Kavanaugh didn't hate liberals until you slandered him and tried to destroy him. Perhaps you should take that into account when Trump nominates Ginsberg's replacement.
6
R's have their eyes on the prize. Nothing else matters. Nothing.
9
It’s utterly bizarre that this is still ongoing. If Kavanaugh was decent, he would’ve withdrawn. If Trump was decent, he would’ve gone back to the drawing board at the first sniff of this. Are Americans not bored of such self-serving idiocy yet?
14
"His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies"
Seriously? It is not conspiracy when everything was broadcast in the open: Democrats promised to oppose no matter who the President picked. During the hearing they tried to disrupt the process rather than trying to get to the truth on these accusations that they were sitting on. Now they are moving the goal posts and will try to delay and prevent this confirmation.
I can't imagine anyone in the middle using any bit of logic wouldn't see right through this. I for one am very turned off by all of this and look forward to voting. I will never again vote for a Democrat after what I have seen in the last couple of years from this party.
2
Kavanaugh should also be impeached from his current appointment on the DC Circuit Court of Appeals due to his perjured testimony and judicial temperament as revealed to us during his testimony. He's a political hack with no respect for justice and the law.
3
Any justice that compromised is not worth the effort. Withdraw Kavanaugh and get someone with the proper temperament and who isn't hobbled by his own vitriol.
6
Better that he recuse himself from the court in general and even from his current seat on the Court of Appeals. Someone who lies and evades questions with belligerence is not worthy of being a judge.
11
As someone who has fallen prey to an abuser, I just have to say that the GOP is only as good as the company it keeps.
And they are facilitating a lot of abusive people.
The excuse I keep hearing to justify Brett's behavior and steamroll Dr. Ford's testimony (reminder, she is 100% certain that it was Brett Kavanaugh) is that Brett Kavanaugh is perfectly entitled to his temper tantrum because Democrats have given him a hard time.
That is exactly what an abusive man routinely says to justify assaulting a woman half his size.
I have lost all respect for this Trump party.
We, the people, need to clean our House.
AND the Senate.
2
Welcome to what may become the new normal, a Supreme Court in which nominees are willing to do or say anything for a coveted spot on the bench. “Partisan” doesn’t even begin to describe it. Kavanaugh has already angrily denounced the supposed liberal conspiracy against him, virtually telegraphing how he will vote and showing a clear bias not fit for a judge.
He will be beholden to Donald Trump and the rest of the GOP for as long as he serves. In any other administration, Kavanaugh would have been disqualified long ago. Others are falling in line, too, like Rachel Mitchell, who said what Republicans wanted to hear and was played like a pawn by old men who didn’t like the optics. Yes, indeed, Mr. Graham, this is a sham.
4
Kavanaugh is right to not commit to recusal apart from specific cases, which—by the way—would result in a balanced court for such issues. Professor Tribe’s arguments belong to particular cases to come, in terms of case specifics, not hypotheticals.
Kavanaugh’s irrateness before the Judical Committee is not about his judicial credentials or judicial temperament (which has proven itself over many years of judgeship and 30+ years of career in law). Like a trial attorney who dramatically defends a case during summation before a jury, Kavanaugh was thrust into the role of defendent arguing his own case relative to sound bites initiated by Committee members.
But we don’t ever credibly claim that having been a trial attorney is evidence against ability to be a judge. “O, he can’t be a fair judge, because, as a defense attorney, he is biased against prosecutions.” Indeed, the great trial attorney is one who “reads” the position of judge astutely.
Political theater is no venue for evaluating judicial temperament when a candidate already has a long track record of excellent judial temperament.
Keep in mind: Demonstrable faiure to recuse can be grounds for impeachment. That condition—likely cause for recusal in a specific case—might cause more balance on the court than some alternative candidate chosen by Trump’s lackeys.
3
>require
We conservatives are done listening to the Left ruminate on what they "require" of us.
1
I understand that there is no requirement for Professor Tribe to be impartial as a judge.
But, c'mon. After Justice Ginsburg's well publicized comments about Trump, has Professor Tribe ever - even once - suggested that Justice Ginsburg must recuse herself from any cases involving the executive branch's administrative agencies while Mr. Trump is president?
I don't think so. Instead, what Prof. Tribe says about Justice Ginsburg are things like this (which tweeted earlier this year):
"Great news: Justice Ginsburg has hired a full slate of law clerks through 2020. Take that, “stable genius” Donald."
1
Kavanaugh wasn't nominated to the Court in spite of "his blatant partisanship and personal animosity toward liberals," but precisely because of them.
2
Kavanaugh "would have to" recuse himself?! There's nobody and no controlling statute that would make him, and given his extreme political views, and stated plans to wreak some kind of "vengeance", he wouldn't.
3
The judge's opinion about Yale Law as being the best in the country would certainly require him to recuse himself in cases being argued by Harvard grads.
2
By the standards put forth by Prof. Tribe, Ruth Bader Ginsberg should resign immediately. "Given [her] blatant partisanship and personal animosity toward [the validly elected incumbent President], how could [she] be an effective member of the Supreme Court?"
3
Professor Tribe raises valid points but they are academic points, not reality based. Force a Supreme Court Justice to recuse him or herself? Good luck with that one, not gonna happen, especially with someone like Kavanuagh on the Court.
6
Spoken like a leftist truly frightened, that the majority Progressive left cabal on the Supreme Court will be nullified for decades.
And so it shall.
Nevertheless, we also note the hypocrisy of calling out for recusal on a conservative, but not for Ginsburg on the travel ban case despite her on-the-record biased comments against the policy, or for Breyer on FERC v. EPSA due to his stock in Johnson Controls, or Sotomayor in Turkmen.
Can;t have it both ways Larry.....
3
No matter how you look at it, he's permanently damaged goods. Trump's primary reason is for a get-out-of-jail-free on Trump's multitude of legal issues.
8
I'm not a lawyer, receiving my Associates degree (2 Year) 20 years after graduating high school. It took Prof. Tribe to put into words my feelings exactly. I'll not repeat them, no need; one doesn't need a law degree to understand the situation that now exists & what the ramifications would be should he be seated on the Supreme Court. G-d help us if he is...
9
I understand that there is no requirement for Professor Tribe to be impartial as a judge.
But, c'mon. After Justice Ginsburg's well publicized comments about Trump, has Professor Tribe ever - even once - suggested that Justice Ginsburg must recuse herself from any cases involving the executive branch's administrative agencies while Mr. Trump is president?
I don't think so. Instead, what Professor Tribe says about Justice Ginsburg are things like this (which Professor Tribe tweeted earlier this year):
"Great news: Justice Ginsburg has hired a full slate of law clerks through 2020. Take that, “stable genius” Donald."
4
So, basically Kavanaugh as a Supreme Court judge would be collecting his salary and perks without doing much work. No wonder he wants it so much!
7
Blatant partisanship? Is that something unheard of on the SCOTUS? Aside form some predicable decisions along party lines, I seem to recall a current justice labeling the current president prior to the election a faker, among other things...
The idea that Mr Kavanaugh would recuse himself from any decision on the supreme court is adorable. Mr Kavanaugh will do exactly what he was put there to do, to rule on the side of conservatism, as defined by the Republican party, no more, no less. I expect nothing more or less from him, and I'm sure I'll get exactly that.
That he appears to be a miserable human being with a drinking problem is just icing on the cake.
