaugh are not going away. The GOP stranglehold on the the FBI ‘investigation’ was a blatant effort to squelch evidence strongly suggesting that
the GOP was and is still hiding something. The truth will emerge eventually. Besides, in addition there are lingering perjury allegations as well. This Kavanaugh controversey is far from over
4
Okay, interesting. But if I read correctly, the uproar/scandal about Hugo Black's elevation by a Democratic President to the Court was Democrats fighting with Democrats within their own party over the moral/ethical suitability of Black who was also a Democrat. At issue were the moral principles that the party stood for. It was not about political power at any cost. So how is this anything like the shameful behavior we just saw with Kavanaugh's party?
2
@RR
Dear RR,
You are right it was not partisan per se, but FDR needed someone who would rule for the New Deal, so it was absolutely a political battle, just as was the Kavanaugh nomination.
1
How could this article about how Justice Black was a great civil libertarian not even mention his authorship of the Korematsu decision, which upheld Japanese-American internment during World War 2? That would represent a pretty grievous exception which would need to be dealt with for the thesis to hold water. You'd expect better from Greenhouse.
127
@John Leffers Wow - I looked that up - thanks for calling this to our attention - I've read many other comments - and others have not mentioned this. I wonder if Linda Greenhouse knew?
@John Leffers
As soon as Korematsu was posted Black realized how awful it was. He went to Justice Douglas's chambers and said "Bill, we have to undo this." They did so. It was a hysterical time and many regreted their acts. Some, even today, Ann Coulter, hail it as a success.
Does Kavangh he the stuff to be a great judge as was Black? I doubt it but let's hope.
2
Black response was due to public pressure. Not of convection otherwise he would not have made his well reasoned opinion. Let’s face it, these Justices are not apolitical nor do they live in a high tower.
1
“My goal is to be a great justice for all Americans and for all America.”...
It is worth mentioning the world also gathers inspiration and 'forward thinking', from America's Supreme Court. The rest of us now hold great hope for Judge Kavanaugh.
1
@mat Hari
No, sir. "America" does not hold hope regarding Judge Kavanaugh. White Trump Supporters do.
The remainder of us cringe at the thought of a second GOP Justice who faced credible sexual misconduct before being rammed through to the bench.
Perhaps Kavanaugh and Thomas can form the "Anti-#Me To" coalition.
3
Justice Black recovered from his mere white background by using a vital legal brain less rooted in prosperity. One of these justices is disabled from vociferous partisanship and mean white lifelong prosperity against which AA has no help. Justice Black accommodated to the warp and woof of life and broad horizons. One prays that Justice Kavanaugh open question is not hopeless. He is rowing against fierce rapids. One wishes him well. First look for a sign of battling. If he does not battle, the contest is over. He will continue losing, and the Court and people will have lost a resource the way the White House has lost. The American people need wellness in the Court, not paper chasing. Lawyers recognize open questions from thinking issues in law school, and we have one.
If Kavanaugh goes on to do great things for women he will be doing these things at the expense of Dr. Blasey Ford. If women who have been sexually abused did not have to put their energy into dealing with the effects of the abuse they may have had the energy to work towards becoming supreme court justices.
7
The unwritten qualifications for the Supreme Court are now pretty well set in stone. One must be a graduate of Harvard or Yale law school. One must have worked as a Supreme Court Clerk. One must already be on the US Court of Appeals bench. For Republicans one must also be approved by the Federalist Society. With this being the accepted path, there isn't going to be much surprise or variance from that person's prior record.
5
yes, and we could all win the lottery too...it's just not very likely.
6
Putting aside the allegations that Kavenaugh tried to rape a woman, his demeanor and actions during the hearings show him to be unsuitable. When he was asked whether he ever drank so much that he blacked out, he turned the question back on the senator. "Did you?" Is that the way he ran his court? If a lawyer asked a question a witness didn't like, he could just accuse the lawyer of the same behavior. He was abrasive, he yelled, he cried and best of all brought his high school calendars as proof. Did he think we expected him to write in his calendar that he tried to rape a girl? Only an alcoholic would speak so lovingly of beer 29 times.
Clarence Thomas has tainted the court and hasn't been a champion of anything other than sleeping on the bench and failing to ask any questions for years at a time. Our court doesn't need another tainted Justice dragging down its integrity. Trump has shown he doesn't know any of the best people. In the last two years, he has fired almost everyone. Unfortunately, he can't correct this grave error. The GOP is backing him up on his lack of judgment.
7
"From your mouth to God's ear", as my grandmother said.
2
Justice Kavanaugh has was born and bred to be exactly what he is. His is a widget on an assembly line out of a factory that manufactures such objects, and rigorously tests them before letting them loose in the wild. There is no discernible wiggle room, and therefore little probability that he shall surprise us. That would be like Clarence Thomas doing so. Good luck with that.
9
Linda Greenhouse, describes how Hugo Black grew as a jurist and human being on the Court. She says BK may grow like Black did, even though there's no evidence that BK has had any emotional growth since prep school. In fact, BK has progressed in his career by burying his soul and by ignoring his conscience. That's why the Right supports him -- he's malleable.
Every year, BK is a stronger adherent of Right wing ideology. Also, he more forcefully denies he has a problem with alcohol. For decades now, in and out of the court room, BK has done his best to reward the Rich for being rich and to punish the Poor for their poverty.
BK's history manifests that it's highly unlikely he will grow in office like Hugo Black did.
3
Thank you for sharing your thoughtful perspective. I like the surprise side of the mountain also.
2
The "sunrise side of the mountain," indeed.
The better comparative questions would be: Given how the Supreme Court appointees of Republican presidents from Nixon on have ruled, is Kavanaugh likely to be an outlier?
The evidence of those rulings is that we should expect Kavanaugh to be a force for good, applying the law equally to rich and poor, men and women, white and black, sometime around never.
3
Thank you for this valuable history lesson and for offering your optimism, even in the face of the undeniable differences between Black and Kavanaugh. Justice Black is not the only justice who was transformed by his tenure on the bench. When real students of law come to the highest court, even with what appears ironclad ideology, they come to appreciate the real life consequences of their decisions and the grip of their ideology inevitably loosens. This tendency is particularly true of some of the past conservatives. Empathy serves a justice well, even though critics of this valuable human trait was ridiculed when Justice Sotomayor was nominated. I too hope that Kavanaugh evolves, but I am less optimistic than Ms. Greenhouse, particularly in light of his years of being part of the hyper-partisanship of the GOP, not to mention his frightening partisanship screed during his confirmation hearing. Nevertheless, a softening of Kavanaugh's conservative leaning would not only make him a better justice, it would confirm that even someone like him has empathy and can learn from the life experience of those not as privileged as he has always been. He will also better reflect the ideals of those whom he was chosen to represent: the American people.
1
@SNA
Furthermore, Kavanaugh has never tried a case, as a judge or a lawyer. He is clueless about the real life and courtroom impacts of the rules of civil procedure, criminal procedure, evidence.
All we will get out of Brett is regurgitated legal opinions written by his ilk and a sublimated version of his perversion in obsessing over the sex lives of others.
Word.
A thoughtful column. As you observe, we can only hope that, as his tenure unfolds, Justice Kavanaugh will be a balanced presence on the Supreme Court, that he will take the greater good of the United States into account. He had political origins, being chosen to work with Kevin Starr's investigation of Bill Clinton. His time on the appeals court would seem to be mixed at best, though his colleagues seemed to like him. He certainly took his cues from the White House when he defended himself in the special hearing.
But now he's insulated from the White House. Maybe he'll be grateful that things turned out as they did and take the larger view, as did Justice Black.
Ms. Greenhouse, I have been waiting to read your response to the Kavanaugh appointment. Thank you for the interesting history of Judge Black's appointment. I, too, hope that Judge Kavahaugh will prove to be an excellent and impartial jurist. I also hope that eventually, in private, he apologizes to Dr. Ford. The two clearly have issues to discuss.
I hope Brett Kavanaugh publicly calls on his supporters to cease threatening and harassing Dr. Blasey Ford and her family, and that he publicly and privately tells the woman-hater-in-chief (aka DJT) to stop bashing her.
Judge Kavanaugh, lover of the law, ought remind his people and those acting in his name that inciting violence is not legal, nor is intimidation of witnesses.
3
While i have had sleepless nights due to Kavanaugh's pushed-through confirmation that, as usual, the Republican Party of today is famous for whether it be legislation or confirmations, i still hope that he has been humbled by the process, which was due to the President not vetting this candidate enough. The President's failure opened Kavanaugh to a legitimate backlash when certain info surfaced. Kavanaugh's terrible outburst in defending himself and accusing the Democrats made all this worse for him and lost him a great deal of respect. He has been given the chance to abandon his bitterness and become a justice of the Supreme Court that can truly be open to all Americans, something that his colleague Thomas has never been able to do.
4
@DJK. If the claims against Kavanaugh were false, no amount of vetting would have found them.
The Democrats did not want a more in-depth, timely investigation as evidenced by them sitting on the allegations for 2 or 3 months.
I don't know if Kavanaugh is a great judge or simply a qualified judge. Prior to the untimely disclosure of Dr. Ford's allegations, he seems to have had the support of those who worked with him and who appeared before him.
He certainly leans more to the right than I do but the attacks on him seem much more based on emotion and partisanship than facts.
1
"Black conceded that he had joined the Klan"
And that's the real point here. Kavanaugh has conceded nothing. That, along with the fact that no one named by Prof. Ford has corroborated her story in any of its particulars, mean that we have no reason to believe the allegations against Kavanaugh - other than a desire to do so, perhaps based on political or ideological considerations.
"Women should be believed" isn't likely to stand the test of history, and Kavanaugh's "asterisk" is likely to be forgotten long before he leaves the bench in his old age.
9
@HurryHarry,
Of course the allegations have not been corrobareted because the FBI was limited to who they could question and prohibited from following up on any leads.
But Republican voters know this and keep repeating the party line.
What Republican voters don’t know is they aren’t getting fleeced by Republican tax cuts that just give us huge increase in deficits and worse job creation than Democrats going back to Reagan.
So now the treatment of Kavanaugh is being compared to the treatment of an ex-Ku Klux Klan member. The unstated implication is that there are similarities not only between how they were treated but also in what was discovered about them. That seems to be a very unfair comparison to Kavanaugh (where the allegations were reviewed and found not sufficiently credible by the majority in the Senate) and a bit of a stretch for such a reputable paper as the NY Times.
7
@Serge the comparison, to many people, is not to the alleged attempted rape, but to his obvious and ready contempt for anyone questioning his habits, his treatment of others, or his intentions. And his outright hatred — real hate — of roughly half the adult population of our country (aka people who identify or might appear to be Democrats).
Contempt for large swaths of people, and for the confirmation processes, is not a useful quality in a judge, or any public servant.
Then again, those who nominated and confirmed him seem to believe “public servant” means that the public is their servant....
4
We don’t know very much about Justice Black’s motives for joining the KKK. I suggest that the atmosphere in Alabama at the time made Klan membership just something a young man did without much thought. We don’t know that he participated in any of the egregious activities of the Klan. He had resigned when he ran for the Senate. Perhaps he realized that membership was not consistent with who he was. It’s all speculation, but it could explain that Justice Black was a civil libertarian long before he ascended to the Supreme Court. On paper Kavanaugh appears far better qualified, but his record of behavior before the hiring committee appears to demonstrate far less character. Black had a great intellect. Kavanaugh is obviously smart, but he has not demonstrated any evidence of greatness. He has already had the chance to do so on the Court of Appeals. Up to now, nary a glimmer.
At this point those of us opposed Kavanaugh have few options. We can channel our anger into the midterms and the 2020 election or public service of some kind. We can let go of the anger and move on since that anger Is not healthy physically. We can hope for the best. And we can choose to trust that our country can survive whatever comes next.
5
Black admitted he was in the Klan for a short time and was a champion of the underprivileged during nearly his entire adult life. Kavanaugh is a corporate tool who can’t even tell the truth about his HS yearbook page. Too bad Black isn’t around to defend himself from such a nonsensical comparison.
8
Kavanaugh states his "goal is to be a great justice for all Americans and for all America.” In light of his partisan rant at the last hearing, I expect to see this as a caption to a cartoon of Lucy holding a football.
12
@Raul Even If “justified” or maybe because it is “justified” Kavanaugh’s (expressed) pronounced partisanship justifies his NOT being a Justice of the highest court of the land.
“Justified” significant partisanship combined with a judicial philosophy that “What comes around, goes around!” do not for a wise and fair-minded judge make.
2
@Raul Campos
Hello Raul again. Kavanaugh was picked by the Federalist Society. That’s all we need to know.
Expect moreover Citizens United and more Republican tax cuts for the rich.
Reagan, 16 million jobs and tripled the debt.
Clinton, 23 million jobs, almost 50% more and he balanced the budget.
W Bush took the balanced budget and gave us ?2 “tax cuts for the job creators” and we got 3 million jobs and he gave Obama a whopping $1.4 trillion deficit. He also gave Obama the worst recession since the Great Depression.
Obama got us through the Great Recession and reduced the deficit by almost 2/3 to $550 billion.
And we got 11.5 million jobs almost 400% more than W Bush. And that was with the “jobs killing” Obamacare. And 20 million people got health care.
The 2018 deficit was projected to be $600 billion before this latest tax cut. It is projected to be almost double to $1 trillion by 2020.
We will add $12 trillion to the debt the next 10 years which is about $80,000 per taxpayer.
And let’s compare job numbers to Obama starting in 2011 after we came out of the Great Recession.
Time to look up deficits by president and jobs by presidents.
Important to remember that the fiscal year is Oct 1 to Sep 30 so the first year of a new president was the last budget signed by the out going president.
I wouldn’t mind if Republican voters got fleeced but I a man getting fleeced, too. My children and grandchildren, too.
A lot of posters here seemed to have not read the article or missed the point.
Ms. Greenhouse is asking us to reserve judgment until we have evidence to base an opinion of Justice Kavanaugh on.
Her example of Justice Black is apt in that he was thought to be one thing and proved to be another. That other thing wasn't all that much different than what he was thought to be to begin with, but it was different and did result in results that would be unexpected if he actually were the first thing.
3
Interesting background on Justice Black - as usual, lucidly recounted by Ms. Greenhouse. But hardly the same as "business as usual" now at hand with the court, despite seating a justice who repeatedly lied to Congress and displayed an ugly character dating back to likely instances of aggression (including potential rape) against women. This was a naked display of political power and had none of the finesse demonstrated in the seating of Justice Black.
5
@dhc
Dear dhc,
Did you read the article? The seating of Justice Black was nothing more than a raw power play. To quote Linda Greenhouse,
"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."
There was almost a fist fight between two Democratic Senators. That hardly sounds like finesse to me.
1
Hugo Black embodied the sort of humility so badly needed today on the courts of our land. It informed his decisions that upheld civil rights, protected the common person, and believed in a system guided by the wisdom of voters and not Platonic Guardians in black robes.
That made him a prophet of sorts. As his dissent to Griswold v. Connecticut has proven true; that the Court's invented Right of Privacy would be 'bad for the courts, and worse for the country.' How true!
2
Justice Kavanaugh is a different fish from Justice Black.
Kavanaugh is still a smug, spoiled prep boy, who threw a tantrum when he thought he might not get a place on the Supreme Court. His tirade revealed his loathing of the Democratic party and registered Democrats and his conspiracy mindset.
Hugo Black's only loathing was for his prior membership in a loathsome organization.