So you see, respect for the supreme court has completely disappeared. We're not suckers. We've listened to their tortured rationalizations for completely re-writing settled law enough to know that judicial philosophy is dead. There is only political philosophy; and I am sure that Mr Kavanaugh will grasp that philosophy with both hands, as he has his entire life.
If the Democrats once more seize power, they must pack the court and denude it of its power. Otherwise, they will not be supporting the desires of their constituents, and I think that Democratic voters are finally tired of their wishes being ignored while the most reactionary of views on the Republican side are fought for to the end.
6
Wow! You would think a law professor would know that Supreme Court justices are NEVER REQUIRED to recuse themselves.
8
If Republicans are willing to ramrod this clearly unqualified man onto the SC, why on earth would anyone believe that he would ever recuse himself from anything? Once there, he will take full advantage and make sure what "goes around comes around" for anyone he feels wronged him. And that's apparently a big list.
3
Let's admit it. America isn't working. Hard-line, hard-right GOPers in Congress and the White Houe have zero interest in governing. Moreover, even if they wanted to govern, they wouldn't know where to begin; for, as they see it, to govern is to rule (much the way street gangs rule streets). And as a result this country is quickly falling apart.
The only way out of this ungodly mess is for decent people to stand up and take charge of this once decent land. It won't be easy. And there's no guarantee that decency, in the end, will prevail. But there's no disputing that it's not prevailing now.
16
Professor Tribe.....yes...good points. But next week we will be calling him Justice Kavanaugh.
5
Let’s cut to the chase and state the bottom line. Liberal justices, like Ginsburg, have the right to show their animosity towards Trump without having to later recuse themselves, because, as we well know, they are on the right side of the history.
Liberal justices have the right to break precedents, because they’re on the right side of history. Conservative justices do not have that right; in case they want to be tolerated, they have to at least swear that they will respect Roe vs. Wade, which has been elevated to the rank of constitutional amendement by those who know better,
because, you’ve got it, they’re on the right side of history.
So Kavanaugh is a rapist and a drunk and anything else you want, and the proof for it is that he has political views condemned by history. Let’s not waste any more time on this. You’re with us or against us.
3
I totally agree with Mr. Tribe. Yet Kavanaugh has refused to say that he would recuse himself on any issues. In fact, I fear that he is in a more tenuous situation with regards to Trump. Will he be beholding to him? Does the White House have other information which they could hold over Kavanaugh's head - blackmail..... This is very serious for our country. And very sad for the people involved.
2
The need is dire at this time: for the Fourth Estate to PAUSE...
for the US Senate to PAUSE....; for those who teach Constitutional
Law to teach us the general public... a High School Civic Lesson
about why the US Senate should be wary of putting a nominee
like Brett Kavanaugh on the Supreme Court of The United States.
The stated prejudgments of Kavanaugh would not allow him to
judge impartially.
Read this article over and over again...and then send it forth to
those who need to understand it......
1
What's the chance of that? With Kavenaugh's anger management issues, arrogance and superman complex he's not going to recuse himself when he should. He is above the ordinary man (or woman).
10
Prof. Tribe, who do we agonize over a failed system of appointing and living with less than perfect judges on the Supreme Court. We knew they are not anywhere close to impartial or perfect and yet we venerate a failed system. Why not rethink the entire system? remove the power from unaccountable outside groups, the President and a Senate Judiciary committee from deciding who gets to be a Supreme Court justice.
Other countries have larger courts and not all judges sit on every case? Less perfect Democracies like India, and I believe Israel, S. Africa and others have panels that hear and decide cases, India has over 30 Supreme court judges, not all of them decide all the cases. They are also retired like any other civil service employee, at 65. Maybe on a rotation basis a few of them go down one level to a Circuit court?
Any other system than our current politicized model.
2
To see nothing but partisan malice in Democrats' opposition to Judge Kavanaugh's confirmation might make sense if the allegations against him were not credible, even setting aside the stories of the judge's drinking, which he has shredded his own credibility by denying. But even President Trump has called Dr. Blasey's testimony credible. It is plain, therefore, that Judge Kavanaugh's vitriolic accusations of bad faith on the part of those opposing his confirmation emerge from his inability to see the issue in other than partisan terms, and it is this profound partisanship more than any other shortcoming that disqualifies him for the Supreme Court.
4
Somehow, it's okay for the Republicans to be blatantly partisan. Senator McConnell basically stated that his goal was to be sure that Barack Obama never got a second term. Of course he did get a second term, however Senator McConnell soldiered on in partisanship and denied even a hearing for Mr. Obama's Supreme Court nominee, Judge Garland. I can hear the GOP screams of indignation if a Democrat had done that to a Republican president.
And now we have the stunning situation of a Supreme Court nominee mounting a partisan attack in his own hearing. Such was the power of his words that he ignited partisan fulminations by the Republican members of the committee. Again, the nominee leads and inspires partisanship at his own hearing. His rhetoric was right out of a Trump Tweet play book. He even used Mr. Trumps favorite adjective of shame for Democrats, "disgraceful."
Yet one of the qualifications of a judge in something approaching an ideal world would be that she or he be as impartial as possible.
Judge Kavanaugh will likely be approved, and like the approval of Clarence Thomas, we will live with a more biased and divided Supreme Court for a generation. And neither of them will recuse themselves because they don't have to it.
9
@T Norris Wow. You just described the political process. Everyone wants to get elected. Everyone wants their party in the majority and in the White House. Everyone wants their pick for the Supreme Court. That’s how politics works everywhere and for every party.
Since many of the people and organizations that seek or support or might have a case come before SCOTUS related to reproductive healthcare, woman’s and children’s and racial and religious minorities etc etc etc are or have been affiliated with Democrats, the “left” and / or “the Clintons” and maybe even Dr. Ford or anyone connected to her, it looks like there would be few, if any, abortion-talents cases on which he could legitimately sit let alone decide. Thanks for the shot into your own goal there, kicker Kavanaugh.
4
I am shocked. There has been gambling going on! Your winnings, Mr. President...
2
Kavanaugh's blatant partisanship is exactly why conservatives want him on the bench.
7
Wouldn't it just be easier and better to start over with someone else who isn't as extremely conservative nor as injudicious as Brett Kavanaugh?
2
This article was eloquent and accurate. Unfortunately, it will have little impact. Kavanuagh will probably get confirmed because, in spite of Flake's show, what he really wants, as do Collins and Murkowski, is to tow the republican line which he has, for all his stately comments about the state of politics, done. I can see why Graham and Grassley and others support Kavanuagh: they are vacuous partisans and Graham wants to be secretary of defense. But, after Kavanuagh's testimony, where he blatantly lied and showed extreme partiality, it is inconceivable to me that any honest person could put him on the supreme court...that is, the supreme court of my youth, the one that was populated but honest, impartial, constitutional scholars. Since the court has now become a political tool for both parties the only solution is to have term limits for the judges. I understand the theory as to why we don't, that the Supreme Court is supposed to be above politics, but reality dictates otherwise and no president should be allowed to give a political hack a lifetime job of such importance. Ugh, I have so much to say. Anyway, Thank you Professor Tribe. if only someone was listening.
7
Trump and the GOP cannot understand the meaning of "integrity of the court"...it does not compute in their tricky mind! That is why you have so much problem to name one high level nominee from this administration who is an honest person.Just one name, c'mon...No one.
3
He and RBG ought to both recuse themselves on any political issue.
5
@James Diamond
Why, did RGB use a formal Senate hearing as a chance to specifically identify her personal enemies (by name) and muse about revenge?
6
I'm politically Liberal. I think Trump is the worst President ever. I also think Kavanaugh is accurate to call this "a calculated and orchestrated political hit." This is a partisan circus and liberals need to take a sober look in the mirror.
5
If he'd hopped in their with a Kangaroo suit on and slapped a female Senator in the face, the GOP would just claim he had every right to since the Democrats had given them a hard time.
"You gave me a hard time" is something al ot of abusers say to justify their erratic and belligerent behavior.
5
Dear God is there any day when I could pick up the Times and it would have a positive story about Judge Kavanuagh or Donald Trump?
Did I read correctly your article stating Kavanuagh was a blatant partisan? And what about Ruth Ginsburg, Sonia Sotomayor, and Ellena Kagan? Are they not partisan?
7
Unfortunately, there is nothing good to say about Trump ... and Kavanugh just shot himself on the foot with his behavior on public display for the world to see.... Who on his/ her right mind would want an individual who can not control his temper ? one who showed disdain and animosity without any respect for the process itself, never mind the people who questioned him? This is not a personal attack. This incident happened so long ago . May be he really doesn’t remember. May be he is indeed innocent. He is probably a good family man. That is not the point. The point is that his behavior betrays a lack of growth, what we saw was not an adult capable of self control and confidence. There was no evidence of measured introspection. He did not showed us the adult, the judge he is and the one he aspires to be . Instead, he brought the teenage Brett with him . And that is the problem. Who then,would rule as SCOTUS judge?
5
Your argument falls on deaf ears. Your reasons are exactly why they want to vote in Kavanaugh.
3
where was your outrage when Jusitce Ginsburg showed her partisanship when she made comments about Turmp?
5
Does Mr. Tribe believe that Ruth Bader Ginsberg must recuse herself on all cases involving Trump>
7
@Because Facts Matter, and perhaps any case involving the 5th amendment right to due process; and 6th amendment rights for criminal defendants. RBG recently said she stands with MeToo movement, and at least from what I've read (and I would like to see a full transcript of her speech before making final judgment), her remarks were without any qualifications. There have been plenty of women who have condemned the excesses of MeToo and its attempt to burn down the 5th amendment and 6th amendment in cases that seem politically convenient for the new "Left"; and to ignore MeToo in cases that are inconvenient (Gil Cisneros in California; Keith Ellison in Minnesota; Avital Ronell at NYU). It is quite shocking to hear a sitting Supreme Court justice state that she stands with a movement that is all about ending the 5th amendment and 6th amendment for the "right" defendants.
Even the ACLU has recently lost all credibility. They now stand in favor of carving out a so-called "hate speech" exemption from the 1st amendment; and, instead of standing up for due process, have called for Kavanaugh nomination to be withdrawn.
I can never in a million years imagine the old Left or the old ACLU jettisoning these core constitutional rights. And for those in favor of "hate speech" exemptions, just think of what a future Trump would gladly censor and prohibit under such a new "free speech" regime.
2
There is an upside to the future Justice Kavanaugh: his glowering presence on SCOTUS will be the constant, living proof that Trumpublicans' claim that they want an impartial umpire on SCOTUS who just calls balls & strikes--who strictly abides by the Constitution--is a sham.
What they want is what Kavanaugh is: a partisan--a political "justsice" who will rule with his thumb pressed hard on the scale.
Not because he assaulted a terriried 15 year old when he was a drunken, belligerent 17 year old. But because, under great pressure, Mr. Hyde popped out from under Dr. Jekyll's cloak, spouting right wing conspiracy theories and then going on to treat the Democratic senators on the panel with open contempt as they tried to question him within the arbitrary 5 minute limit imposed by Senator "Ready! Fire! Aim!" Grassley.
The problem with Justice Clarence Thomas is that he's another partisan ideologue, but his unique public silence during SCOTUS sessions--not surprising, given his D- rating by the ABA before Republicans confirmed him--doesn't provide public confirmation of his bias.
I'm confident that a Justice Kavanaugh will give his Mr. Hyde a lot of exposure during his decades on the bench, and that will help motivate Democratic voters.
4
Kavanaugh did good work on the Bill Clinton case. But that’s not why Clinton faced penalties, and whatever problems Clinton faced were certainly not Kavanaugh’s doing. Similarly, whatever problems Kavanaugh faces today - those are definitely not Bill Clinton’s fault, or doing. If Kavanaugh has alternate ideas he either needs to produce evidence or else somehow justify his extraordinary claim.
The point of the hearings is strictly to find anything that proves he’s not fit for the position, the fact that the inquiry worked is a very good sign for the inquiry process.
1
Please! Do you really think all your logical arguments will have any bearing on K. If he becomes a supreme court judge, he will not be recused from a single case no matter the conflict. Not going to happen.
7
Of course he won't recuse himself on any of the mentioned subject. If he did, why would the GOP ever want him on the Supreme Court? He is be put there to do their bidding.
11
If Judge Kavanaugh is indeed a patriot, he must withdraw his nomination. The way he has conducted himself during the recent hearings make his elevation to the Supreme Court impossible. He is adversarial, combative, insulting, disrespectful. Whether or not the allegations against him are true, his personality precludes him from serving and either Trump withdraws his nomination or he does or the Congress does their job and does not confirm him.
8
Kavanaugh's blatant display of partisanship while railing at "left-wing opposition groups" and "Clinton" supporters should disqualify him from being seated on the Supreme Court. He's demonstrated an intemperate personality, is unable to control his own emotions, and he has suborned himself forever to the GOP.
11
@Nina RTeveryine talks about how unfit he is because he spoke his mind fighting for his reputation
Lest we forget the outspokenness of Judge Ginsberg during the election
Should she recuse herself?
This is not whether he’s qualified or not or whether he assisted someone or not
Both persons involved have been harmed by a system that wants to obstruct and punish
Judge Kavanaugh left no doubt that he is incapable of fulfilling the requirements for office as a Justice. He should have been able to avoid taking the bait. I also think he still drinks heavily and wanted one at his hearing.
4
So, the ACLU makes an accusation, then says K must recuse himself because he would be biased at the entity that made the accusation.
Only attorneys could devise such circular logic.
9
@Mark91345 first, ACLU hasn't made the accusation. Second, K made himself biased when he listed in detail the people he blamed for his sexual assault hearing. Had he shown up, stayed cool, denied what he needed to deny -- instead of screaming about his love of beer and his hatred of liberals -- he would have been confirmed by now. His performance, of his own doing, was poor enough that I wouldn't hire him for ANY job. Yes, he's under pressure now. As he will be as a SC justice. That's life in the big league.
1
@Mark91345 - Yes, of course. If I punched a judge in the face, that person would have to recuse themselves from judging the case of being punched in the face.
Other judges could hear the case, and of course the judge can bring charges/sue, but they can't judge the case because they're biased. Check out the many cases that Kagan recused herself: https://constitutioncenter.org/blog/when-do-supreme-court-justices-recus...
@Mark91345
One glaring hole in your 'argument' there:
The ACLU isn't going to be sitting on the Supreme Court, waging an ideological battle.
Kavanaugh WILL do just that.
1
I read another article in the NYTIMES about Kavanaugh's lying. Unfortunately I forgot where it is. When he was questioned, under oath, for his position on the Appeals court he lied opening and somehow it went past the committee or whatever holds Appeals Court hearings.