9
Black was a notable exception to the unlikelihood of people to change. Kavanaugh might become a fair person who proves to be an enlightened justice, some always will be. But most justices do remain consistent through their whole lives. His response to to White House counsel McGahn’s advice to show how he felt with regard to Ford’s accusations showed really immature judgment. Giving power and responsibility to someone who knows so little about himself usually does not bring improvement. Such people just use it to avoid the struggle of transforming themselves, like Trump.
4
As always -
nicely and clearly written.
I agree, which I rarely do,
with your Ms. Greenhouse -
perhaps one day you will be on
the Supreme Court.
3
Justice Kavanaugh is not tarnished.
Those who swetnicked him are tarnished and the list is long, beginning with Senator Feinstein.
Over the years I'd never thought anything but a sort of neutral admiration for her, but now, wow. The stomach turns.
There is no asterisk after Judge Kavanaugh's name.
In my mind there forever will be one after Senator Dianne Feinstein's*.
10
Will our "progressives" ever admit that Kavanaugh was treated badly by the democrats? If anyone was tarnished by this sad episode it was the democrats, and if they can't see that then they are even worse than I think.
8
@jaco
Will our "conservatives" ever admit that they stole a SCOTUS seat which should constitutionally have gone to Merrick Garland? The same Senate which committed this crime against the Constitution "plowed" Kavanaugh through, disrespecting all who asked for more time and information.
But the democrats' anger over this injustice had nothing to do with private citizens' complaints against Kavanaugh, Kavanaugh's drinking history, his lies under oath, or his mysteriously-vanished debts. Those stand on their own.
11
Hugo Black rose from his past...
[ Sorry, this is a time time and a different person, a person who has been groomed for years to be wildly conservative. ]
2
@Nancy
Correcting:
Hugo Black rose from his past...
[ Sorry, this is a different time and a different person, a person who has been groomed for years to be wildly conservative. ]
As always, Ms Greenhouse's article is informative, well organized, and well written. I thank her for offering her insights into legal issues. And, generally but cautiously, I believe that Justice Kavanaugh will serve the Court and our nation honorably.
I say "generally but cautiously" because I sense that Justice Kavanaugh lacks the judicial temperament that separates "good" judges from "not so good--bad even" judges.
Kavanaugh's flaw was revealed clearly during his defense against Ms Ford's accusations. We saw Kavanaugh's temperament on display, and what we saw was--to me--first hand evidence of how the man responds to pressure. It was a test, and he failed.
In my judgment, Kavanaugh is disqualified to serve in a judicial capacity. Like Herman Wouk's Phillip Francis Queeg, Kavanaugh's self control under pressure is lacking--absent even. I would have blackballed Kavanaugh for this reason alone.
4
Like Justice Kavanaugh, I am an optimist. I prefer to believe the KEG is half full .
5
So the theory here is that a justice validly accused of sexual assault and with restrictive views on women's abilities to make their own healthcare choices has the potential to become a champion of women's rights. That may be a bridge too far.
5
@Raul Campos Thanks for referring to me as liberal!
He is only tarnished if you choose to beleive Ford, a lifelong Democrat that made a accusations without a shred of evidence. I think he is a great man that will serve our supreme court in a fair and unbias manner
15
@Joe owens: I do believe Dr. Ford. I don't think there is anything great about Kavanaugh after seeing his ugly, self-pitying tirade. How could you possibly think that he would be fair and unbias(ed)?
3
Wow. Equating an unsubstantiated accusation with Klan Membership. Now that's a stretch. Have a nice day
16
@My Aim is True Kavanaugh’s egregious verbal attacks on Democrats and others, as entire classes of people, and his unnecessary and beyond rude evasion of direct questions and other attempts to obstruct the investigation by roughly half the Judiciary Committee are most certainly substantiated, by Senate récord and by the millions of people who watched and listened live to his hearing on September 27.
9
"I prefer the sunrise side of the mountain"
So that once noon passes, all the shadows come out to play?
Personally, I would prefer to pretend that I don't know what axiomatic choice is (what did Lewis Carroll do for a living again?).
Unfortunately, I'm doomed to a life of madness, surrounded by a bunch of laboratory specimens, the majority of whom have no earthly idea how time itself could be "out of joint."
The biggest difference that I see between Hugo Black and Brett Kavanaugh is that Black became a justice on the Supreme Court at a time with outward expressions of racism were growing less acceptable. Black was already an economic progressive, and it made sense that his views on race and individual rights became more progressive also. In that way, he not unlike the late Senator Byrd of West Virginia.
Justice Kavanaugh, however, has come into power at time when there is active and outspoken resistance to women's reproductive rights, hostility to the expansion of voting rights, a long-standing struggle against Affirmative Action, and a popular disdain for immigration from the nations perceived as non-white. If anything, the national mood of the country is likely to reinforce Justice Kavanaugh's well documented conservative tendencies, not challenge them.
4
@Anthony Cheeseboro,
There is popular disdain for illegal immigration- from every country.
1
Brett Kavanaugh, you’re no Hugo Black. Not by a long shot!
3
What a disgusting analogy, and the Times should be ashamed. Directly comparing a confirmed KKK-er (as an adult) with a totally uncorroborated accusation (of a youth). It's articles like this that are making the Times, WaPo, and others like it a distant shadow of their former great selves. You are supposed to be one of the adults in the room, yet instead you are leading the whining pre-K charge!
13
A small but important correction I believe is that the “issue” with Kavanaugh was not sex, as you wrote in your second paragraph, but sexual assault. I urge you to be more accurate in your diction.
4
True and useful point.
And sexual assault is mostly about power, not sensuality.
It is assault first and foremost, done to or through the use of body parts associated with sex or sexuality.
The will to and abuse of power, over and above another person, sometimes with the goal and very often with the effect of subduing an entire group of persons.
4
Judge Kavanaugh was tarnished not by his record, but simply because he was selected by Trump. The Supreme Court had long been listing to port but is now, if you will, righted.
2
I suspect Justice Kavanaugh would be reasonably disinclined to take advice from those who participated in the assassination of his character and describe him as "tarnished."
5
Somehow I doubt Kavanaugh will ever rise to be a great civil libertarian.
3
"My goal is to be a great justice for all Americans and for all America.” n corporations.
2
Fascinating article, and hopefully Justice K will turn out to be a jurist not a partisan. It would be interesting to see how Trump reacts to Justice K ruling against him or one of his polices; no doubt cries of "disloyalty". He can hardly call him a "so-called" judge.
1
Kudos Ms. Greenhouse, a brilliant piece of writing. Would it be so that the drunken self righteous man with a blind spot as big as the northern hemisphere becomes a champion for civil rights and environmental protection. Or is he going to be the vote when some American city passes a law to lower temperatures that may infringe on property rights and he kills it with whimsy. Wait and see.
Black did the job FDR chose him to do, and over the long haul exceeded the progressive expectations for him.
Likewise, Kavanaugh will do the job that Trump chose him to do, and if his performance Wednesday in Nielsen v. Preap is any indication, he will exceed the conservative expectations for him.
In light of the person who nominated Kavanaugh, and the party that approved him, this prospect makes me anxious.
7
A wonderful lesson in judicial history well worth revisiting. I would be more optimistic of Kavanaugh's ability to transcend himself had we seen more of a mea culpa performance. Indeed, he missed a golden opportunity to give exactly that had he admitted poor behavior with women during his youth but that he tried to compensate by hiring female law clerks in maturity. In that case, he could have sought to meet Dr. Ford halfway and the entire tone of the hearings would have been more solicitous and less inflammatory. If precedent is any guide, it is worth pointing out that Clarence Thomas never got over it because he never stopped looking back in anger. Whether Kavanaugh will do the same is entirely up to him.
3
@DB
All he had to do was remain calm and be mature.
The only explanation for what we saw from him and his republican colleagues, is consciousness of guilt.
7
@magicisnotreal
Agreed. I wish I could argue but I can't. It was right out of the Accuse the Accusers ploy book while playing the indignation card for all that it was worth.
1
Thank-you.
People should read Justice Black's speech.
History, whether presently popular to say or not, is vitally, massively important just like experience. Both history and experience have their limitations and need study to see more clearly.
Here with Justice Kavanaugh (I have to admit as a PhD in Law I have some problem for now at least calling him a 'justice'), nevertheless, to carry on, Kavanaugh lied under oath about his drinking ..so it seems, for we need a full FBI investigation. Justice Black admitted his lie. Period.
As to sexual assault my concern is that Kavanaugh does not understand trauma - either from sexual abuse, of military trauma, or victims of church abuse trauma or those abused in human rights situations - which is my specialty. This is a very serious problem. Very, very, often those who have not admitted to themselves their fuller past refuse to understand trauma. Period.
In short, presently Mr. Kavanaugh does not deserve his position.(Even without legal training it might be that Dr. Ford might be more appropriate to call her Justice Ford. I say this seriously for though I have a PhD in Law that does not necessarily make me a good judge of people as such, maybe just more so if laws are fair under some circumstances in different situations)
By legal tradition, I humbly submit, Mr. Kavanaugh should not be presently a judge. In terms of human psychology Mr. Kavanaugh gets a super failing grade (not good for a potential justice) !
7
Based solely on description of two justices in the story, two key differences between the two emerge.
Black faced his past in front of national audience and is not describe as having contempt for anyone.
Kavanaugh, on the other hand, did not face the nation with truth. He has lied about who he is and hidden his views from all. He was also full of contempt as young student based on many opinions and he was full of contempt to democrats during the hearing. He doesn't come across as person who cares for neutrality and fairness.
Hoping for sunny side of mountain is one thing, having realistic expectations in face of truth is another. Do not hope to see Black in Kavanaugh.
3
Black’s membership in the Klan resulted from where he lived and not what type of person he was. Read Harper Lee’s boot Go Set a Watchman and you will see that some folks joined the Klan for other reasons than hate. I really liked To Kill a Mockingbird, but Lee’s other book was much closer to reality.
Kavanaugh lied during his confirmation hearings. Multiple times.
He is unfit to serve on the Supreme Court. I would have considered Justice Black unfit for lying as well.
But, on a positive not, it appears that Kavanaugh is going to support the deportation of criminal immigrants.
That is justice I can support! Send 'em home! We do not need to import crime into this country.
2
This column misses the fact that we are living in an entirely different era. Black, FDR, and the New Deal was the ascendancy of liberal reform.
As Alfred McCoy has documented in his recent "In the Shadows of the American Century" - we are on the other side of that curve. The Trump administration is a consequence of that fact and Kavanaugh's confirmation is a direct expression.
America gave "hope a chance" with Barack Obama. How did that work out? Not well. That's why Trump edged out Clinton.
Wishful thinking and the application of ahistorical thinking can "appear" to work when the sun is rising. The sun definitely set with the Iraq invasion in 2003 and we are now headed towards the midnight hour. This is not serious thinking.
1
Ms. Linda,
You remind me of my sister, clutching her optimism in any
grim situation, like grasping a flotation cushion thrown off
the boat in the middle of hurricane. I truly admire and respect that consciously cultivated ability and try to emulate it. Alas, it seldom works for me. I am far too cynical.
Respectfully,
Deborah
5
Great military heroes and great leaders are not often predictable. Sometimes in life events occur where action demands one to step up to the plate. If , Kavanaugh wants to be remembered as a worthy Justice , he will "step up"and put politics and favors out of the way and make good and proper decisions. His teenage behavior (even if it includes sexual indiscretions )will be forgiven by most Americans.
3
I believe Ford. I believe Kavanaugh lied during the confirmation hearings, repeatedly. I was against his nomination prior to the allegations, and became even more against him since then.
But do I believe he is some how unable to be impartial and objective about the limits the Constitution places on the government in regard to women? (Remember, the Constitution is about limiting the government, not listing what citizens may or may not do.)
Of course not!
To assume that he's going to read the law in every way to undermine women is ridiculous, and in a way bigoted. It reminds me of Trump's awful statements about a Hispanic American judge who would be somehow incapable of judging one of his many lawsuits fairly by virtue of his Hispanic heritage.
How many justices have surprised either liberals or conservatives by not ruling in their preferred way? I really do believe that justices love the law, revere the law, and aren't not in there just to do the bidding of the party which put them in.
Let's allow ourselves to be pleasantly surprised.
53
@Livonian If Brett Kavanaugh reveres the law so much, why did he appear to flout it so aggressively during his last confirmation hearing?
If he reveres the law so much, why has he not publicly and unequivocally condemned those who have mad and continue to make threats to Dr. Ford’s life and limb or the safety of her family?
If he reveres the law so much, why has he not explained to the American people that if he had behaved in a courtroom as he behaved in the Senate Hearing (for example, repeatedly interrupting, verbally obstructing and insinuating against, and evading questions from officers of the court or members of the Bar), he almost certainly would have been thrown in jail for contempt of court?
13
@Livonian
Unfortunately, I also heard people say "Give him a chance" about Trump's presidency.
Somehow, lying under oath about his partisan use of stolen documents, his credit card debts, his drinking and his sexual assaults -- not to mention partisan rants and statements such as "What goes around comes around" -- doesn't put me in a mood to be "pleasantly surprised" about "Justice" Kavanaugh.
12
@Livonian The Constitution describes the limited set of powers the founders delegated to the federal government, and the Bill of rights further limits how those powers can be used.
I don't trust Kavanaugh to understand and enforce "Congress shall make no law respecting an establishment of religion".
5
I really do not see any relationship between these two judges. There is a closer relationship with Kavanaugh and Thomas as they both seem to think they are above the normal rules. Thomas has not been a beacon of light and I do not see that future for Kavanaugh. Chief Justice Roberts’ Court will not be one for enlightened decisions. Rather we will be stuck in the dark ages of oppression.
4
Interesting column. I knew that Black had been in the Klan and I remember when he retired. I didn't know he wrote the opinion in Gideon.
As for Kavanaugh, good luck on that one. I don't see him as a man of Black's temperament.
5
Hugo Black was a man of integrity. Understanding his membership in the KKK is understanding the political realities of Southern politics during that era than his personal beliefs. He was not becoming a different person. He was finally free to challenge the concepts he grew up with that he couldn't abide. The concept of a person rising to the dignity of the job has not been supported by the behavior of Republicans that have gain high office. Clarence Thomas has shown no brilliance or personal depth in his tenure of the Supreme Court. The many Catholic men in the Supreme Court show no reference to the Sermon on the Mount or love your brother as yourself side of the Gospel. As much as I wish this could be true, I see no evidence.
3
Kavanaugh will shed his extreme partisanship, and the wolf and the lamb will feed together, and the lion will eat straw like the ox, and dust will be the serpent's food.
4
Pollyanna is alive and well. Blithely we can hope for the best, but realistically we should expect the worst.
3
@MikeGera—Agreed that both SCOTUS and POTUS have been permanently diminished by their latest occupants. It’s instructive to consider a “compare and contrast” between BK and DJT. BK, for starters, has an IQ well into triple digits, while the same cannot reasonably be inferred from the musings of DJT. But if “temperament” is one of—if not THE—main qualifiers for office or bench, then what they share in common is the repugnant traits of, “Never admit fault, when they hit I hit back ten times harder, and ad hominem attacks are not only allowed but required.” In other words, BK and DJT are two peas in a pod, and anyone who thinks Justice Kavanaugh will redeem himself on the bench must also believe that DJT’s next campaign rally will reveal himself to be an orator of the caliber of Winston Churchill, Frederick Douglass (personal friend of DJT’s, I hear), Cicero, or MLK Jr.
Dream on.
6
@Terry Malouf. So BK was required to admit fault for something he says he did not do, which the evidence did not support the claim that he did?
Including the last complaint that was patently absurd on its face.