Turns out he is very careless with his words. I can't believe he gets away with this. Something seems to be watching over him and it's not an angel.
Does anyone think of the other SCOTUS Justices who will have to work with him? It should make them sick to be publicly lowered in status from the highest court to a big question.
6
"Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
It doesn't seem to stop Ruth Bader Ginsberg.
8
@Jessica
Jessica, clearly you haven't read much of Justice Ginsburg's opinions. If you had, you'd likely not have posted such an ill informed comment.
2
He has been chosen as a political backstop, a "get out of indictment free" card. He will not and effectively cannot recuse himself. The entire purpose of his nomination is extreme right-wing activism. He isn't a judge, he is a political operative in a black robe. #fratbronation
7
The only person, truly, to benefit from the dis-union of the United States is Vladimir Putin. He must be chortling in his dacha at the sight of the America tearing itself apart over Brett Kavanaugh. Professor Tribe's piece is adds urgent fuel to the fire, and is critically important.
But we, the people, have to recognize this conflagration as the key Red Scare of our times.
6
By this argument, Ruth Bader Ginsburg must surely recuse herself from many cases before the court, due to her comments about Donald Trump.
""He is a faker," she said. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."
"I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president,"
How is that different?
10
Bret K has derailed his own nomination. There's no turning back the clock on his harsh belligerent acrimonious performance before the nation and the world.
7
If it were known for sure that Kavanaugh would do the right thing, I'd be fine with his confirmation.
But he never has and never will.
Worse, he has no idea what a dreadful person he really is.
5
@KJ. In K's mind he is Brett Kavanaugh, former altar boy and a model citizen. But what we saw at the hearing was the infamous Bart O'Kavanaugh. I'm afraid that 'Brett' would dominate in K's relationships with his family and network but 'Bart' would lord it over the rest of us in his SC role.
1
At this point, there are few words. Most situations speak for themselves.
The legitimacy or sliding illegitimacy of the S.CT at stake.
2
He can because the Republicans and Justice Cavanuagh believe the rules don’t apply to them. Their claim to a higher purpose supersedes the laws for mortal men.
3
"I don't ever have to recuse myself, I got into Yale!"
4
@ray
Yes. Thanks to his Grandfather for allowing him to be a 'Legacy' student...
1
This should be sent to every member of congress....
1
pretty sure RBG was the one actively campaigning against Trump during the 2016 campaign. What about that, Larry?
7
@bx
No, sir. You willingly twist the facts to support your own narrative.
RBG was asked an opinion about trump, she offered it.
That's not "actively campaigning" by any means.
4
How ironic. The only way I can visualize a legitimate SCOTUS with Kavanaugh as a justice is for Kavanaugh to recuse himself from 100% of the cases brought before the SCOTUS. Otherwise any decision with Kavanaugh's imprint on it is illegitimate. There is nothing impartial about Kavanaugh!!! Or trump, for that matter.
And then there is Gorsuch ....
2
You suggest that Kavanaugh’s angry comments about Democrats launching a smear campaign against him would result in him needing to recuse himself on litigation involving liberals or Democrats.
Lets test that principle. Ruth Bader Ginsburg said the following regarding men: “I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks.” Claiming that men have their feet on the necks of women reveals at least as much hostility (toward men) as anything Kavanaugh said about Democrats. Would you therefore agree that Ginsburg should recuse herself on all sex duscrimination cases?
I suspect not. Liberals such as you view hostility toward conservative men as acceptable and even “enlightened” but any hint of hostility toward liberals as unacceptably “biased”.
4
@JR that is an absolutely appropriate thing for RGB to say, men have historically oppressed women, RGB has fought hard for her place at the table. Here we are about to confirm a supreme court justice fully expected to limit women't reproductive freedom at the behest of a smug avowed misogynist president. You are doing a great imitation of a n ostrich.
10
That's not hostility, sir, it's self-defense. Significant difference.
3
After listening to Judge Kavanaugh on Thursday rant about the liberal conspiracy against him (including the ever present Clintons!!!) how could anyone believe this individual could sit and hear cases sponsored by any liberal cause. This type of conspiracy theory paranoia is what the occupant of the oval office puts out regularly. One can only conclude that the Republican Party as a whole has indeed drunk mightily from the proverbial kool aid.
6
"Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
Because the Constitution is neither conservative nor liberal. Other judges have been or are blatantly political in their views, see Soutamayor or Ginsberg or Scalia.
How can a judge like Soutamayor, who talked openly about how affirmative action helped here and those she know, make a fair judgement on anything related to it?
Because good judges make calls based on the arguments and their constitutional philosophy. They call balls and strikes, each with a slightly different strike zone.
4
Professor Tribe puts it well, and yet we didn't need a legal scholar to point this out. It was obvious as soon as Kavanaugh went into his tirade about the left, the 2016 election, and Revenge of the Clintons: If you're a liberal, this judge is prejudiced against you.
Public trust in this guy is gone. He's opening expressed bias against half the country. Not in an emotional outburst, but in a prepared speech. What more do we need to see he's not going to fairly administer justice?
Perhaps we've become so jaded to hyperbolic politics nobody noticed, but Kavanaugh is not a candidate for Congress in a right-leaning district: he's a Supreme Court nominee. Justices are humans with biases, but they're also expected to be able to evaluate cases based on their interpretation of facts and the law -- not paranoia. He should have been shown the door Thursday evening.
6
Thank you professor Tribe for so eloquently expressing the very thoughts that ran through my mind as I listened to Judge Kavanaugh's testimony. It is very disturbing to think that a supreme court justice may not be made to recuse himself from deliberating on cases where he has shown obvious bias. As another recent opinion in this paper pointed out, a politicized Supreme Court loses all its credibility. This means that the Supreme Court, the highest bastion of our democracy, will stop being seen and accepted as the impartial interpreter and enforcer of our Constitution. This destroys our most sacred institution. What next?
3
Since 2016, conflicts of interest don't matter anymore. Since Donald Trump refused to divest himself and his family from their business interests, we have effectively dispensed with all pretense that the government shouldn't just be the vehicle of profit of the select few. The only time we care is when such accusations can be weaponized against "enemies of the people."
America is a banana republic now, and the confirmation hearing showed the future of the judicial branch.
5
There should be no doubt in anybodies mind that Kavanaugh can be a functioning member of the SCOTUS. It doesn't take a rocket scientist to figure this one out. He has demonstrated in more than a dozen instances that he is not fit. The primary question is why doesn't the "best president of the century" recognize this fact and ditch him for a more suitable candidate? This is politics at its worse.Politicians playing one up man ship a the expense of the SCOTUS and the American public.
2
I assume that Professor Tribe's concerns apply with equal force to Justice Ginsberg and her expressed dislike for the current President.
6
@James
A dislike for the current president is unusual? After the UN?
3
@Howard Clark It’s unusual for a Supreme Court Justice to be so vocal in their partisan opinions.
Certainly if Judge Kavanaugh is onfirmed he would have conflicts of interest. However in any trial a potential juror is asked if he or she can be fair and impartial to each side. Judge Kavanaugh by demeanor and testimony unequivocally demostrated that he cannot be fair and impartial. If he were on a jury panel for a trial he would be “challenged for cause.” The high probability is that the opposing attorney would stipulate that Judge Kavanaugh could not be fair and impartial and he would be dismissed from the panel. If the opposing attorney did not stipulate that Judge Kavanaugh could not be fair and impossible the vast majority of Judges would grant the motion to dismiss Judge Kavanaugh for cause based on his testimony. The Senators — most of whom are attorneys — should simply dismiss Judge Kavanaugh for cause because he cannot be fair and impartial.