Everyone should read Senator Collin's speech rather than relying on hysteria.
1
@Tim
"Patently absurd on its face"
Bill Cosby was just convicted for it and apparently has been doing it for decades.
the term "Mickey Finn" has been around since 1918 according to Merriam Webster's.
The common term for it today is roofie and it still happens.
The use of alcohol often with added drugs to get women "in the mood" is as old as those two things.
What exactly about her perfectly believable and common story is so absurd?
I'm sorry he's only tarnished by liberals. Justice Kavanaugh has had scurrilous charges levied at him, no proof, mainly a political event orchestrated by democrats. This was a hit job, sorry Brett is innocent. Democrats should be ashamed of themselves as they now proclaim guilty until proven innocent. Sen. Feinstein ginned this up for political reasons.
7
@Ron: "Brett is innocent." You don't know that, and I don't believe it for a second.
Yeh and now Kavanaugh will be champion of women and minority rights. Sure!
4
Didn’t take him long to say that American Indians who only have post office boxes could not get voter is cards.
GOP.... keep everyone from voting!
5
These two men are similar, in the fact that they are both men and confirmed supreme court justices. I'm afraid the parallels stop there. So many seem ready to forgive and forget about the credible/investigable allegations swirling Justice Kavanaugh. That he was a young man, 35 years ago, and has since spent a life in honorable service, is a matter for further debate. His decisions are his own.
The fact that Justice Kavanaugh was a young man when he allegedly assaulted girls does not erase the assault form the psyche of the girls/women he may have abused, just as Justice Black's affiliation with the KKK can not be dissociated from the hearts of litigants whose lives and liberties were in his hands.
Further, Justice Black served the ideology of the New Deal, supporting social justice that would help America make its recovery from the darkness of the Great Depression; Kavanaugh, likely will serve the ideology of the modern Right - a brand devoted to the promotion of influential corporate interest groups, greater wealth, influence and prosperity for the wealthy, and the dismantlement of the very public goods that Hugo Black argued for.
3
Hugo Black was a man of his time. Sure, membership in the KKK was, and remains, a vile credential, but he admitted it and moved beyond it.
Brett Kavanaugh was a serial sexual predator - a criminal. He has admitted nothing - except that he really, really likes beer - and continues to treat women with contempt. He is a RW extremist who has dedicated his adult life to RW causes and the evisceration of the Clintons. He is unrepentant about this as well. He is a liar, perhaps not in the mold of the man who nominated him, but a practiced, consistent, and unmitigated liar nonetheless.
So let's not pretend that a man like this has the capacity to rise above these shortcomings.
3
The one, perhaps most telling, parallel you left out. Even though their judicial backgrounds were about as divergent as could be (Kavanaugh having every possible credential and Black none except law school) both men were nominated because they were reliable politically. A movement New Dealer and a movement conservative. In both cases the opposition to them was solely political and ideological. The Klan membership and assault allegations were just convenient bludgeons. It should be noted too, sort if in Black's defense, that his Klan associations were thought to be necessary at the time for a rising politician in Alabama. He joined not to don the sheet but to win votes and advance politically as a Democrat.
4
Linda Greenhouse jumps the shark.
There is and can be no comparison whatsoever between a former Klansman on the SCOTUS and a decent and accomplished man maliciously targeted by Democrats and leftists as part of a deliberately false disinformation campaign.
Any lessons that should be learned should be learned by those Democrats and leftists who have abandoned any pretense of decency in their ruthless pursuit of power.
8
@EGD
So if the allegations against Kavanaugh are eventually proved true, what then? Judge Black, you can read, initially denied reports that he joined the KKK. Sound familiar? Supporters claimed the reports were an effort to “besmirch” Black’s reputation. Black only admitted his membership when he was boxed in by facts. Sadly, we are reliving the same script. Kavanaugh denies; there is a rush of indignation on his behalf, including Senator Collin’s excellent speech; next step, finding out that Kavanaugh indeed evaded and misrepresented his past at his hearings. It is a script that has played out many, many times already. It is also worth noting that the GOP is quite happy to dump the whole “presumption of innocence” notion when it suits them. Most recently, DJT’s happy followers at his rallies, chanting “lock her up” about Dr. Blasey, Senator Feinstein, Mrs. Clinton, and any other woman DJT has a grudge against. None of these women have been accused of any crime, of course. Also, DJT’s frequent assertions that immigrants are criminals and his travel ban which has prevented legal residents of the US from coming home. The ban, of course, is based on the assumption that citizens from certain countries must be presumed guilty of terrorist sympathies. So the indignation on Judge Kavanaugh’s behalf is both hypocritical and very likely misplaced.
1
Whatever Kavangaugh becomes, and I fully disbelieve this fiarytale of metamorphosis, the process that got him there is corrupt. That is the bigger problem.
5
Gotta love how so many commenters are piling on to sink this boat. Even to the point of arguing that possible sexual assault by a 17 year old drunk teenager is somehow much worse than sober adult membership in the KKK.
Such black and white thinking. Such negative certainty about the future of Kavanaugh. So unreceptive to the nuanced hope in this article.
5
I do not have much hope as Kavanaugh’s adult life starting with Starr has not been anything to admire. I do not think people change at his age and his attitude in his defense shows that.
5
@Areader
Excellent confirmation of my point. All four of his clerks are women. But we are not allowed to consider that because we can only think in black and white.
@Steve: I don't see that having 4 women for clerks is anything in his favor. I don't know that he does it for any munificent reasons. I have seldom seen a more arrogant, self-pitying, entitled person. I would be embarrassed to have acted the way he did. The first thing I heard about him were his huge gambling debts, now mysteriously paid off. I then saw the way he treated Mr. Guttenberg, father of a Parkland shooting victim. This man thinks he is a gift from God. Think again.
Who would've thought the the Attorney General who signed the order to relocate Americans of Japanese descent to confinement camps would then go on the become one of the Supreme Court's staunchest liberals. I often wonder if that sea change of emotion was an act of contrition.
4
A number of justices appointed by Republican presidents ended up being quite liberal. Justices Blackmun, Stevens, Souter, and Kennedy (occasionally) come to mind. Others, such as Justices Scalia, Thomas, and Alito, proved to be strident ideologues. I strongly suspect that Kavanaugh will ultimately fall into the latter category, but I hope that I'm wrong.
2
Having resigned myself to the probability that we're probably stuck with Justices Kavanaugh and Gorsuch for decades, I can only hope (but not predict) that they will do what the current POTUS could never be capable of doing: evolve.
4
Justice Black, a special favorite of mine, is not the only Justice who was appointed to the Court and began to see his place in history as determined by his service to the institution. As you know, the Court is a special branch of our government. It sits in judgment on the ever present tension between what majoritarian driven institutions want, and what all of us, as individuals, claim as our protections from those wants. The credibility and authority of the Court relies upon its ability to address that tension so as to affirm our belief in the Constitution. The pre-appointment, partisan political views of a Justice are of no service to this duty.
1
In today's political toxicity Black would have been ruined.
1
A demagogic President (Trump) nominated a nakedly partisan judge (Kavanaugh) to the Supreme Court, and a cowardly, overwhelmingly white, male Senate confirmed him. Ms. Greenhouse, I fear your hopes and optimism are misplaced. Justice Kavanaugh has no reason, no motivation to change. He will be exactly what we saw in that hearing--mad as hell and gunning for liberals, Democrats, and the "vast left-wing conspiracy." He doesn't belong on the Supreme Court. I fear for the future of this country.
7
The historical comparison is illuminating. However, it is doubtful that Kavanaugh will turn into another Hugo Black.
Mainly because Kavanaugh said that the President should not be subject to any criminal investigation. He was picked by the president mainly because of this and Kavanaugh knows it.
4
Brett Kavanaugh has been an ardent right-wing partisan from his time in the Bush W.H. to the present.
Even when he was nominated to the court of appeals there were many warnings about him.
Now he is counting on his wife and his daughters to white wash him, but anyone listening to the tapes of him during the hearing to grant 17 year old Jane Doe an abortion made it clear that he was delaying the ruling in order to extend her pregnancy past the permissible date for the procedure. That was heinous. Expect a lot more heinousness from Kavanaugh. Thankfully his ruling was overturned by wiser and more decent judges, but there will be no one to overturn supreme court justice Kavanaugh.
3
It is worth noting that Justice Black, who should rightly be lauded for many reasons, also wrote the majority opinion in Korematsu (the Japanese WWII internment case), and dissented in Griswold v. Connecticut, which was the case that provided the basis for Roe eight years later. He did not believe in substantive due process and therefore found no "general right to privacy" in the Constitution. In this way he was a textualist; his turnaround from KKK member to civil libertarian was neither total nor perfect.
7
We must also remember that this is a different time. This is a time where hate is proudly embraced by an emboldened administration. Also, FDR wasn't a dictator bent on taking our country back at least 30 years. Black also didn't come from priviledge, didn't come from living a life of never being told "no". It's like comparing apples to oranges in my opinion.
4
I think you've chosen the wrong former justice for the purpose of comparison - Abe Fortas would be closer to the mark.
To many, Brett Kavanaugh made a mockery of answering questions under oath and, in so doing, undermined the very principles and mechanisms he verbally claims to love and uphold.
Kavanaugh’s choice of behavior during his last confirmation hearing emboldened wrongdoers acting with the worst kind of arrogance and sense of impunity — and the Republican Senate confirmed, literally, this actual impunity. Real lives of real Americans are negatively, sometimes violently, impacted by such models of “judicial” and “senatorial” misbehavior.
Kavanaugh has yet to publicly state that his behavior, and the attitudes it conveyed, toward Democratic Senators was flatly wrong and to explain why (other than the ways it may not have served him personally). He has yet to call for an end to the death and other threats being made — in his name! — against Dr. Ford and other women (for example, now, a senior senator on the Judiciary Committee).
This is someone who values the rule of law and is going to serve all Americans?
His silence about the abuse being laid on Dr. Ford and her family, about mobbing chants to incarcerate a female senator who did nothing or little wrong, and about the wrongness of the contempt he showed while under oath again suggest a disingenuousness or at best a lack of self-awareness unbecoming of a judge and uncommitted to a respectful and respectable judicial process and outcome.
5
The differences between the two not discussed in the article:
Black: operated in good faith and strived to live up to American ideals
Kavanaugh: operates in bad faith and strives to live up to the expectations of an authoritarian
5
The formidable and estimable Ms Greenhouse writes: "...The question that matters now about Justice Kavanaugh is whether his tenure, which might well be as long as Hugo Black’s, will prove his detractors right or wrong..."
Among many questions which matter now IMO are ... anything and every thing touching upon/implicated in, the way justices are chosen and, substantively if indirectly, lifetime tenure.
Also IMO, fundamental to keep in mind how racism - the issue raised by J Black's ultimately admitted KKK membership - may have been addressed, or not, since his justicification in 1937. Marginally heartening? Maybe.
Then compare it with what needs to be done - has needed to be done since, most recently, Professor Anita Hill's having appeared before the Judiciary Committee (really since creation) - to have a genuine and pervasive equality for women, here and everywhere.
1
Fine article, but Kavanaugh has already in his first week demonstrated his tack on the Supreme Court by going to the right of Gorsuch on the necessity of detaining immigrants convicted of crimes, even minor ones from years ago.
5
@Alan J. Shaw,
I find it interesting that enforcing democratically enacted laws is considered 'going to the right.'
Immigrants who commit crimes are subject to deportation according to the law. I wish them well on their journey home.
1
We would do well to remember that Black, though now celebrated as a civil libertarian, was a founder of the Textualists. Justice Black, putting aside the results of his actual decisions (which show how incredibly subjective and disingenuous Textualism is), brought Textualism, now the favorite jurisprudence of the extreme right wing, into the mainstream. To get where he wanted to go, he eviscerated long-standing, common sense manners to determining what the law is. The same conclusions he reached could have been made without his simplistic worldview, which now has spread insidiously throughout the profession and public perception of what Law is and only helped lead to the sophistic arguments of the extreme Rights. Justice Black should not be viewed as a success story.
@John Alvin
You may have missed the point being made.
2
@magicisnotreal
Maybe don't make assumptions. Things don't always have to be mutually exclusive. I understood the point. I'm making another, related point that needs to be discussed about appointing Justices with questionable backgrounds. I don't think, in balance, his presence on the Court was a good thing, even if I agreed with many of his decisions. Linda Greenhouse sees growth, where I see further questionable judgment.
Unfortunately the Republican machine has over decades of intense effort throughly inoculated its judicial candidates against moderation, contemplation, truth, and reason itself. Kavanaugh’s performance during his confirmation hearing virtually guarantees that he is fully immune.
6
Informative article, and history lesson. Are comparisons to drawn, and conclusions to be made? Doubtful. One was nominated by FDR, who our current President could me more different than if he tried. The other difference is the two men themselves. Black saw his position as an honor, and strived to be a better man. After being sworn in, Justice Kavanaugh’s speech gave no indication that thought even crossed his mind.
2
A hopeful column from Ms. Greenhouse. I was waiting for her take. The career of Hugo Black is an excellent example of judgements changing a person's thinking. I doubt it's true, but what if Kananaugh is the Earl Warren of the early 21st Century.
Kidding!
Kavanaugh won't change.
He will continue playing the martyr.
Why change roles, when it got him confirmed?
3
An encouraging perspective, just when we needed it most. Thank you.
As Emily Dickson wrote, "Hope is a thing with feathers....
"https://www.poetryfoundation.org/poems/42889/hope-is-the-thing-with-feat...
So let's see if that fine Jesuit education and august Yale law school degree inspires Judge Kavanaugh to be his own person and rule such that he compensates for his tainted and self-serving, partisan past by issuing thoughtful judgments to make the world, its people, and the planet a better and most just place.
Or, will he follow the old psychological principle that "the best predictor of future behavior is past behavior," and rule as a partisan political hack to serve the insatiable needs of the 1%, corporate fraudsters and big polluters, and the ignorance and whims of our Serial Groper and Liar-in-Chief, DJ Trump?
Trump will no doubt overstep his executive branch boundaries to remind Judge Kavanaugh why Trump put him on the bench in the first place, especially when that Mueller investigation is released and/or the criminal indictments start flying at our "sitting" (TV-watching) POTUS.
But anything is possible, if not probable.
2
Kavanaugh is very good at posturing for effect, not so much for substance. His bland approach to the earlier part of the nomination process was a study in disingenuousness and the later aggressive redirection. To believe this leopard will change his spots is just as naive as the idea that Trump would moderate his obnoxious behavior after becoming president. Undoubtedly his minders in the White House & the federalist society suggested the all female law clerks to show what a high minded guy he is. The reactionary right won this time, getting someone like him on the Supreme Court was a decades long project and I doubt he will disappoint them. The rest of us will rue the day this dishonest partisan hack was given a lifetime to undo decades of advancement in civil rights, economic equality, environmental protection and social liberties. Best buckle up, the ride is only going to get worse.
7
The only reason this man who never worked as a lawyer in the criminal justice system on either side, or even the civil justice system on either side and only ever worked as a taxpayer or party paid political lawyer ever got an appointment to a judgeship is the fact that he is a reliably partisan christian conservative hack.
In other words he will vote for what they want. In more words, all of his future decisions have already been made.
8
After supposedly assuring his Senate supporters he had not joined the Klan, the press revealed the truth. Black then went on national radio and admitted his lie. So I’ll wait for our press to do the investigation our government didn’t (and evidently didn’t do back then, either?), and certainly will wait for the announcement of Kavanaugh’s TV speech.
Hard to believe his Senate supporters didn’t know the realities of the South back then.
5
Unlike Justice Black, Brett Kavanaugh has a history of 12 years of judicial opinions, in which he repeatedly sided with the wealthy and powerful against the powerless. That is why the wealthy and powerful supported him, and there is no indication that he will change his positions as a Supreme Court justice. Unlike with Justice Black, dark money special interest groups spent millions on TV commercials in support of Kavanaugh. They did not spend this money to obtain justice for the poor and downtrodden. Quite the contrary. And then there was the matter of Brett Kavanaugh's pre-written partisan rant at his September 27 hearing. That was not years ago, that was now. I am all for optimism, but in this case, it does not seem warranted.
15
The main difference is that with Justice Black he had virtually no experience as a judge so his history with the KKK was one of the few ways to assess his future judgments. With Kavanaugh we know that he is extremely conservative and have little reason to think he will suddenly change course. I am not hopeful that just because Kavanaugh has regained a semblance of composure and returned to his usual complexion that all will be well.
5
I wish. The only hope here, I think, as long as Kavanaugh lasts, is that Roberts might be a swing vote in certain instances, as he is very political and wants to keep some semblance of legitimacy to the Court. He bent over backwards to preserve the ACA. But on the other hand, he wants the Court to turn right. So, who knows? We must keep up the pressure to remove Kavanaugh, as it is clear he lied to Congress.
4
Hugo Black doesn't matter, for we all know better, Kavanaugh will be forever seventeen because we're convinced that's what we want to prove our point correct. And isn't our point all that really matters?
Since we can’t do anything else, let’s hope you’re right. I would be more confident of a sunny outcome if Brett Kavanaugh, like Hugo Black, had ultimately come clean.
3
Kavanaugh, like his Federalist buddies, wants to topple all elements of the New Deal. In other words, he wants to inflict harm on all citizens regardless of race, creed or color; all besides the rich, privileged & entitled.
2
Ms Greenhouse I didn't know this history and it is a good history to know.
My thoughts concern the women justices on the Supreme Court. If in kavanaugh's mind he's entitled to sexually assault women, women are not worthy beings to him.
The delusional anger I saw in kav's legal testimony towards women, is a delusion that could encompass the work of women Supreme Court Justices as unworthy to consider.
kavanaugh is undeserving of any court appointment; and if his behavior towards women was a more recent occurrence, kavanaugh would be on the other side of a courtroom at the defendants table.
2
Very well said.
1
This comparison is flawed. Kavanaugh is not tarnished in the sense that he did something wrong. Ford's allegations were uncorroborated and as new information is learned regarding her actions prior to the "leak" of the letter, it appears she created this fictional narrative with former FBI agent McLean. The despicable actions by the Democrats didn't tarnish Kavanaugh, instead they have brought disrepute on to themselves and energized Republican voters. Black was an avowed racist, but only in the Alice in the Looking Glass world of the Democratic Party, would this be overlooked. Black and FDR attempted to stack the court to push through their legislation, which wholly politicizes the Supreme Court, which is what the Dems are accusing the Republicans of. Yet, the Dems want to stack the court, like FDR's attempt, in order to push through their socialist agenda. Kavanaugh was the victim of a political character assassination and to equate him with Black is idiotic.
7
@Mike
It should be noted that not one piece of important legislation was passed by the Roosevelt administration after he tried to 'pack' the court, for the rest of his tenure in the White House. Something Democrats today are not aware of and I'm sure could care less about.
@Mike
Justice Black did not acknowledge his membership in the KKK until he was forced to - by conclusive evidence. There is absolutely no evidence to support your slur that Dr. Blasey “created a fictional narrative with former FBI agent McLean.” Justice Black’s denials were flat out lies. I suspect Kavanaugh’s denials have the same merit.
1
Judge Kavanaugh, unlike Hugo Black, already had a very extensive partisan judicial record of 12 years on the bench. After his unmasking with a tirade of belligerent conspiratorial, vitriol, and venomous remarks defending against charges of sexual assault, it's seems much more likely he will seek partisan vengeance than personal remorse and redemption as did Justice Black. As Judge Kavanuagh himself forecast, "What goes around, comes around." It seems clear just what's about to come around.
4
Kavanaugh's long career as a Republican operative leads to no other conclusion than that he is one and will remain one. He wasn't just a member of a white supremacist organization, and bad as that is, he was paid staff.
7
Kavanaugh doesn't take lessons from anybody!
1
And Justice Stephen Field was charged with murder, so there's that. The Supreme Court of the not too distant past was often a post for grifters with abhorrent conflicts of interest. That gets overlooked recently. We've come a long way, even despite the appointment of Kavanaugh.
2
You must be on LSD if you expect Kavanaugh to develop a conscience. The man either lied or was intentionally misleading on many questions (and I am not considering the sexual assault questions themselves). He will turn out to be a Clarence Thomas type, completely closed mind coupled with bitterness.
20
Watched the RBG documentary last night and what struck me, more than anything including the Ford allegations (which are almost impossible to prove one way or another), is the absolute lack of any meaningful legal experience by Kavanaugh. Regardless of your political persuasion, RBG was a huge figure in the law leading up to her nomination. She argued significant cases in front of the Court that regularly resulted in decisions that changed the gender legal landscape in this country. In stark contrast is Kavanaugh; at best a partisan hack whose legal resume is a road map for sucking up to the hard right: the Starr investigation, the Florida recount and the Bush torture crimes. He’s literally done nothing that remotely resembles being a real lawyer. That is the real shame of his nomination as his utter lack of real world legal experience will forever taint his decisions. #sad
26
@Dave
12 years and 300 opinions on the DC Circuit Court? Many opinions upheld by SCOTUS?
Are you kidding?
1
Sorry, it is the senate that was tarnished, not the candidate. Editors at the NY Times please stop with the hyperbolic and often one-sided articles and headlines.
Sorry, also, that nobody can predict the future and it is entirely possible, and there is precedent, that any justice, from whichever "side," will vote opposite from your own one-sided views.
3
I don't think that this preppy drunk has such aspirations. He likes beer.
14
This is yet another disgusting example of a Liberal hit piece on Kavanaugh.
“Black conceded that he had joined the Klan and said he had resigned before he became a senator.”
How can you compare the two men when Black admitted but Kavanaugh has denied? Moreover, Ford had 0 corroborating evidence and all alleged witnesses denied ever being at such a party. In fact, Fords lifelong best friend denies ever meeting a Brett Kavanaugh.
This type of continued character assignation will only keep Republicans for the midterms.
5
@Ray Fox Kavanaugh demonstrably lied about his involvement in selection of a judge and about his knowledge that he was handling stolen Democratic emails. He also said the US Constitution's principle of separation of church and state had been "misinterpreted," and his decisions around prayer and schools have all been in the direction of supporting prayer there - Christian prayer. All this alone should have disqualified him.
4
@Ray Fox
You neglect the key fact that Justice Black was forced to admit his behavior - when it was proved his denials were lies. After his confirmation. Kavanaugh’s denials are every bit as believable as Black’s. Not to worry - the GOP won’t care. He’s on the Court and no matter what comes out in the future they will keep their little shill in place.
1
@Ray Fox
"This type of continued character assignation will only keep Republicans for the midterms."
Only recently Democrats (and anyone else who disagreed with Kavanaugh's nomination) was called a "mob".
Don't fool yourself into thinking that's so easily forgotten.
And we'll see come Election Day.
1
There is one big difference between Kavanaugh and Black. Black was conclusively linked to the Klan while Kavanaugh only had uncorroborated allegations against him.
I'm hoping that the crack investigative reporters at the NYT will dig into allegations against Kavanaugh and give us the truth. If there is no such article in the NYT in coming months my guess is that the couldn't find anything.
6
I have never been a Linda Greenhouse fan: today she sunk to a new low with this disgraceful article. Comparing Brett Kavanaugh to a member of the KKK is despicable.
3
I believe that Brett Kavanaugh’s judicial quality and maturity allows him to rise above his high school and college persona (which has amply been established) But I have to try much harder to accept the possibility that he can rise above his just-demonstrated injudicious temperament and ease of repeated lying, for example as Patrick Leahy ticked off his manifestly damning yearbook entries. That updates the assessment of character to here and now, and discourages hope that he might have matured in the same way Hugo Black had.
5
If Kavanaugh thought the hearings were brutal, just try and rule against Trump as a justice. Hell hath no fury than a criminal president scorned. Who has a twitter account. It will make all the women who protested at Capitol Hill seem like amateurs. And then watch as Trump goes to rallies and degrades and belittles Kavanaugh offering such gems as "I knew all along he attacked that woman". And the classic "If I knew he was going to rule against me. I never would have nominated him." But, I don't think we need to worry about that, do we Mr. Kavanaugh?
7
Dear nyt
Most Americans don’t know anything about the hx of America and hence history repeats itself in ways that harm non white people
Hence America’s enduring white supremacy
All American media: Protestant or Jewish owner has actively constructed the above through propaganda media
It’s important that folks understand that the Supreme Court has always been political with numerous skeletons. Media talks about the court like it’s an institution to be revered. That’s fake news
Publish more articles so people understand that nothing new is happening
Publish the truth for once
3
This whole piece is idiotic as Kavanaugh isn’t tarnished.
3
If you think Kavanaugh is going to become like Black I have a bridge to sell you in the sky.
4
I think it's acknowledged that becoming a Justice often changes people. So let's hold out some hope for Kavanaugh, now that the bloody battle is over.
1
When rumors arose about Hugo Black's KKK affiliation why didn't he admit it right then? And, why didn't he own up to it when he was being considered by Roosevelt?
Kavanaugh was clear in his disdain of Democrats. Testimony comments, "revenge on behalf of the Clintons", "a calculated and orchestrated political hit," "fueled by “pent-up anger” over Trump’s 2016 election victory and outside groups stoking fear...." And he lied about his yearbook comments.
All Kavanaugh ever did was make some half baked non-apology in the Wall Street Journal that no one reads.
In my opinion, neither Black or Kavanaugh should be or have been on the Supreme Court.
3
Thanks for this. Can you tell us whether Justice Black ever lied under oath? If Justice Kavanaugh did during any of his Senate confirmation hearings or elsewhere, would his conversion of liberal feminism exonerate him?
1
Lijnda, the Democrats throw a despicable Hail Mary with their last second sexual assault claim, and somehow now Kavanaugh is tarnished? Is the byproduct of a political act now a fact against the man's character? Not sure that's fair.
4
Yes he’s tarnished, by his own behavior at the hearings. Who could see that and not think there must be a better candidate for our highest court?
6
Well said. Thank you.
Well, that was about as gracious and generous as I can expect from the partisan and ideological leftists of the New York Times Opinion pages, although it have the requisite slam against Donald Trump (for whom I did not vote).
3
The KKK was a major and formal political force in the US from the early 1920s up until the mid 1960s. They had quite a few senators and governors among them. Like Trump's supporters, they were white and upset by the erosion of privilege and power that comes with being white, and Kavanaugh seems very much in that group as well.
Hugo Black was nominated as part of the FDR Supreme Court Packing effort to get people who would approve of the New Deal, much as Kavanaugh as is Gorsuch. Republicans should be very afraid that when the Democrats gain control of Congress and the White House that they will do what FDR tried to do: increase the number of Supreme Court justices. I wonder how many Americans are aware that the Constitution does not limit the number of Justices for the Supreme Court!
Black was no friend of the KKK but he needed them.
Kavanaugh shows he lacks the temperament to ever be described the way the NYT described Black when he became a Supreme Court Justice. More likely, the journalist would be escorted out while Kavanaugh ranted on about the Clintons and mobs of sore loser Democrats.
3
Did Justice Hugo Blackmon kidnap and assault blacks and then lie repeatedly and remove all doubt he was an unhinged right wing religious partisan hack during a drunken rage in his confirmation hearing?
5
It's interesting how Democrats can forgive Klansmen like Hugo Black and Robert Byrd (Dean of the Senate Democrats) while scorning former democrats like Strom Thurmond and Jesse Helms as racists--once they become Republicans.
It is reminiscent of how Democrats like Diane Feinstein and Dick Durbin stood by Bill Clinton who was found guilty of perjury and obstruction of justice in a sexual harassment case (Paula Jones had been dragged to his hotel room by police where Clinton exposed himself and asked her to "kiss it.") Compounding the problem were accusations of rape (Juanita Broderick) and sexual assault (Kathleen Wiley) that had corroborating evidence and contemporaneous accounts. yet that did not persuade these two because, well, Clinton is a Democrat.
But an account of a teenage groping 36 years ago where all the people named as witnesses--including a girlfriend--denied any knowledge of the event is evidence enough for Feinstein and Durbin because, well, Kavanaugh is a Republican.
The more things change, the more things stay the same.
4
So let me get this straight, an unsupported fake allegation can "tarnish" a Supreme Court Justice? Ok then what if I accuse Elena Kagan of child abuse then she is tarnished?
3
Yes, and also hope it's Hugo Black and not Clarence Thomas who'll be Kavanaugh's inspiration. And the left must learn not to let the past rattle them quite so much.
The writer doesn’t seem to realize there was no corroborating evidence against BK, and hence in our America he is innocent.
To draw parallels between someone tied to the kkk and racism to someone who is innocent of sexist attacks is outrageous. The SMEAR continues.
3
A Senate confirmation hearing is not a trial. If the nominee is not found to be worthy, he or she is simply not confirmed as opposed to being convicted of a crime. Had Kavanaugh not been confirmed, he would have remained a Judge. We, as citizens, have every right to have our elected Senators examine all aspects of those who are appointed to sit on the bench.
We may disagree on the fitness of any nominee, but to willfully distort and misrepresent the process in order to limit its scope for political ends is flat-out wrong.
5
@alan
On the contrary, the parallels are excellent. Black initially denied the allegations - as did Kavanaugh. Black’s confirmation was rammed through despite significant opposition - as was Kavanaugh’s. It was a newspaper that conclusively proved Black’s denials were lies. This could still happen with Kavanaugh, since no real investigation has been made of his behavior. Some people even derided the allegations against Black as a “smear campaign”. Why look, another excellent parallel! Will Kavanaugh admit any wrong doing if evidence surfaces? My money is on the “I was only a youth, do not hold my behavior against me!” He’s got that excuse loaded up and ready to go.
Kavanaugh will not transform into the next Hugo Black any sooner than Clarence Thomas transforms into Thurgood Marshall.
5
Bart O'Kavanaugh is no Hugo Black. Period.
2
To Quote Black years later on why he joined the Klan " I wanted the votes !" He used to give formal lectures to fellow Klansmen on anti-catholicism while he was a member.
1
Thank you, NYT, for another fine Greenhouse column!
1
Wishful thinking.
It is crazy to me...but not really, considering the "unhingedness" of liberal media, to compare the pre confirmation Justice Kavanaugh to the pre confirmation Justic Black, who was alleged to be a member of the Ku Klux Klan. A hate group and gang of murderers. wow.... I mean just WOW!
That is a very irresponsible piece of "journalism", using the term liberally, even for an opinion piece. Because the underlying message (which is the intent) is Kavanaugh is a despicable person not suited for the bench of th le highest court by comparing the allegations against him to the allegations that Black was a Klansman. It's irrelevant that there is "hopeful" message here. and frankly the message of hope is unnecessary. anyone who actually takes the time to look at Justice Kavanaugh's judicial record would know that he is more than qualified.
4
It comes as no surprise that every aspect of this government is in a state of selective failure. I expect this to continue accelerating as many in government are living in a state of selective-ignorance which is symptomatic of an addiction to cash. Anyone with common sense and some grey matter can see that the end of this empire of ignorance is coming to a rapid end. I come to this knowledge through simple observations of truth and reality, which I might add means nothing to this government of fools and crooks.