5
For those of us who agree that Judge Kavanaugh has displayed partisanship and rancor that will render him unable to be a fair and impartial Supreme Court Justice, what can we do to continue protesting this nomination? Should we write to the undecided senators, even if we don't live in their states? Write to our own senators, even if they are already committed to voting against this nomination? I will, of course, continue to vote in every election I can, but I feel frustrated that there's not more I can do to express my outrage and dismay at this sad situation.
3
The purpose of the Supreme Court for the next 20-30 years is to function as the enforcer of conservative values as defined by the current Republican majority and especially through eras when Democrats hold significant majorities in the other branches. These include hollowing out Roe v. Wade while claiming to uphold it, restricting women's access to birth control wherever possible, hollowing out the social safety net, ensuring corporations unfettered access and control in the federal government, destroying unions of all shapes and sizes, rolling back LGBT civil rights and gay marriage, bulwarking white, conservative Christian churches against all manner of civil lawsuits, selectively destroying States rights when the States in question are Democratic bastions upholding climate change mitigation, internet neutrality, etc. And that's just an abbreviated list. Associate Justice Kavanaugh will recuse himself precisely never as he wields the axe of tyranny against his enemies in our nation.
7
This column makes no sense to me. What higher authority exists that has the power to decide that a Supreme Court Justice must recuse himself? And if a justice should refuse to do so what consequences could he possibly suffer? Impeachment? That's only happened once before, in 1805, and the justice, Samuel Chase was acquitted.
4
For a judge, the law comes before all other considerations. The law must be applied the same under their same relevant circumstances. Who are the parties cannot master. When this works, the judiciary is independent and free. It makes governance by law possible. Judges’ legal philosophies and biases aside, placing the law above everything else is their responsibility, it’s why society has judges. When they decide according to the advantages or disadvantages of particular group with who they affiliate, they make the judicial system superfluous, cases would as easily and far more decisively be decided by popular voting.
Kavanaugh does not belong on the bench. He is an advocate not someone who places the law above all.
9
Safe to assume Mr. Tribe thinks Justice Ginsberg should recuse herself from any abortion or 2nd amendment cases, correct?
Or, rather her law clerks since it is questionable if she is fully functioning and it is her, rather than her law clerks who write her opinions. Last I checked, law clerks were not confirmed with the advice and consent of the Senate.
Oh, wait, that last fact may be a plus.
3
@Jim B.
I'd fear for the personal safety of Justices Elena Kagen, Ruth Bader Ginsburg and Sonja Sotomayor behind closed doors or in an elevator - or at a social house party with Brett Kavanaugh.
2
Judge Kavanaugh should simply withdraw himself from consideration as a SCOTUS nominee. I'm sure he is a nice fellow but not SCOTUS material.
Testimony before the Judiciary Committee hearings, reportage by this newspaper and others, public comments, and particularly the statements of the candidate himself, should convince everyone that Brett Kavanaugh is the very model of an activist judge -- ironically, exactly the kind of judge that "conservatives" pretend to disapprove of.
Understand, the dictionary definition of "conservatism" is "a disposition in politics to preserve what is established".
President Trump is no conservative. Neither is the Republican party. Their political goals, and their actions in furtherance of those goals, are to roll back consumer and environmental regulations; to gut health care and Social Security; to disregard established norms pertaining to racial, religious and sexual discrimination, and to insult and bully nations and cultures once considered our allies. Mr. Trump and his Republicans are, in fact, reactionaries dressed in conservatives' clothing, as real conservatives such as George Will have by now recognized. So their support and advocacy for an activist SCOTUS candidate who embodies their reactionary agenda should surprise no one.
Back when Supreme Court confirmations required the affirmative votes of 60 senators, candidates required more moderate records in order to get that super-majority. Now, the party in power can ram through the most partisan of candidates. Professor Tribe shows us exactly what to expect from the candidate currently up for confirmation.
1
You don't have to be a Professor of Law to know just how compromised Brett Kavanaugh is, after his recent performance.
It's all too obvious from what came out of his mouth that he's either acting according to script -- or worse, truly believes what he is saying.
In any case there's no way he would've even gotten this far had he not kissed the ring of Donald Trump, who demands personal allegiance before duty to God and Country; which ultimately mean he'd be granted the 'Get Out of Jail Free Card', if it all really boiled down to it.
And for all of Judge Kavanaugh's talk about "impartiality" -- it doesn't get more partial than that, which is reason alone why he should recuse himself from the Supreme Court nomination altogether.
8
Sadly, the title should be: "All the Ways Justice Kavanaugh Should Recuse Himself But Definitely Won't"
4
Kavanaugh destroyed his chances for a SCOTUS appointment in his opening statement and subsequent questioning last Thursday. And if, by some chance, he is appointed, the Blue Wave we’ve all been hearing about will be even larger, especially amongst women.
It was a performance both terrifying and astounding in what it revealed about Kavanaugh. It also gives cover to Red State Dems like Joe Manchin, and should knock Republicans like Collins and Murkowski off of the fences they’ve been sitting on. I don’t see how Flake could vote to confirm.
FBI investigation, or not, this man is not fit for the SCOTUS.
6
Dear Larry,
Let me remind you of just a few comments by Ruth Bader Ginsburg:
“"He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.”
By the logic of your argument, her hostile words concerning Trump would seem to raise clear doubt about her possible objectivity about issues related to Trump and blatantly expose her political bias. So can I assume that it would be your view that she should recuse herself from all litigation involving the Trump administration, particular on issues closely tied to Trump such as the travel bans? Or in your view of things do ultra-liberal judges somehow get a “free pass” on the expectation of being unbiased and your demand for recusal when their bias is relevant to the matter before the Court?
7
"Judge Brett Kavanaugh's comments before the Senate Judiciary Committee on Thursday, Laurence H. Tribe writes, "disqualify him from participating in a wide range of the cases that may come before the Supreme Court."
Really? Then Ruth Bader Ginsburg's widely publicized statement during the campaign that it would be terrible if Trump won must disqualify her from ruling on any matter relating to Trump. No, Professor Tribe?
3
@HurryHarry First of all, it SHOULD have disqualified her if she'd said those things prior to being on the SC, and I'm sure Republicans would have made sure she was disqualified for them, esp. considering Paul Ryan responded to them at the time, calling her biased and saying no SC Justice should have that kind of bias; second, yes, they probably should cause her to recuse herself in cases involving Donald Trump, JUST as Kavanaugh should have disqualified himself on Thursday. But Kavanaugh did not only criticize a CANDIDATE for president, not the president, but he attacked half the country, i.e.: liberals and Democrats. And don't presume that Prof. Tribe would have said no to that question. If you feel that Ginsburg should be made to recurse herself based on comments made about a candidate, not even a president, then you should certainly feel that Kavanaugh completely disqualified himself on Thursday, right? But, my guess is that you don't believe he did, so your comments re: Ginsburg only show your own hypocrisy and double standards. Practice what thou preach.
3
"But Kavanaugh did not only criticize a CANDIDATE for president, not the president, but he attacked half the country, i.e.: liberals and Democrats."
@Virginia - talk about distinctions without differences! When Justice Ginsburg made those vitriolic comments about Trump she also attacked half the country - Trump supporters (Republicans, conservatives, half of union households).