1
Yeah, but the Ku Klux Klan tarnish was different, i.e. better than a perjury tarnish. Some people admired the Klan, nobody admires a liar.
3
@Richard Mclaughlin
A truism that has not been true since reagan. The republicans are not as proud of anything so much as they are proud of the lies they perpetrate to con their voters.
1
Maybe pigs will fly Linda.
Worth another thought piece.
2
As long as someone is politically liberal, Ms Greenhouse will back them.
2
Really, it's time for the NYT to move beyond Kavanaugh. It's over - he was selected for the Supreme Court whether we like it or not. Time to get over it and move on. Let it go.
2
Hugo Black had the intellectual integrity needed to do so.
2
There is a distinct difference between Hugo Black and Brett Kavanaugh that seemingly eludes the "intelligentsia" at the NY Times.
It is that Justice Black actually WAS in the KKK, but the charges against Justice Kavanaugh were mistaken at best and more probably phony as determined why the majority of the senate. As such there is no reason whatever that Kavanaugh should renounced his philosophy and act like he is a member of the founding party of the Ku Klux Klan--the Democrats!
4
Wow! You mean there's hope for the rest of us? Even the non-libs can be saved?
Talk about the power of...."the sunrise side of the mountain!" Bless you, Linda!
1
It has always been a tempting, primary version of Justice Black’s career to see his Court years as one of redemption from his Alabama years. His 23 months of Klan membership hides all else he did and was in Alabama, including the lawyer who represented the United Mine Workers, virtually the only interracial organization in the early Jim Crow South, the leader against convict leasing in Alabama, and the candidate for the US Senate who declared “equal justice to all, special privilege to none.”
3
Good story but an imperfect analogy. It was easy for Black to recognize how bad the KKK was (and continues to be) and change his beliefs once he was operating in the bright sunshine of the SCOTUS.
Kavanaugh is a proven partisan hack who was rewarded for his dedicated service to the GOP (Ken Starr, George Bush) with a seat on the federal bench. I don't see him changing his beliefs.
3
Can you imagine a black Hugo Black?
Can you imagine a black Sandra Day O'Connor, Ruth Bader Ginsberg, Sonia Sotomayor or Elena Kagan?
Earl Warren while governor of California gleefully rounded up and interred Japanese Americans.
Can you imagine a black Earl Warren?
If Brett Kavanaugh had been accused of assaulting a white girl can you imagine if he were black?
1
@Blackmamba
The flaw in your argument, at least as far as Kavanaugh is concerned, is that the GOP was not interested in his race or his gender. Not really. What they wanted was an easily-manipulated, true-blue partisan hack who would always do the bidding of the Federalist Society & other ultra-conservative special interest groups such as the NRA. Undoubtedly his whiteness & maleness were more palatable to the Evangelicals in the GOP but let’s face it. The wealthy powerful and absolutely selfish people who run this country will support anyone who will faithfully do their bidding, regardless of race. They support Donald Trump after all. What more is there to say?
“The issue was not sex but racism”. Kavanaugh’s issue is NOT about sex...it is about violence, binge drinking, and perjury. Just to be clear.
5
This article taught me much about Hugo Black, about whom I knew little, other than that he'd been in the KKK and had gotten onto the Supreme Court. The one big similarity I see in Hugo Black and Brett Kavanaugh's stories is that both were products of the cultures in which they grew up. It seems Hugo Black likely experienced the realities of average folk while Brett Kavanaugh experiences privilege and self-entitlement. Hugo Black had resigned his KKK membership while Brett Kavanaugh's speech to Fox News and statements to the Senate demonstrate that he retains membership in the unofficial fraternity that divides to conquer and enjoys, despite the peoples' 2016 popular vote, executive power over our great nation. This fraternal ruling class roots itself in inherited wealthy, casual use of girls and women for sexual entertainment, discarding and demeaning some while choosing others for legal marriages, sometimes serially and multiply to seeming trophy wives. Which is better: a justice who has risen through the ranks and likely seen much, or a justice who, in his quest for details of Bill Clinton's sexual dalliances, looked down his nose as he threw stones from his glass house? We the people come from many walks of life and in recent elections, we the people find ourselves presided over by entities we didn't choose. I hope Justice Kavanaugh comes to appreciate and respect us, the people who voted against the executive who appointed him but cannot simply fire him.
1
Well done! Thank you. This is the first NYT article about Kavanaugh not written in the vile mode of the modern progeny of our Salem ancestors, reincarnated and flourishing in the metoo group.
1
Linda Greenhouse was a beacon when she wrote for The New York Times. She led to Adam Liptak. Readers that care will know that their coverage reflects understanding, not unsubstantiated opinion. Most of the time we can take comfort that logic rules, starting with fact.
Let’s hope. If a justice achieves the bench by lying, it is not a good start. No question the comparison fits. Black and Kavanaugh lied to get there. Lied. And lied.
Justice Black knew go Negro lynchings. They were common. Postcards were mailed and collected to intimidate people of color. I do not recall Black’s comment on point. He lied to get there. He was a hero to those so inclined. He never fooled those of principle that truly cared.
I am unimpressed with a logic that suggests compromise with this process. Kavanaugh and Trump represent power at its worst in our nation today.
This fight may not be over. The people are angry. Best sides see something there. This one has legs... and it is not over.
Keep an eye on the Chief Justice. He is slowly moving in the right direction.
2
Hugo Black wasn't wearing KKK robes when he was nominated. But, at 53, Kavanaugh is now what he's always been -- a Republican operative. Only worse than anyone ever expected.
He'll prove as reliable as Trump and all the rest of them could hope. The man is nothing if not loyal to his origins and benefactors.
4
Always interesting reading from Ms. Greenhouse.
Mr. Black admitted membership in the KKK. Mr. Kavanaugh not only denied the charges, but he also made several stunning accusations of his own.
Mr. Kavanaugh said all claims made by Dr. Ford and Ms. Ramirez were untrue, mistaken, lies, and conspiracies that were conceived of and carried out by Democrats because of their jealousy about the last election and the Starr investigation.
Was there any evidence for any of his assertions?
4
Consider Trump is no F.D.Roosevelt! Knowing the 'nature of the vindictive beast (Trump)' and why Kavanaugh was the nominee, don't expect another Hugo Black
1
Unlike Hugo Black, who really had been a KKK member yet denied it in the Senate hearing, Kavanaugh was attacked unfairly for unproven and apparently unprovable smears by the Dems because they didn’t like his politics but couldn’t find any legitimate basis to oppose him. I hope he’s on the Court for the next 40 years and more
2
I wouldn't expect this from Justice Kavanaugh. His angry explosion and rabid political partisanship as well as his looney-bin Clinton theories will be most remembered about him, as he is probably unable to turn a leaf as Justice Black did.
3
The comparison of Justice Kavanaugh to Justice Black doesn't stand up to scrutiny. Black's membership in the KKK probably wasn't unusual among politically ambitious Southern Democrats early in the 20th century. He credibly repudiated his affiliation with the Klan, as did Senator Robert Byrd later on.
Kavanaugh's long and troubling record as a Republican political operative and anti-Clinton dirt-digger is different in nature and meaning than Black's KKK membership. Kavanaugh's enraged self-defence before the Judiciary Committee, in which he sneered anew at the supposed Clinton partisans who tried to "destroy my family", demonstrates that his partisan biases live on and provides ample reason to question his suitability for a lifetime seat on the highest court.
The question of whether Kavanaugh lied under oath during his confirmation hearings for the federal bench has yet to be answered. The emails and documents that will tell the tale, suppressed by President Trump, will certainly be examined by Congress if the GOP loses its majority. If he is shown to have lied, Kavanaugh's continued tenure as a judge will be untenable.
3
Except the tarnish is not on Kavanaugh.
It's on Feinstein, Booker, Hirano, Harris, Schumer, and the left-wing pundits at the NYT, CNN, and MSNBC. The dust is settling, and people are getting a chance to see and think clearly. Have you read the Swetnick allegations? Have you looked at the details? A college student returns a dozen times to a high school party where she knows gang rapes occur? Yeah...that has the ring of plausibility.
4
Black was in the KKK. There is no proof, corroboration, or even a time or place identified that Justice Kavanaugh did anything. Enemies trying to tarnish is not the same thing as tarnishing one's self by one's choices. If the Clintons are not tarnished in the eyes of the left, there is no reason to say Kavanaugh is now.
2
So let us make sure that I got this right. FDR nominated a KKK member and he turned out to be a liberal Justice and therefore okay with you. Now, Trump nominated an alleged sex offender and you hope he will be a great liberal Justice and if that turned out to be true, then you will be okay as you were okay with Justice Black.
The only conclusion I can make from your argument is that to advance liberalism you will side with sex offenders and KKK. This is what is wrong with liberals. Now we know why all this circus happened during Kavanaugh confirmation. You were worried he may not be a liberal. So you threw everything at him. Liberal don't think their ideology can stand on its merit, so they always play identity politics. Instead I suggest you to stand tall as a liberal and win or lose on its merit.
1
We no longer live in an age when someone needs to make up for stupid, illegal or other mistakes they have made in the past.
With the advent of Trumpism, you just get louder, more obnoxious and more pugilistic.
Kavanaugh is just itching for a fight.
3
Getting lucky after Hugo Black was rammed into the Supreme Court doesn't justify his shady background. He was in the KKK but didn't actually join any activities???
Our country is blinded by nostalgia when we are oh so shocked when a politician or cop or judge is corrupt or wobbly in the ethics dept or character realm--and worse, stays on the government payroll for long periods of time.
Politics stinks, human nature stinks.
Look how far we've come...
A good reminder how some SCOTUS appointments in the past were as controversial, and maybe more so, than Kavanaugh's. Black, David Souter, JP Stevens, Earl Warren - all appointed by Republicans turned out to be our most liberal justices. Indeed, studies from Berkeley show that the majority of justices get more liberal over time. To a large degree, however, that is because over time society has been moving in the progressive direction. But to hope Kavanaugh turns liberal one only needs to look at Thomas, who has gotten more conservative over time. Did his bitter confirmation fight make him dig in? Or is he just one that doesn't move over time? We don't know and may never know. We do know his wife is still bitter at Anita Hill. So I think the article's title is a bit misleading. Black is not necessarily a lesson on Kavanaugh. Only time will tell, however.
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Thank you for this article. You beat me to the punch! :).
I agree that the Black nomination is instructive but in considering that view this past week I had a slightly different take. The one fact you left out of this wonderful article is that Justice Black made his speech and vowed to never speak of the matter in public again. Unlike Kavanaugh, Black was not defensive. Such a posture would have been at odds with his character. He made a single, short statement and moved on. Yes, the issue blue up after, not during, the confirmation proceedings, but it is unlikely that Black would have ever publicly behaved as Kavanaugh has (privately is a different matter as he was something of a street fighter for his positions)
I appreciate your optimism for the future but Kavanaugh is not worthy of such optimism. Black was a populist from a relatively humble background who always fought tooth and nail for the little guy. Kavanaugh is an elitist who has shown little empathy for anyone outside of his limited world view. The federalist did a good job picking these folks, he is not likely to disappoint. They will never suffer a David Souter (or even an Anthony Kennedy) again. If Kavanaugh had behaved more honorably (instead of aggrieved), if he had shown even a modicum of true empathy for Ms. Ford, we would have reason for optimism. But he did not, and so we should not.
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In situations where it is an ideology that is embraced, is it possible to transform into a larger person, by virtue of the calling and the dawning recognition of the tremendous responsibility entailed? Hugo Black may have abandoned any allegiance to the Klan long before he accepted the nomination. And as we all know there are other justices that moved beyond the political wishes of their nominators. But is this possible when ideology and political orthodoxy appears to be so ingrained in the man? I think its unfortunate that Kavanaugh did not even try to demonstrate that he became a larger man on his journey from high school kegger to supreme court nominee. Notwithstanding thaf the testimony of his accuser was never meant to settle, in legal terms, guilt or innocence, but meant to be one factor of many which, by illustrating his reaction, would give us information about how he would function as a supreme court justice. In my opinion he failed on all counts, the least of which was any belief that he might have been guilty of inappropriate sexual behavior in high school
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I see the point you are trying to make Ms Greenhouse. I wish I had your optimism about Kavanaugh. However, Kavanaugh's openly partisan words and threats at his hearing along with his lies throughout his confirmation process he will evolve over time like Justice Black. He is and always will be unfit for his position just like Clarence Thomas, who by the way, has never deviated from his views.
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Despite similarities in the confirmations processes, the characters of the two individuals are vastly different from one another in that one was accused of being a racist and the other was accused of committing a violent sexual crime.
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An aphorism about Justice Black went this way: when he was a young man, he wore white robes and scared Black people, as an older man he wore black robes and scared White people.
So if history has symmetry, perhaps the new justice will be described thusly: as a drunken young man he terrorized young women, as an older sober man he championed them.
One can only hope. Perhaps his daughters and law clerks will assist him, if not RBG’s presence in itself.
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This is a classic case of the ends justifying the means. Although Hugo Black was a racist and member of the Klan, not to mention lying about it, his subsequent judicial record was noteworthy. So maybe it will all be OK with Kavanaugh, even though there is nothing yet to suggest that the parallel Greenhouse outlines will apply to his tenure on the court. The ends justifying the means is the same argument the Republicans used to justify blocking Merrick Garland's nomination, and to continue to support Kavanaugh despite the cloud that hangs over him. If we can't, as a nation and a society, say that the means do not justify the ends, that we are committed to a fair and honorable process no matter the results, then we have no one to blame for our moral decline but ourselves.
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There is a great difference between Black and Kavanaugh.
Yes, Black was a KKK member but at that time it was virtually impossible to hold elective office in Alabama or any other southern state without being a member.
As Ms. Greenhouse mentions, Black's rulings on the SC were very much in line with his views prior to joining it. The problem is that Kavanaugh is expected not to change his views either and he has the added burden of being an obvious perjurer and likely a sexual predator. Black had little choice in joining the Klan. Kavanaugh had a deal of choice in his behavior.
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Thank you for this great article, which gives important context and hope for Justice Kavanaugh. However, just this week, he has taken a rigid and hard line position in oral argument in a case involving the question of whether an immigrant without legal status can be detained without bail based on a criminal conviction, however minor and whenever it occurred, even decades ago. Justice Kavanaugh does not seem to have the necessary empathy or understanding to see that his outrage about possible punitive measures against a person for transgressions long ago should apply, not only to himself, but to an immigrant facing unlimited detention. When it comes to himself, Justice Kavanaugh rails against injustice, when it comes to the vulnerable and marginalized, he is firmly on the side of law and order at the expense of the individual. I hope Justice Kavanaugh follows in Justice Black’s footsteps, but I am afraid that his side of the mountain excludes people who are not like him.
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@Joe Rosenberg,
The law says such people are eligible to be deported. Congress sets immigration policy- not the Supreme Court.
Immigrants guilty of crimes have no place in our society. They need to return to their real homes.
Among Justice Black's most notable quotes:
"I read "no law . . . abridging" to mean no law abridging." He later noted, "It is my belief that there are "absolutes" in our Bill of Rights, and that they were put there on purpose by men who knew what the words meant and meant their prohibitions to be "absolutes.""
How do you think that Hugo Black would have dealt with the argument that government possesses the right to ban books and movies, if they're political, ala Citizen's United?
(One can check out United States v. United Auto Workers for a sense of how he might have acted.)
One might argue that Black was, at least in some measure, a textualist, a philosophy to which NO Democrat today adheres. He obviously felt that the language of (at least some) parts of the Constitution means precisely what it says. NO Democrat adheres to that view today.
And another thing: if a candidate for a judgeship, today, stood credibly accused to anti-Catholic beliefs, would a single Democrat care?
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@Michael
Here's a liberal who agrees with the original text of the early amendments to the Constitutions:
'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed'.
Meaning: gun ownership was not to be infringed in the context of a 'regulated' Militia.
Nothing in there whatsoever of an individual's right to keep/bear arms in any other context.
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I think you misapprehend Citizens United. There was no law that forbid the substance of the product that CU made. The law required that the source of funding for political advertising be declared and that some reasonable limits be placed on political contributions to avoid the appearance of influence buying. After CU, dark money has flooded our advertising space with fact-free attacks to a greater extent than before.
And despite what you may believe from the ranting of the ultraconservative wing of the Catholic Church, the Democratic Party enjoys significant support from mainstream and liberal Catholics. Most Democrats just believe that Catholic doctrine shouldn’t dictate the law for non Catholics.
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@dmckj
You need to look up what "well-regulated" means. And then you need to look up what "militia" means. When you understand those terms, and you get to the "shall not be infringed" part, you will, if you're honest, change your mind.
Unfortunately, the benign ending to Justice Black's story does not suggest that Justice Kavanaugh's story will be similar. Justice Black confessed to his Klan membership, and this membership is almost (but not quite) forgivable in light of Alabama society's Klan-infested nature during Black's youth.
Kavanaugh, on the other hand, has not confessed to his wrongdoings in the realms of sexual assaults (of which he is credibly accused by several women), lying to the Senate about the extent of his drinking, speaking belligerently to the senators questioning him (or, not apologizing adequately for this shocking belligerence), and for his grossly dishonest claims about a Clinton-inspired Democrat assault on his candidacy. If Kavanaugh were to apologize thoroughly for all of his bad and injudicious behavior, I would have hope for him possibly following a Black-like path of redemption. He has not, and the lack of character that he revealed during his hearing leads me to believe that he is not the kind of person who will do the right thing now that it really counts.
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@Otto
I agree entirely. Had he admitted and showed regret for his abhorrent teenage behavior, fueled by excessive alcohol and stupidity, I believe he would have won over many skeptics. As it stands, I fear his hatred of and resentment towards Democrats will color his decision-making.
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@Otto He didn't signal any intention to leave rank partisanship behind when he indulged his nominator by showing up at the White House for a blatantly political stunt on Monday night. He is a member, now, of a wholly independent branch of government and he was under no compulsion to jump to Trump's command appearance. I doubt Kavanaugh has the fortitude to be anything like Hugo Black, or even like the justice he claimed to aspire to be. He's been a political hack all his life, or at least since he quit assaulting 15 years olds.
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@Otto That assumes Kavanaugh did engage in sexual assault. An assumption that is not supported by the totality of the facts or the sparse, if any, corroborating evidence.
I have no doubt, however, the constant repetition of the charges will be such that, in 10 years, Kavanaugh will be assumed to have been a serial rapist despite the absence of evidence.
A terrible case of character assassination created for political purposes and revenge for the GOP's unpardonable treatment of President Obama's nominee.
Before arguing otherwise consider two points. Why hold Ford's charges for two or three months until the hearing was basically done rather than conducting an in-depth investigation. No, when you're accusing someone of being a rapist, and wanting people to rely on your accusation, you don't get to hide behind a desire for confidentiality. Secondly, what have Kavanaugh's actions been since college and law school? Anything whatsoever in his conduct that would tend support of the decades old claims?
Black was an ardent New Dealer, which is why Roosevelt chose him on the Supreme Court. Black, who strongly favored Roosevelt's attempt to pack the Court, employed judicial restraint to prevent the Court from interposing itself in social and economic matters, a great benefit to Roosevelt at a time when the Court kept striking down New Deal reforms.
It means that Black acted not out of any real change of heart about his racist past, but out of allegiance to Roosevelt and New Deal initiatives as put forth by the Executive and the Legislature.
Black wrote the majority opinion in Korematsu v. United States (1944), the Supreme Court's most infamous decision other than Dred Scott v. Sandford (1857). Black upheld the Executive and Legislature in dictating that Americans of Japanese descent be removed from their homes and placed in internment camps during World War II. Black validated all legislative and executive actions which led to internment saying, "it is unnecessary for us to appraise the possible reasons which might have prompted the order to be used in the form it was." It was outrageous as the "reasons" which Black chose not to "appraise" were blatant and virulent racism.
If we see Kavanaugh as modeled on Black, it means we can expect Kavanaugh to spend his time on the Supreme Court advocating for whatever Trump wants, while deliberately preventing the Supreme Court from redressing any of the terrible things Trump does, including blatant violations of civil rights.
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One can hope that past is not prologue in the case of Kavanaugh. However, his intemperate performance does lead this reader to doubt that Kavanaugh will overcome the shadow of these accusations. In addition, his lying and evasion on other matters shows that he was more interested in being confirmed than in giving us an honest picture of himself as a judge and a person. This does prove one thing; Kavanaugh is perfect for the agenda and attitudes of the current occupant of the White House and the GOP dominated congress.
The GOP has confirmed a candidate who probably lied about more than his underage drinking. Unlike what happened with Clarence Thomas, this was done with the full knowledge of how devastating such attacks are on women and how it can affect the Supreme Court in terms of the trust from the people of the United States. I do not see the current administration behaving, legislating, or acting on behalf of 99% of Americans. There is no apology they can make to mitigate what they have done.
I wish the Senate had judged him on his judicial record instead of a 35-year old unsubstantiated allegation. They could have insisted that he be more forthcoming about his beliefs and his records. Then two or more senators could have switched their votes and stated that they would vote for a moderate candidate. But they didn't.
Instead, it looked more like a referendum on #MeToo, influenced by the sincerity of Ms. Ford, the lack of time to investigate fully, the fact that it was a long time ago, and various other twists and turns.
But look again. It wasn't that either. For all practical purposes, it was a straight up-and-down party line vote. Everything the Senate did in the hearings was a sideshow, and nothing but a bombshell of new information could have changed the outcome.
It was a simple test of party loyalty, and nothing else.
Interesting point of view. I'd like to see Rand Paul do any of these kinds of things. Civil Libertarianism has become an even worse brand of extremism than the "normal" extremism of today's right-wing Republican Party. It's no wonder that he is a Senator from Kentucky.
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The US ranks 94 out of 113 counties for access and affordability to civil court justice. Google it. This is ,my observation as a retired lawyer practicing in CA from 1970 to 2010. Tort reform is a euphemism for this restriction. I don’t feel confident that Justice K will help turn this shameful situation around.
Greenhouse is missing an important difference, Kavanaugh did nothing. The accusser was a paid actor from a disgruntled politcal party whose witnesses all said she is a liar. The stain is on Democrates, not Kava.
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And then we'd have to listen to trump humiliate kavanaugh the way he humiliates Sessions.
But it's hard to believe trump would give a lifetime appointment to someone if he couldn't be sure the candidate would put the republican agenda and blind loyalty ahead of conscience. He could fire an AG, but he can't fire a supreme court justice.
I see Kavanaugh as a seventh day revanchist out for payback. I would be delighted if he proves himself otherwise. But I will not be holding my breath.
Not holding my breath....
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Any lesson is worthless without a willing student.
Here, there is not one.
As demonstrated in spades, Brett is convinced of his own rectitude and the just causes supporting his biases, which he no doubt conceives of as noble commitments to principal.
Not only that, Brett is clearly incapable of independent thought or bold individual action.
Everything in his personal history confirms this but, more important, he is now fully beholden to a political cabal which daily demonstrates their willingness to sacrifice principal, their country, and any individual to attain their ends (not to be so dramatic, I should have "to get whatever it is they want").
Hugo Black lived in a time when men considered the means. Today, in court in America, its only about the ends. And Brett is one.
Justice Black shows that people can change. It takes great character, fortitude and luck to do so.
Kavanaugh is weak, sycophantic, a liar and "entitled." His demeanor and actions consistently show there is no "goodness" in him. Certainty that he didn't commit assault is buttressed by his alcoholism - he simply didn't remember. But in his heart of hearts, he knows.
Be afraid, very afraid.
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I have reflected upon this column and do find parallels between the appointments of Justice Black and Justice Kavanaugh. Both men had/have strong ideological view points, ones they shared/share with the Presidents who nominated them. While Black had his KKK experience, he apparently had put that behind him and shared President Roosevelt's goals and philosophy.
Kavanaugh is a well groomed product of the rigid thinking Federalist Society, and everything he has done, written and said (except a few last minute platitudes) reflect that ideology. He seems to share the goals and philosophy of Trump, albeit not so crudely.
Both Presidents knew what they were getting; Roosevelt wasn't surprised or disappointed by Black's rulings, and Trump, I fear, won't be surprised or disappointed by those of Kavanaugh. Kavanaugh does not strike me as an open minded, empathetic, thinking person. Rather, I see an entitled follower of dogma. It would be better if Justice Kavanaugh, at some point, could be compared favorably to other Republican nominees, such as Justices Souter and Stevens, rather than Justice Black. Time will tell, but I am not holding my breath.
YEs, but Justice Clarence Thomas gives the counter example.
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I have a nephew who displayed some of Kavanaugh's behaviors while he was in college: drinking to excess and engaging in sexual behavior, sometimes unprotected.
After he graduated from college, he commented that he had done some really stupid things that he now regretted, blaming some of it on his immaturity and the peer pressure within his fraternity.
My nephew is now a doctor with a thriving surgical practice. I don't think any of his patients would care if they were told about the "stupid things" he did as a college undergraduate. It is his reputation and his skills now that matter.
I would think more highly of now Justice Kavanaugh if he had been more straightforward about his past behavior and honestly said that he did some "stupid things" in high school and college that he now regretted and that he now apologizes to those he had offended.
I agree with Ms. Greenhouse in hoping that Justice Kavanaugh will be a worthy member of the Supreme Court. But I'm pessimistic!
I won't hold my breath that Kavanaugh will come to any realization about how partisan he is and how partisan his judgements are. I expect he will double down on them.
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sorry but justce black's racism was not the same as kavanaugh's theology and legal training.
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Good story. Me too.
Thank you for such enlighten article. I’m suspicious of Justice Brett Kavanaugh because his confirmation was forced by President Donald Trump; his Republican Congress and the triumphant rehearsed speech of Senator Susan Collins. The president never instructed the FBI to do a thorough investigation on whether Mrs. Christine Ford had been sexually assaulted by Brett Kavanaugh during their teen years; in fact, he made a mockery of Mrs. Ford. He also disregarded the sexual allegations of Deborah Ramirez who claimed Brett Kavanaugh sexually attacked her while in college.
At his “rallies” and in front of the cameras, President Trump has no problem lying. He loves talking about himself; he claps repeatedly asking to be clapped; feeds on disorderly conduct; encourages violence and uses offensive names when referring to his opponents.
Our Commander in Chief and the Republican Congress own the 3 branches of government; they took it all in and yet; they’ve the audacity to call the Democratic Party the “mob.” What a farce!
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As a senator Black also presided over hearings in a manner that prefigured the tactics of Joseph McCarthy and his followers after WW II. His political behavior provides no explanation for his transformation. We can only say sometimes it happens. But not often, and not now.
Many comments here angrily bemoan that Kavanaugh was tarnished by false/made-up charges with no evidence or corroboration. There were many people who came forward, including his freshman year roommate from Yale, who do corroborate that he was frequently extremely drunk and often belligerent in that state. I have no doubt that Dr. Blasey Ford and Ms. Ramirez are telling the truth. The lurid details of his yearbook page, and his very own calendar which clearly shows that he attended a party on 7/1 with all the same people that Blasey-Ford says were at the party she attended are not evidence? I guess we'll never know, because when Rachel Mitchell started questioning him about that entry on his calendar is exactly when the GOP committee members decided that she was done for the day and launched into their whiny tirades.
What we do know is that he lied in this and in prior confirmation hearings about his role in the GWB Whitehouse as it relates to documents stolen from democrats and about the legal work done to enable the 'enhanced interrogation' (i.e. torture) program.
You can spin this any way you like, but if accusations like this had come up about one of Obama's SCOTUS nominees I think we all know what would've happened.
Perhaps Kavanaugh will redeem himself. But I'll never forget his fiery performance and his indignation. Oh and his fake claim about why he was a member of "Renate Alumnius (sic)."
The principal difference between Black and Kavenaugh is Black apologized for his youthful indiscretion, Kavenaugh screamed his contempt about forgiveness and owning past mistakes. People with Kavenaugh's character usually relish in their poor-me syndrome, for life.
Way too soon for this column Linda. Our hearts and souls are still raw from the past few weeks, not to mention the ongoing painful and ugly attacks being made on Dr. Ford.
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Unlike Black, Kavanaugh has not acknowledge the possibility there may be any truth to the allegations against him. Instead, he has "forgiven" those who opposed him, which means he still believes he has been treated unfairly. The Very Stable Genius's apology was especially appalling, even for him. If Kavanaugh admitted he might have been too drunk to remember these incidents and apologized I would be much more hopeful about his tenure on the Supreme Court.
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Sorry. Am I supposed to take any comfort from this?--because it's not working.
What we have is a president who was openly endorsed and embraced by the Ku Klux Klan and every fringe white supremacist group out there, who obviously still feels good in their company and is doing everything to encourage to encourage their racial hatred and animus.
And as in almost every circumstance in life, this kind of activity and mentality always starts at the top -- that's why the choice of Brett Kavanaugh, everything that was done to ensure his installation, and all future Supreme Court choices of this president should concern ALL AMERICANS.
Because if one group isn't safe, no one is secure.
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The shameful travesty of the Democratic attacks on Kavanaugh through a vicious smear campaign have no parallel in American tradition. I hope only that future attempts to smear candidates will note the outcome and come with evidence, not garbage.
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Excellent article!
If you agree with me you'll be a good justice.
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Kavanaugh is basically Trump's puppet on a string. He will do his master's bidding. Dr. Ford should file a lawsuit against this drunk and prevent him from tainting the Supreme Court.
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I remember something about Justice Hugo Black when I was in my 20’s—in the 1960’s—and the supposed resurrection of his days as a Klansman-cum-Supreme Court Justice. It never occurred to me that a Southern white man could, by sheer force of personality or will, reconstruct himself from the chains of nakedly racist partisanship to that of fair-minded, balanced jurist. But here’s the thing: as Ms. Greenhouse writes, Mr. Black never denied his Klan membership and never apologized for it. So there’s that.
Now-Justice Brett Kavanaugh, by contrast, came off as hysterical and unbecomingly uncivil and ungallant in his attacks upon the ladies on the Judiciary Committee. I think that any fair-minded person would have been more than willing to hear him acquit himself of Christine Blasey Ford’s charges. However, his history of underage drinking and general irresponsible behavior mitigated against him in the people’s court. She was believable; he was not. And his denunciation of his nay-sayers was juvenile and unwarranted.
Unlike Justice Black, Justice Kavanaugh has much to prove and his closeness to his president will weigh heavily against him. He had as well as admitted that he is shamelessly beholden to Donald Trump. He’s disqualified himself from any public view as impartial.
I hardly think one can compare the ignorance of prejudice -- which, hopefully, can honestly be overcome -- to predatorial sexual behavior compounded by alcohol. The latter is not likely to change, no matter how one disguises it.