And do you really believe Prof. Tribe would publicly call for Ginsburg to step down or recuse herself from, say, stopping Trump's immigration policy or requiring him to divest business interests by virtue of the emoluments clause?
@HurryHarry No, she did not. Kavanaugh specifically stated "liberals" and 'Democrats", not to mention his bizarre thing about revenge for the Clintons. Ginsburg referred solely to Trump, when he was a candidate, NOT the president, and made NO mention of conservatives or Republicans. She did not say the same of any other Republican candidates for present. your argument is a bad one.
Perhaps all that heavy drinking will do Mr K in sooner rather than later, thus shorteng the amount of time he has to inflict his damage to the Supreme Court. Let’s just hope that when he does kick the bucket we will have a better senate and an ethical president.
2
That little word snack dab in the very middle of the whole write up, says it all, trumped.
1
Of course Kavanaugh is interested in justice.............for himself.
3
During the confirmation hearings of Neil Gorsuch and John Roberts, we saw nothing like this kind of questioning of temperament, honesty, and integriy--not to mention drinking and sexual misbehavior. Why so many questions about Kavanaugh? Is that not obvious??
1
Mr. Tribe lowers his standards and tarnishes his reputation by joining the DNC campaign of character assasignation. It would have helped to have someone of Mr. Tribes calibre to evaluate Brett Kavanaugh's pattern of judicial opinions. Appearantly that no longer matters.....only sordid tales of teenage lust and binge drinking and bar fights....and a weak pretzel logic attempt to apply that behavior to the adult decision making process! Mr. Tribe needs to "recuse" himself....whatever "recuse" means. I agree with the conclusion....Kavanaugh must be rejected...but unlike Mr. Tribes weak argument....I base mine on my own assessment of Brett Kavanaugh's poor application of jurisprudence.....I really dont care how bad his teenage behavior was......
1
Weren't Kavanaugh's "blatant partisanship and personal animosity toward liberals" considered his top qualities for an appointment to the SCOTUS?
2
he would end up like Clarence Thomas -- bitter and stubbornly outside the mainstream of American jurisprudence and egalitarian social norms.
2
This is silly and so riddled with blatant partisanship of its own that any of Tribe's first year law students could discredit his arguments in no time.
6
In a way this crisis is the Republican karma, or Mitch McConnell karma. McConnell blocked away Obama's SCOTUS nomination and paying the price.
A 'Kavanaugh' lesson for both young and old people who have ambitions for the highest national office: For old people, if you have any, ANY, sexual misconduct from your toddler age and up, then cancel that ambition. For young people, if you want to serve the country at the highest office, never ever commit a sexual 'crime', even if you are an infant. You CAN'T blame your youth for your misconduct. You will pay for it. Look at Kavanaugh and control your urge.
@Ryan. Yes, we should ALL practice self control and treat others with respect. Why should that be difficult?
1
@Cal Apparently it is more difficult than we think. Look at our president.
Does RBG recuse herself every time the ACLU shows up to argue?
4
Liberal McCarthyism. If we hold Judge Kavanaugh to this standard this R.Ginsberg must be held to the same double standard.
4
Tribe's comments are beyond ridiculous and simply reflect his own extreme political bias. Kavanaugh is one of the most qualified nominees ever to the court. But horror of horrors! He is a conservative. Democrats announced before his nomination that they would oppose anyone selected by Trump. When his confirmation was on the brink, they pulled the lying pathetic Christine Ford out of the hat. When he defended himself against wild accusations, his temperament was questioned. If he was more restrained, the Democrats would have said that he evidently did not feel very strongly about his innocence. Next the Dems will demand that popular culture experts analyze Kavanaugh's yearbook postings. This entire spectacle is absurd. The Times joins and promotes the circus and wonders why it is not viewed as credible anymore. It is pretty obvious.
4
@tim lewis: on what basis do you state that Dr Ford was “lying” and “pathetic”? Her testimony places three named people together who appear in Kavanaugh’s calendar of that time. What are the odds of that if her memory or testimony are false at a remove of so many years? Let’s wait for the results of the investigation.
4
@Tim Lewis. I for one had an open mind until the Thursday hearing when I witnessed K's hostile and partisan rant. You don't have to be a legal scholar to dread having such an intemperate justice on the Supreme Court.
1
"Given his...personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
"Given his...personal animosity toward liberals who've falsely maligned his good name, how could he be an effective member of the Supreme Court?"
All fixed!
3
well, it looks like the dems recognize their disgusting attempt to smear Kavanugh isn't going to work (not that they ever thought it would, they were just hoping to delay) but now, because Kavanaugh called them out for being the unfit, untruthful zealots they are -- now they are trying to use that against him. Any person who had been falsely accused of a crime and experienced a coordinated character assassination would call out the assassins for who they were.
This is garbage about Kavanaugh having to recuse himself and just another gambit by the left. Every person sitting on the SC now has been the object of virulent attacks by the opposition. So should we expect Justice Roberts to recuse himself every time a democrat appears in a case before SCOTUS. Don't think so. The only time he would have to recuse himself is if Dr. Ford came before him (perhaps for accusing someone of sexual assault when she was in college) or if Feinstein appeared (for committing perjury re leaking of the documents) or if any of the dem members appeared re charges of character assassination. Other than those instances -- he's good to go.
And also, why hasn't the Times printed the text of Rachel Mitchell's memo which clearly lays out why Ford is not credible?
3
And yet, he is likely to be confirmed.
@View from the middle I agree. Think of it like this: You know how, say, terrorists not only don't have any boundaries of decency or restraint, including the law but actually exploit democracies via the very things that ARE decent and civilized and hope people will voluntarily act in good faith in order to heap their own ill agenda on the world? Such is Trump and today's GOP.
2
His blatant partisanship and personal animosity comes from the very unproven allegations you're trying to get him to admit to in some way, such as admitting his drinking problem lead to... bad decisions. These accusations are the most blatant political hit I've seen so far, they could possibly be true, but democrats didn't seem willing to have anyone investigate until it became politically convenient for them to do so. Ruining his reputation and past life in the process.
I wouldn't be opposed to him recusing himself for sexual assault and other cases like that if he makes it to the court, but don't be surprised if he has some "personal feelings" about the very people who are trying to ruin him.
1
It is hardly a surprise that we can't trust a nominee to the Supreme Court who was nominated by a President we can't trust
4
I completely agree with Dr, Tribe on this as well as other matters, but I fear Kavanaugh as well as the GOP want Kavanaugh on the court just because of his Partisanship and I cannot picture him recusing himself from any political matter.
5
He should recuse himself from a lot of cases. He won't. The unfortunate precedent was set 18 years ago in Bush v. Gore when a blatantly partisan court decided to ignore the vote count, ignore the electoral college and stop the Florida recount with no legal basis whatsoever. The court seized power and installed a President who was preferred by the majority, even though justices had actual ties to the Republican Party. Thomas's wife was a party operative. The opinion was so poorly reasoned and written that the court mandated it couldn't be cited as precedent. People are still dying in wars that President Bush started. Once that happened, and Democrats as well as legal scholars equivocated, excused and rationalized that decision the game was over. The Supreme Court became just a bunch of political hacks, a right-wing instrument of the take-over of our society. In short, the game was lost decades ago.
6
Recusing oneself from a legal proceeding in front of the Supreme Court is purely voluntary. There may be precedence for it which establishes guidelines but we have seen all too often guidelines being ignored. I.E. Advice and Consent does not mean denying an appointee an "...up or down vote..." to use Sen. McConnell's words; except if the person is Merick Garland. Supreme Court hearings should focus on the nominees ability to reason. Unfortunately, this candidate came into the process with baggage from the Starr investigations. It's clear that when approving his nomination to the bench as a Federal Judge, the background check missed many things including his debts, drinking problems (have they ever been taken care of), and his volatile temper. The latter does not belong in a deliberative body such as the Supreme Court. Those are the issues at hand; they are not refutable, and clearly visible. The he said/she said accusations have just given the Senators time to really think whether or not having this partisan person in what is supposed to be a non-partisan capacity is what they really want.
5
“But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court.”
And what if Dr. Ford had no come forward to confront this nominee?
There were other questions and misgivings that the Republican led Judiciary Committee saw fit to ignore or disregard or whitewash. Surely Brett Kavanaugh would have been speedily confirmed despite the disregarded push backs from the Democratic side of the isle.
Her actions of courage and personal disregard have had striking consequences for this altogether too partisan and elementally flawed vetting of this questionable candidate for a lifetime seating on the Supreme Court.
2
Professor Tribe would be correct if two things applied here: 1) if Kavanaugh was being considered for a lower court position; and 2) If he were scrupulously ethical. But neither apples. In the case of a Supreme Court justice, there is no overweening regulator to force a justice to recuse her/himself. It is up to the justice's own judgment. And Kavanaugh is extremely unlikely to set aside his hyper-partisanship when cases of conflict arise. And as for his ethics, well I think we've had plenty of proof that he has none.
10
So, Mr Tribe, it's OK for liberal Justices to be partisan - see Ginsberg statements - but not conservative justices? Now you question his jurisprudence! Why not just admit that you are a raving liberal and don't want a conservative on SCOTUS, especially one that would tip the court to a 5 to 4 conservative majority.
4
Are all liberals "raving liberals" in your mind?
1
I believe, as do many others, that Judge Kavanaugh was coached from near or far by the president into spewing his despicable and deeply self-destructive comments. But love him or hate him, he is the latest exemplar of the swelling notion that those who embrace Trump are inevitably poisoned by their decision.
6
Kavanaugh demonstrated 20 years ago that he is a political and ideological hack during his time with Ken Starr.
During last Thursday's hearing, he confirmed beyond any doubt whatsoever before the world in a public forum that he is in fact a political and ideological hack.
Questions for the Federalist Society:
1) do you not vet the people on your recommendation list?
2) why have you not rescinded your recommendation of Kavanaugh?
6
Yeah, we threw scotus recusal out the window in 2012 when Kagan refused to recuse in Independent Business v Sebelius, a recusal required by law for her conflict of interest in her work with getting it committed.
Those are the old rules. Keep up.
To answer the headline, he can be impartial since he just follows the constitution, not his feelings like Sotomayor, Kagan & RBG. The document is impartial, it is when people allow their feelings to overrule the document that we have the need to recuse - unless it is something he has a vested personal interest in, he should be good to go
3
Sounds great, Larry, but Kavanaugh won’t recuse himself, especially when it comes to those thorny impeachment issues — removing Trump from the presidency. Kavanaugh’ role is to prevent that. After all, he’s Trump’s man, handpicked by Trump himself to protect his interests in that quarter — call it Trump’s “Supreme Court legal flank”. Kavanaugh’s purpose is to be Trump’s Roy Cohn, do exactly what Attorney General Sessions wouldn’t do — and still won’t, despite the browbeating; why Trump will replace him, too, with a more pliant tool at Justice soon after the November election.
It’s a matter of survival for Trump.
3
@Steve Singer Associate Justices do not have any role in impeachments.
When I watched and listened to Kavanaugh’s opening statement my jaw dropped at the partisan attacks. Could he really be bringing partisan politics into his statement? And yet there it was, clear as daylight. He sounded like a Mini-Me of Trump.
This partisan rant in and of itself should disqualify Kavanaugh. This man is not qualified nor eligible to be a Supreme Court Justice in my book. Nor does he have the temperament. Not to mention the attempted rape allegations by Dr. Ford among others.
No, this man should withdraw. The painful face of shame that his wife wore as she sat behind her raging husband during the hearing says it all. He has no credibility with his lies and pretend purity.
Kavanaugh and Senator Graham were two raging brats who disrespect the positions they hold. They both Ned to go.
6
That would also disqualify RBG because she made very strong anti-Trump comments before his election.
6
Kavanaugh perjured himself in front of the Senate Subcommittee and on national television.
He ain’t so smart.
10
Did anyone else have the impression that Judge Kavanaugh was drunk during his Thursday testimony? Why else weep when discussing a calendar? He certainly was very disinhibited.
10
@Meredith McCarran Two men in my family belong to AA. Their opinion is that K demonstrated 'dry drunk' behavior on Thursday.
Oh my god. Everything you said here is applicable to the four liberals in the Supreme Court. We are not sitting here and taking aim at them. You all grow up and accept the reality.
The best place to make law is congress. But you don't want to make laws in Congress. Instead you want Supreme Court to make laws. It is always going to be messy whether it conservative leaning or liberal leaning laws. The best thing to do is not let Courts make laws.
5
There are no greater ironies that Kavanaugh who wanted to put the most salacious and neo -pornographic language in the Starr Report regarding the actions of President Clinton blubbers like a baby about an how honest investigation of his background will ruin him and his reputation. His wing man Lindsey Graham also demonstrates monumental hypocrisy when he stated that he voted to impeach Clinton not because any laws were violated but because the moral standing of the Presidential office had been besmirched. He now asserts that he will vote for Kavanaugh even if there is a substantial evidence that this attempted rape did occur as well as Kavanaugh's other crimes and misdemeanors.
11
Moreover he is obviously devoid of any shame at his arrogant and aggressive performance. But then he has Power watching his back. Or maybe not. A big slip in the polls for the GOP might end this nomination.
3
1st presumption is that Kavenaugh will sit on Supreme Court. Kavenaugh will not be confirmed; he is not qualified. Partisan; angry and unstable. NO Ray Sipe
interesting but unfortunately not going to happen. he would not be required as in the lower courts and the opportunity to get revenge while in the supreme court would be much too tempting.
if the senate committee mtg was a version of a "job interview" then he should not be offered the job. i am a retired senior human resources executive and any candidate for an executive position whose temperament, demeanor, emotions - were anywhere similar to his - there is zero chance the person would be hired....let alone the three allegations against him.
he would NEVER be hired by any corporation worth its salt. similar to trump - who would have been fired from any respectable company based on his lies and as importantly, his comments that expose him as a racist and misogynist.
his comments to one, or was it two, female reports at his news conference re "you never think" would have gotten him fired on the spot.
very sad for our country as its reputation, based on the most recent poll shows perhaps the lowest regard for america around the world.
https://www.google.com/search?q=latest+poll+re+america%27s+reputation&am...
1
kavanaugh was put on the federal bench, obviously, because he was/is a right wing political operative, eager to please his masters.
his lack of impartiality and objectivity has been manifest during his time on the d.c. circuit bench: republicans, including karl rove and george bush, have got what they expected.
essentially, kavanaugh is the epitome of republican "litmus-testing", designed to politicize the judiciary. democrats--clinton and obama--have not responded in kind.
despite misleading labels of "liberal" given by negligent journalists to justices like breyer and ginsburg (who plainly were comparatively moderate, even somewhat conservative in breyer's case), clinton and obama pursued a goal of nominating justices who should have been easily confirmed because they were not liberal or progressive activists.
that will have to change, if the courts will be perceived as remotely balanced: dems will have to begin "litmus-testing" and placing progressives on the bench--and even packing the court--until they can work out a truce with republicans.
anyone who might think that would be "going too far," and "distasteful", should take another look and listen to our current crew of republican "leaders".