Kavanaugh, I suspect, will surprise us in some decisions. They always do. But let's not kid ourselves. The pathos and guilt of a Southern racist is a far cry from the self-examination forced upon privileged frat boy during the hearings these last few weeks. Kavanaugh may be somewhat humbled, but given the dog fight in his psyche between humility and entitlement, I would put the long odds on rulings that bear out his story of entitlement.
Hugo Black wasn't groomed by the Heritage Foundation and the Federalist Society.
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Fortunately having to curry favor with Linda Greenhouse is no longer de rigure for Supreme Court justices - they know how your paper treated them before and expect no better treatment later.
Like an appendix, she has become superfluous to our body politic.
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Did Mr Black lie brazenly during his confirmation hearing, insult the senators questioning him and resort to partisan conspiracy theories?
How can you rationally compare a man who was part of the KKK with a man who claims passionately that he is innocent and was accused without corroboration in a politically motivated hit designed to delay the nomination beyond the election? Hugo Black certainly had a past to make amends for, Kavanaugh does not.
Perhaps the better question would be, can Diane Feinstein make a turn in her life and career to make up for what she did to Kavanaugh in a way similar to how LaFollette redeemed himself, perhaps.
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Kavanaugh has denied the allegations. Every witness provided by the accuser has claimed either no knowledge or stated they did not know her.
As an attorney, it pains me to say this, but it sounds like about 1/2 of the population needs to be falsely accused to understand the importance of the presumption of innocence. With a little bit of research virtually anyone could be accused of this type of crime.
On a different note, I can't help but laugh at the Left given Black was a judicial activist. He found or created rights which had never existed in our history. Yet, the Left is decrying the fact, that we might (and I am very sceptical) get a Justice who understands his oath is to the Constitution. Decisions rendered contrary to the Constitution should be overturned instanter.
Lastly, for the crazy lefties, why don't you read Article 1 and Article 3. Instead of some stupid Roosevelt era packing the Court scheme simply limit the scope of Federal Courts (the Constitution specifically provides for this).
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Linda Greenhouse’s fascinating deep dive into SCOTUS’ labyrinth of white male opacity resonates with me most in this passage:
“In the wake of the Kavanaugh confirmation, this nearly forgotten episode is worth resurrecting after 81 years.”
It begs the question, “In the year 2099 - 81 years from now - will the American criminal justice system be properly reformed enough to use white male behavior in a court of law as evidence for convicting guilty parties of their hidden violence towards women?”
If the answer is “No”, then my gut tells me that it is time we start to genuinely study the Future instead of only studying the Past.
Translation: Time’s up for SCOTUS to stop unilaterally ignoring the fact that Neuroscience has been politely knocking on the doors of One First Street for decades now.
It was formerly common to be able to get a law degree in lieu of a college degree, especially when Justice Black was young, and the University of Alabama School of Law was (and is) an excellent institution.
Hugo Black also completely disavowed the KKK, which is more than Brett Kavanaugh can say for today's Republican party.
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Kavanaugh has done nothing wrong. He has been a victim of a campaign of character assassination fueled by lies, lies, lies.
Kavanaugh and Gorsuch are injustices on the Court. The lying thieving Republicans in the Senate have made this Court illegitimate, and the only thing that We the People of the United States can do about it is vote against ALL Republicans.
Our elected representatives work with borrowed power. We the People take our power back on Election Day. The Republicans have abused the trust that some people put in them. We deserve better than another liar on the Court nominated by a liar, confirmed by a gang of liars and thieves.
Talk about wishful thinking. Comparing Justice Kavanaugh to Justice Black is way off-base, and very disrespectful of Justice Black.
Justice Black made news by announcing that in fact, it was true that he had joined the Klan.
How did Justice Kavanaugh make news?
His response to Democratic senator Amy Klobuchar's question on whether he ever blacked out said it all. His sneering “Have you?” response, which he asked twice in order to clearly emphasize what he was saying, will forever be seared into my memory of who the true Brett Kavanaugh is.
Kavanaugh's statement blaming Senate Democrat's “revenge on behalf of the Clintons” also rings a bell as well....
Oh yea, also....Kavanaugh sure had fun at the post-swear-in party that Trump threw in his honor....cocktails and a band, no less...
Bottom line -
Justice Stevens....35 distinguished years on the Supreme Court.
Justice Kavanaugh.... I believe Dr. Ford, not that bloke....
Perhaps there is no worse creature of Washington than Kavanaugh. Yet the Trump supporters who yell "drain the swamp" were adamant in their defense of this person. Hypocrisy knows no bounds.
Interesting piece. Being an optimist, I hope Kavanaugh follows in Black's footsteps. But Black was nominated by FDR, someone who was trying to pull the American people out of desperate circumstances by creating a vast safety net for the vulnerable. Kavanaugh was nominated by a corrupt, thieving simpleton who is only trying to enrich a bunch of crooks. Big difference.
Apples and oranges. Does anyone really think that Kavanaugh has the sense of humility, decency, concern for "We the People," and patriotism that Justice Black did? If that were so, he would have withdrawn his nomination for the sake of the Court and the nation instead of having a hyper-partisan narcissistic toddler-tantrum in front of the world. The Court will be tarnished and disrespected by a majority of Americans as long as he's there. Just one more formerly respected and great American institution that the treasonous Republicans have, or have been trying to, ruin since Reagan.
"... And as we all know, in the United States political system of the early 2000s, what goes around comes around."
NO ONE is entitled to threaten me...
... let alone someone facing the most idiotic nomination process for the Supreme Court conducted by Trump's GOP court jesters.
And where is the legitimacy of a nomination from Trump who is currently under a criminal investigation that has nailed at least 32 people, THUS FAR - many of whom have close ties to Trump's campaign.
There is no comparison because this farce is unprecedented.
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He needed to be a naked partisan to get his seat. Now however he is free to do the right thing. let’s see if he does.
Ms. Greenhouse: In writing of Kavanaugh and Black, you say of Black “The issue was not sex but racism.” The origin of the issue(s) with Kavanaugh was not sex. It is sexual assault. In my experience, there is a vast difference.
There is a profound difference between Hugo Black and Bret Kavanaugh that tells all why it is highly improbable Kavanaugh will ever change his demeanor (i.e. drop his far right conservative views).
Black was born to a poor family in a poor rural village. Black had no privilege, no silver spoon in his mouth, no sense of 'entitlement'. and no legacy to grease his admission into Ivy League schools. Black enlisted into the Army and became a captain in preparation for duty in WW1, he was never sent.
Kavanaugh is an only child, born into wealth, attended expensive private schools where his schoolmates were from identical socio-economic families, was admitted into Yale in part due to legacy, has never served in the military or similar non-military service (i.e. Peace Corp, VISTA) and has a verifiable reputation as an adolescent and young adult reprobate.
Whereas Black from childhood had no direction to strive for than 'up', Kavanaugh was born into the top so he sees his ultra-conservativism as the only means of preserving his position.
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@Jim. Well said! A recent article tried to compare kava to Earl Warren and his role in incarcerating Americans of Japanese descent during wwII.
Like Black, Warren a vast set of life experiences which were called on to interpret law.
Kava born to wealth and nurtured by good ol’ boy network has very shallow life experiences!
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I see the point you are trying to make Ms Greenhouse. I wish I had your optimism about Kavanaugh. However, Kavanaugh's openly partisan words and threats at his hearing along with his lies throughout his confirmation process he will evolve over time like Justice Black.
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This is an excellent, thoughtful column. I hope Justice Kavanaugh keeps his head down, focuses on his cases, and shuns the limelight. It will likely take years but maybe he can redeem himself for the sorry spectacle he forced us to endure.
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When things political have taken a turn that I found discouraging, I have always had some hope that things will turn out better than expected. They have generally been immeasurably worse, i.e., George W Bush's two wars, but perhaps like Greenhouse we can hope that Kavanaugh will rise to the occasion and indeed be a judge for all the people.
Thank you for this enlightening piece about Justice Black. I think he was a person respectful of the awesome responsibility of the Supreme Court to ALL the people and so he evolved to become a supporter of the rights of all. Kavanaugh came up through 25+ years of Republican partisan politics, from a key role in the Starr investigation to a staff position in the Bush White House. He lied in his testimony in 2002, 2006, and most recently before the Judiciary Committee—new charges will be investigated—and it’s clear he has pledged his loyalty to Trump. I don’t think we’ll be seeing any changes of spots on this leopard.
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Roosevelt’s reaction to Black’s radio address, that “it did the trick”, demonstrates how political the Supreme Court had become even in 1937, that the president was willing to overlook what apparently was an admission that Black harbored hatred for blacks and Catholics (and let’s not forget Jews, Linda) in his desire to see an ideological supporter remain on the Court. A majority of the people believed, after the speech, that Black shouldn’t resign either – probably because a majority of Americans at the time still had misgivings about blacks, Catholics and Jews.
I suppose that the lesson offered here is that if Black was capable of transforming himself from a divisive hater into a great civil libertarian, maybe with time Kavanaugh will forswear beer … or “boofing”. But he’s unlikely to become a liberal.
Yet I’m impressed by the political moderation of Linda’s essay, which is refreshing after all the bile we’ve seen on both sides over this confirmation. However, while I understand the compelling nature of bringing up Hugo Black (who died over 47 years ago) to illustrate the point Linda was making, I was actually wondering whether she would interview Sandra Day O’Connor, who is not only very much still kicking but, as a kinda-sorta conservative who also had and has decided ideas about women’s rights, could have something very interesting to say about the Kavanaugh confirmation process.
6
Having followed Linda Greenhouse's superb writing on legal questions -- and often disagreeing with her -- she can be counted upon to argue (with great intelligence) the liberal side of almost any issue -- I find this piece spiritually generous. I see others have fastened on to the term "tarnished" in her description of Justice Kavanaugh, and I share their objection to the term. But one word aside, the essay is hopeful and humane. In a society where all public issues have become radioactive occasions for the expression of pure venom from every side of our many divides, Greenhouse's hopes that Kavanaugh might fulfill his potential to be a great justice for all Americans is most welcome. Let's not make the perfect the enemy of the good. She has more than wished the new Justice well; she has hoped that his most ardent hopes come to fulfillment. This piece is a most welcome change from what has become standard vituperation on the left.
1
It's amazing to me that almost everyone seems to know for certain if Kavanaugh is guilty or not. The hearing, the testimony, and the FBI investigation proved nothing, as far as I could tell. I know no more about Kavanaugh after all that than I did before. Yet, at least according to most of these comments, most people seem to know definitively whether he attacked Ms. Ford or not. Lots has been written about "justice" in this case, but how can there be any for either him or her when there are no facts to base a decision on? Lack of factual evidence is not proof of innocence. But, it's not proof of guilt, either. The only two people who will ever know the truth are Kavanaugh and Ford. The rest of us will have to live with never being really sure. And, that's why there will be a cloud over his time on the court. Maybe he will be a great justice, maybe not. But, however great or not he is, Kavanaugh will forever be haunted by his nomination, which is why I think he should have withdrawn from consideration. Respect for the court should have been his overriding consideration--not his own self-regard.
2
Thank you Linda Greenhouse for giving us hope that Justice Kavanaugh could follow in the footsteps of Hugo Black. But for those of us who were born to see the glass half empty, Justice Kavanaugh can also follow in the footsteps of Justice Clarence Thomas.
2
Except he’ll probably talk more.
I think that a great read would be Naomi Klein’s most recent about those that inherit all their money and privilege. They are unable to see beyond their own little club that they see as granting them rights and status. I have trouble seeing any eye opening by Kavanaugh. The tendency toward authoritarian rule is growing.
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@Tricia
I think it would be great if people didn't use stereotypes to justify their prejudices.
1
Good commentary, Ms. Greenhouse. And one that underscores the importance of diversity of region and background on the Court and the fact that the Constitution does not require attending Harvard or Yale Law, or clerking for a Supreme Court justice, for nomination as a Supreme Court justice.
Kavanaugh can play for the history books or seek retribution against political opponents. He will be a conservative justice. That will not change. But he will show an open-mindedness and occasionally surprise Supreme Court observers by how he votes and writes his opinions. We will find out.
It seems to me that conservatives, especially the Heritage, know a whole lot more about candidates they put forward. There seems little chance of a Warren, a Stevens or a Souter emerging from these ranks.
Thank you. I'm old enough to remember clearly the more recent of Justice Black's decisions. It's both good and comforting to be reminded that life and persons are both complex and unpredictable. We can be the agents of our own redemption.
4
There is an important distinction worth noting. Justice Black's career as a great civil libertarian was consistent with the ideals of the president who nominated him and those who supported his confirmation. Should Justice Kavanaugh likewise turn out to be a champion of the rights of women and minorities, his appointment will be considered a failure by the president who nominated him and the Federalist Society that vetted him.
9
@Charles L. All four of his clerks are women and one is African-American. He is leading by example.
2
@Burton Let us hope that they have a positive influence on his decisions for it is those decisions that count. As a former law clerk at the United States Court of Appeals for the Second Circuit, I have seen it happen though rarely. In the unlikely event that Kavanaugh does move away from far-right jurisprudence, however, he will sorely disappoint his friends at the Federalist Society and the Heritage Foundation. They would consider any such move a betrayal.
Ms. Greenhouse, I know you are trying to find some good in this despicable man being on OUR U.S. Supreme Court but my children and I will be long dead before Kavanaugh and his corporate-catholic male brethren actually find jesus and change their minds.
I see the NYT "boys" are having a discussion on his nomination and Roe v Wade today. Boys talking about an issue that only matters to the other half+ of the population - women? What a farce.
The Koch and catholic church "boys" think they won. They think this is some kind of game. Boy, do WE THE PEOPLE have news for them. It's not a game and WE will not allow them tell US how we can live and what WE can do with OUR bodies.
Not now. Not ever again.
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My apologies to Michelle Goldberg, who is participating in the discussion. Still, there are two men and one woman. Why is that NYT?
1
@njglea "We the people"? This is quite entertaining! You are not representing ALL the United States citizens. You are just one individual, and it would be much more appropriate to speak for yourself because you have no idea what the United States citizens as a whole think about justice Kavanaugh, and your threat is just empty.
1
We'll see, Mr. Hanganu. We'll see.
Unfortunately, this analysis overlooks the most significant difference between the two. Black was appointed by a progressive President, presumably as someone who would advance his agenda while Kavanaugh was appointed by a regressive President, who wants to return the gov't back to the way things were in the early 20th century, pre Roosevelt. Black's objectional history caused Roosevelt supporters to mistrust him, while Kavanaugh's history and denial only endeared him to Trump supporters.
Trump's vigorous, and wholly inappropriate defense of Kavanaugh suggests that he believes that Kavanaugh owes him one.
Of course, Kavanaugh is now free to vote how he wants, but it is truly wishful thinking that Kavanaugh will veer from his judicial past in defiance of Trump and much more likely he will embrace it ever more vigorously in defiance.
6
Sounds like lying by Supreme Court nominees is the norm for the confirmation process. That is so comforting to hear. Maybe we should rethink lifetime appointments to the Supreme Court. Given the longer life expectancy in modern times versus the 1700's, a lifetime appointment may be excessive. Maybe 20 year terms can keep the Supreme Court relatively independent. On a separate note, being an originalist just means keeping old white male control. It is not surprising that conservative Catholic Supreme Court Justices ( Roberts, Thomas, Alito, Gorsuch and Kavanaugh) are all originalists, just like the traditional Catholic Church.
5
I like the way Linda digs deep to find things "lost in the mists of time." That effort is especially valued in legal research. I like the way she thinks creatively, along unexpected lines.
Yes, people can and do sometimes rise to an occasion in surprising ways. Then again, they are surprising because that is not such a regular thing. People disappoint too, and most often they show themselves pretty much what we knew they to be.
Another like Hugo Black was Earl Warren, appointed as a reliable conservative by Eisenhower, who went from being the California Governor who committed the Japanese internment during WW2, to being the Chief Justice who gave us the Warren Court.
We must certainly hope Kavanaugh is an exception of the Hugo Black style, since we are stuck with him now. We need another Black or Warren now, very badly. However, like Black and Warren, he'd have to show us, and surprise us, to do that. He has done nothing to warrant such faith in him yet.
Black may have been in the KKK, but he was also already a Senator who was on side with FDR. Kavanaugh is on side with Trump. It isn't the same thing.
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The GOP mantra for Supreme Court nominees has been "no more Souters" -- referring of course to David Souter, the Bush I pick that became one of the Court's most liberal members. Souter had little paper trail and so was easy to confirm. Not so Judge Kavanaugh whose history as a GOP foot soldier and long paper trail made him the most difficult to confirm on the Federalist Society short list, in the judgment of Mitch McConnell. Ms. Greenhouse's tale redemption is inspiring and anything is possible but I would be surprised this GOP hothouse flower takes a similar path. It's a nice thought though.
3
Not holding my breath.
1
Black was Roosevelt’s guy and followed his lead on the court. Kavanaugh is Trump’s guy all the way. He even took direction on how to act on the last day of the hearings. Yes, there is a parallel of sorts. Sadly, Trump is no Roosevelt. Trump is a con. What does that make Kavanaugh?
4
I won't hold my breath.
3
The issue, concerning Kavanaugh, is not sex, as you write, it is sexual ASSAULT.
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@No Not sexual assault, but a political smear. Ford could not provide any evidence for her accusations, so she lied under oath, for which she should suffer the proper legal consequences.
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@Eduard C Hanganu
Goo good.
So what you believe is that no one should report a crime until and unless they have sufficient proof to convince a jury?
Very good. I will take this as a signal to Jerry Nadler and the rest of the left-wing mob that impeachment is off the table.
Chill with the ‘left wing mob’ thing. Be original. Don’t just repeat propaganda from your favorite talking heads. The left aren’t the ones chanting “lock her up” to someone who isn’t in office. Last time I checked, dictators in 3rd world countries encourage their supporters to yell stuff like that. That’s true mob behavior.
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Why are we a mob, and not the cabal that selected and confirmed him? Couldn’t you guys find someone who would garner more than 50 votes on the floor?
I don’t want to impeach Kavanaugh. I want to reduce the court to 8 justices. We can de-select Kavanaugh as last-in, or Gorsuch as illegitimate. And we can enjoy an era without 5-4 decisions upending settled law, be it Roe or Obamacare or the voting rights act.
He will stay loyal to Trump.
while he could withstand and fight back a sexual assault allegation. He cannot withstand a mean tweet.
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Brett Kavanagh said a Linda Greenhouse column inspired him to hire women clerks. It is hard to imagine him being anything other than what his reactionary masters expect him to be.But I know I would not want Linda to be disappointed in me. Even though she knows nothing about me.
By using the word "another", the headline on this column states as a matter of fact that Justice Kavanaugh is "tarnished". Nothing could be further from the truth. If anything is tarnished, it is the reputations of the disgraceful Democrats who tried to destroy this man's life. There is nothing tarnished about Brett Kavanaugh's personal or professional life, and there are simply no facts that establish any other narrative. The facts show that everything about this man, personal and professional, is exemplary.
This headline is false and should be corrected. Frankly, it is libelous. But we all know it won't be corrected, because that is the way the so-called news operates these days. They put the little "Opinion" above the headline and believe it gives them the leeway to write whatever lies they want. No wonder their credibility is fading with each passing day.
Why does the NY Times go to such lengths to confirm Donald Trump's claims of "fake news"? Do they not think readers see through headlines like this one? Do they not realize that headlines like this one, when compounded thousands and thousands of times over the last three years, are exactly why the left is losing so badly on every front?
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First, “tarnished” is a fact. You may believe the allegations are false or malign, but they are now undeniably part of his reputation. You may believe his protestations were genuine, but yelling at senators during a confirmation hearing is unprecedented, not to mention unbecoming.
Second, “Democrats” did no such thing. The allegations were raised by members of the public, not by politicians. Democrats tried to get the allegations investigated. Republicans resisted; one must assume they didn’t want the truth to come out.
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@JRDIII
I am sure there were contemporaries of Black who didn't find his association with the KKK troubling, too. In the minds of many Americans--some polls of public opinion suggest most--the accusations against Kavanaugh, while unprovable, have indeed tarnished him. Others who remain agnostic on the veracity of the charges feel that he has diminished himself in the conduct of his defense against them.
@JRDIII accusation is "tarnish"? Not in the America I know. So commented- but it never appeared.
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Recently the Times released a definition of Antisemitism which effectively defined it as any universal negative description of the Jewish people. You can say a specific Jew did something bad but you can't say Jews as a group did something bad. Why doesn't that same concept apply to the Klan. The Second Klan which existed from 1915 to 1944 had as many as 4 million members. Most of those people had nothing to do with lynchings, murders or riots, In fact many of their beliefs were similar to Ultra Orthodox Judaism. Yet all members of the Klan are painted with a broad brush as evil. There seems to be a double standard here. While we're at it, what did the Second Klan say? Jews and Catholics would seek to control and change America. Today the Supreme Court is 33% Jewish and 67% Catholic. Jews and Catholics are significantly over represented in finance, government, and higher education. The Klan also said that the social desegregation of the races would result in the biological mixing of the races. You can say it is a good thing but you can't deny they were right. Many in the Jewish community will say the greatest threat to Judaism is assimilation. If assimilation is the same as desegregation, it seems there is a massive double standard when we evaluate the Klan.
Are you comparing a large and diverse religion to a small and violent terrorist group?
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The Klan advocated and promulgated violence. It wasn’t a study group in racial relations. It was judge, jury, and executioner for those it deemed stepped out of line, whether or not any law had been broken.
No one is born into the Klan. One joins. One joins to support its cause, and to further its goals. As a member, having made that choice, you are part and parcel of all its activities, whether or not you participate directly, whether or not you even agree with each particular act. The stain of the Klan is yours by dint of your choice.
The contrast with Jews and Judaism is too obvious to belabor.
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Timely article, but I don't want to wait 30 years to find out whether Justice Kavanaugh turned out to be a great and impartial justice. I prefer to have some inkling of it now. Isn't that what confirmation hearings are about?
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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.
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JB--When the investigation is completed you will have your evidence. Nothing will ever be found if there is no search.
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@JB The main issue is that he lies under oath about a woman named Renate and his own drinking. It's not always the so-called "crime" but the cover-up. Throw in his hyper partisan accusations and wild-eyed rant at his hearing and you have a lack of judicial temperament. No big surprise there.
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@JB
What evidence is there that Ford's charges were politically motivated???
8
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.
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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.
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@Jason, besides that, Kavanaugh has a long record of right-wing extremism. That is much more indicative than anything else.
@Jason You can get a pretty good idea of Brett Kavanaugh's judicial views from his 12 years on the DC Circuit Court of Appeals. He's more moderate than many seem to think. Certainly well within the judicial "mainstream". Indeed, I think many conservatives may be disappointed in how he votes in cases.
To challenge him for character is, I think, unfair. Christine Ford's allegations were handled abominably by the Democrats, from start to finish. And the allegations by Deborah Ramirez and Julie Swetnick should never have been at issue. To condemn him as a sexual predator based on those allegations flies in the face of the fairness we hold so dear.
As to his "deceptions and intemperate partisan behavior", there are no facts to support any "deceptions" and his behavior was understandable. Imagine if the senators on the committee had treated Christine Ford like they treated Brett Kavanaugh? Badgering him. Making accusations unrelated to the topic at issue. It would have been called an outrage.
And if you think Robert Mueller's investigation is anything Donald Trump needs protection from, think again. Robert Mueller has nothing. His proposed questions for Donald Trump show that. Nothing but perjury traps.
I suspect Brett Kavanaugh will be a run-of-the-mill justice, just like his colleagues on the court. Rarely do we see stellar justices. Almost never.
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@Jason
It's a sad time not just for the republic but democracy itself.
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.
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Just as you were convinced by Kavanaugh’s remarks, and that’s enough for you. God help you. Don’t you see the pattern?
3
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".
3
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.
3
the impregnable fortress of life tenure,
How perfect is this description of so many fears...........
1
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.
18
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.
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@Eric Fisher
What if the denials are true?
2
@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.
3
@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.
1
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?
1
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.
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@athenasowl...I stand corrected, Blackmun wrote on the Burger court.
1
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.
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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.
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@Eric Cosh Don’t hold you breath waiting for Clarence Thomas 2.0 to change his stripes.
1
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.
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.
5
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.
6
Except that Kavanaugh was falsely accused and Black was not.
This makes any comparison to the 2 irrelevant.
8
@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.
1
And how on earth was he "falsely accused "?? There is PLENTY of evidence showing the opposite!
1
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
1
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.
1
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.
4
I believe Earl Warren was another progressive surprise.
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.
1
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.
2
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.
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@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.
2
@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.
1
Hmmm, did justice Black give an emotional and partisan political rant that reveAled a psyche questionable for Supreme Court Justice prior to his appointment?
1
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.
3
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.
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@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.
1
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.
2
@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.
5
Thanks for that 1937 excerpt of a reporter's account of Justice Black's demeanor. It was masterful.
1
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!
1
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.
348
@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.
@WDP
Losing one’s temper and lacking judicial temperament are not the same thing. As far as the KKK, Hugo Black formally resigned 12 years before Roosevelt nominated him, and as early as 20 years prior to his nomination, Black had distinguished himself by bravely representing a black man, deep in the heart of Alabama, arguing that the man’s labor had been a commercial equivalent of slavery.
Moreover, WPP, Hugo Black never lied under oath to hide his background, something Brett Kavanaugh did in two separate confirmation proceedings 12 years apart, taking time in the second proceedings to trash every Democratic senator who dared to question him.
1
I hope your reporting of the past portrays a future for the court that is brighter than we all can see now.
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.
2
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.
96
@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.
1
@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!
Nahhhhh...
2
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.
4
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!
1
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
2
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.
162
@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?
1
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...
A wonderful read.
1
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.
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.
5
"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.
@hm1342
Not less qualified, but certainly with a wider range of experience.
@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.
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.
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!!!
5
@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.
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.
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.
https://www.nytimes.com/2018/10/10/us/politics/kavanaugh-immigration-sup...
The fix is in. And I find the tendency on the part of NYTimes writers toward optimism to be frightening.
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.
1
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.
1
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.
5
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
10
Kavanaugh was installed to become Clarence Thomas 2.0
The damage done by the horrid Trump fiasco continues apace.
An optimist might hope that Kavanaugh will emerge from the one who was appointed to SCOTUS as Trump’s toady. I am a pessimist.
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.
3
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.
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.
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.
3
@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.
1
Wow ! Thank you so much for this much needed history lesson. Kudos to you for your good work
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.
4
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.
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.
6
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.
4
@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.
1
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.
4
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.
1
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."
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.
4
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.
1
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.
1
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.)
8
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.
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.
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.
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....
2
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.
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."
55
@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!
@Kelly
Dear Kelly,
I missed that bit of detail. It was more than partisan it was internecine. Still, the emotion and anger were very similar to the spectacle we witnessed in the Kavanaugh nomination fight.
I hope I'm wrong but I doubt that Kavanagh will be a Hugo Black.
1
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.
2
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.
5
Kavanaugh was nominated for several reasons, the most important for Trump being keeping him out of jail.
29
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.
23
@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.
4
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.
19
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.
19
@Hla3452 But, as the article pointed out, Black was a lapdog for Roosevelt's policies. So that is somehow okay?
1
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.
34
@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.
2
@hm1342
He wasn't stressed before. The pressure revealed his true self. Think about that.
@hm1342
In May 2006, as Republicans hoped to finally push Kavanaugh’s nomination across the finish line, the ABA downgraded its endorsement.
The group’s judicial investigator had recently interviewed dozens of lawyers, judges, and others who had worked with Kavanaugh, the ABA announced at the time, and some of them raised red flags about “his professional experience and the question of his freedom from bias and open-mindedness.”
“One interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship,” the ABA committee chairman wrote to senators in 2006. “Another interviewee echoed essentially the same thoughts: ‘(He is) immovable and very stubborn and frustrating to deal with on some issues.’”
A particular judge had told the ABA that Kavanaugh had been “sanctimonious” during an oral argument in court. Several lawyers considered him inexperienced, and one said he “dissembled” in the courtroom.
https://www.washingtonpost.com/politics/2018/09/28/american-bar-associat...
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.
27
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.
29
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.
35
@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.
2
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.
42
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.
59
@C Wolfe
Of what possible use would a straw be in a maelstrom?
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.
9
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.
60
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?
1
And yet there are no issues with a man who put on the white hood had any concept of balance or neutrality.
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.
22
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.
18
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.
6
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.
26
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.
7
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!
45
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.
65
@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.
15
@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.
2
@dsmetis
Point well taken.
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%.
134
And in 2060, they will say times were different in 2018.
2
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.
6
"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.
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.
82
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.
13
@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.
1
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.
152
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.
21
@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.
2
@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.
1
@MLE53 get over it, a false accusation is nothing more than that.
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.
45
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.
13
@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.
1
@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 .
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.
13
@Southern Boy
Let's hope you're not stepping too far with your prediction about Justice Kavanaugh's future on the bench. People do evolve, so there's hope in that. As for President Trump, I don't share your hopes there. It's too hard to overlook the injustices that he has meted out to many innocent individuals and the embarrassment he has brought to his country.
15
@Southern Boy
Kavanaugh: “I have a squeaky clean past.”
Beto: “I don’t have a squeaky clean past and I apologize for it.”
It’s rather difficult to see why this is so hard to understand, unless one is passionately motivated not to understand it.
5
@Southern Boy
I am a life long Democrat but I can only hope you are right. I read the article on Hugo Black and it did give me hope. I think that hoping that Senators Booker and Harris had something wrong in their pasts only serving to split people.
I have one question. If this president is the president of the whole country, which he is, why is out there making fun of half of the country? (Democrats). Why is he inciting violence against these people? Why is he openly making fun of someone who was raped? I have NEVER seen anything like this. My last point is that I saw a great piece on TV about the poor white men being the victims! Now that is a stretch.
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.
93
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.
5
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.
@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.
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.
4
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.
183
Yes, I truly wish Judge Kavanaugh would blindside and amaze all of us horrified by his confirmation with a judicial, even-handed swing vote.
27
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.
72
@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.
3
@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.
3
@david - Always giving excuses as long as he's a Democrat
1
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.
37
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.
13
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.
314
@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.
1
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.
76
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.
120
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.
23
The Federalist Society put Justice Kavanaugh on the SC - it’s too much to expect Kavanaugh will not repay the favor.
3
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.
465
@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.
2
@Mike Gera
I would add, "Sorry, Linda. Bret Kavanaugh is no Hugo Black, and never will be".
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.
59
better to play the lottery. your odds are better than him changing
In the meantime, don’t hold your breath.
@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.
2
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..
146
@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!
2
@red sox 9 That statement is not at all obvious, and it is targeting a individual, so your example is very poor.
@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.
1
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.
168
Great article. Great perspective on this event. I, too, prefer the sunrise side of the mountain.
16
@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."