Clarence Thomas has issued ruling to the detriment of women and liberal for decades. There is no reason to assume Mr. Kavanaugh would recuse himself from cases that involve women's right or executive power. In fact, the Republicans are drooling over the prospect that he will have a voice in these matter for 30 years or more. The Court has been politicized since 2000, when the gave Bush the Presidency. It's only becoming more evident and more strident. Kavaugh you can be sure, as evidenced by his tirade, will use his position on the bench to get revenge - something we will all pay for.
2
There must be other judicial candidates that Mr. Trump can nominate who would allow the President to be above the law.
3
"Lack of candor" during conversations within the FBI was enough reason for Andrew McCabe to be fired as the FBI's acting director. Remember that?
Brett Kavanaugh's own Yale classmates and drinking companions, many of them men, said Mr. Kavanaugh "lied" "misrepresented" or "lacked candor," while testifying under oath about his "heavy drinking" in college. Further, Mr. Kavanaugh's classmates said he "misrepresented" or "downplayed" his "aggressive" and "belligerent" drunken behavior, also while testifying under oath during the Senate Judiciary hearing.
If "lack of candor" was reason enough to fire Mr. McCabe from the FBI just days before his 20-year retirement, surely it is enough to disqualify Mr. Kavanaugh from the Supreme Court.
There are no women accusers of alleged sexual assault, or Democratic conspiracies, at play here. Mr. Kavanaugh has only himself to blame for "lacking candor" while testifying under oath and getting called out on it by his male college drinking buddies.
3
I don't think this guy should be elevated to the court. Watching his conduct last week during the hearing and the lies he's apparently told about his past drinking, etc., seem to suggest he should not be on the high court.
He demonstrated nothing but hatred and contempt for democrats.
4
@Yvette. I noticed that he was especially rude and disrespectful to the female Senators who questioned him, even though they were polite and civil in tone. Like many Republicans he may be innately - even subconsciously - hostile to women who aspire to professional careers.
1
I say this as a liberal who opposes Kavanaugh's confirmation: this argument is ludicrous. A judge should now be required to recuse himself from any case that implicates a legal issue on which he has a previously stated opinion? That is an impossible and silly standard. Justice Elena Kagan had well documented, published views about the power of the excutive when she was confirmed. They were not thought to be a problem, the executive at that time being Obama. Justice Ginsburg has made unusualy and extremely partisan remarks about her dislike for President Trump. Should she also recuse herself from any case involving the Mueller investigation? Presumably so, although she is conspicuously absent here. The facts of the Massey Coal case are misleadingly summarized here as presenting an issue of a justice being "politically beholden" to a party in litigation. That case involved millions of dollars of campaign contributions to an elected judge. Hardly the same as a judge who just says he doesn't like Democrats.
To be clear, I think Kavanaugh disqualified himself by virtue of the temperment he displayed on Thursday, but I don't think claiming a conflict of interest is a helpful move.
1
This is exactly the right way to look at this. It will be very hard for the FBI to prove anything this week. The Republicans are making an intelligent bet. Distract everyone with focus on an impossible to prove allegation. Nothing proven, they can say “see just a big witch hunt by the Democrats”. Then they successfully get their very biased judge.
1
Scalia showed us there is no need for a supreme court justice to recuse himself ever for any reason. It's up to the justice himself or herself to decide, and I'm betting BK would not recuse himself for any reason.
1
We need senators Collins, Heitkamp, Manchin, Murkowski and especially Flake to show that they can exhibit profiles in courage. Jeff Flake has shown from his actions last Friday that he knows in his heart and gut that he agrees with Professor Tribe's assessment of Brett Kavanaugh. Judge Kavanaugh put all his cards on the table during his Thursday afternoon tirade against Democrats, liberal organizations and the Clintons. Kavanaugh will not be a swing vote on the Supreme Court and his view of the world will be embedded into future life altering decisions. During the confirmation hearings Brett Kavanaugh came across to me (I'm just an ordinary citizen) as an entitled spoiled rich boy that knows how to throw his weight around. His crying and abusive behavior was an embarrassment. Brett Kavanaugh doesn't have the gravitas to be a Supreme Court Justice.
5
Appointing Brett Kavanaugh to the supreme court for a life time job, despite his extreme partisan political views and character flaws would be a very foolish and undemocratic thing. What will the world think? What will posterity think? What judgement will history pass?
Not a problem for Mr. Trump and the Republican senators.
1
With all this attention placed on him, if he does have a drinking and temperament problem, the pressures are surely going to get to him by the end of the week. Will be curious to see what his "demeanor" is by then.
3
The question needs to be asked why the President and the Republicans want to drag the country any further into this morass. There is an inexhaustible supply of right wing judges that could be nominated in place of Kavanaugh; with all of the issues clouding Kavanaugh's qualifications for the job and that will hang over his tenure should he be confirmed, it makes no sense for him and his advocates to proceed any further. Clearly, it is the Republicans who wish to embroil us in this ongoing controversy that could be so easily brought to an end.
6
I agree with Prof. Tribe, but I must point out that Justice Ginsburg made politically intemperate remarks about President Trump for which she apologized. https://www.nytimes.com/2016/07/15/us/politics/ruth-bader-ginsburg-donal.... Such remarks, like Judge Kavanaugh's reveal a bias that in most cases would or should result in recusal of the judge from deciding a case involving the person or group about whom the extra-judicial opinions have been expressed.
What bothers me even more, however, is that what all judges have these opinions. The judicial canons on recusal just require judges to not express their biases. Should we have more trust in a judge who has biases but doesn't express them, or who has them and expresses them. It is probably too much to ask for judges to actually admit their biases AND recuse themselves when they have them. Scalia didn't recuse himself, and Justice Ginsburg has not recused herself in cases where Trump is the actual party.
This is not a defense of Kavanaugh because others have done the same or worse. It is really a plea for judges to be more candid about their biases and more be more forthright in recusing themselves.
3
Sadly, and as has become painfully clear in our current political age, being shown to be unfit to hold high public office is no longer an impediment to actually doing so.
4
Just as a point of information, Supreme Court justices recused themselves nearly 90 times at the merits stage between October 2005 and February 2017. Justice Elena Kagan has the most recusals at nearly 40 during this time period. There are numerous additional recusals at the certiorari stage. None of this, of course, means that Kavanaugh, were he appointed to the court, would choose to recuse himself from a given case since, as this article points out, the rules on recusal which bind lower federal courts don't necessarily apply to Supreme Court justices.
2
Oh, Professor! My constitutional law professor used your casebook and I learned so much that is at great risk today. Please keep writing and speaking legal truth and analysis at a time when nominees have television commercials.
8
The thing about his speech in his rebuttal to Ford's testimony is that it cemented my feeling that this man does not belong on the Supreme Court. As others have pointed out, I don't know how any person or body that is not aligned with conservative views (or Mr. Kavanaugh's own) can hope for an impartial hearing or judgment on the facts. He, like Trump, not only alienates anyone whose politics or social views do not align with his. Our democracy is supposed to protect the rights of the minorities, but I'm afraid that with a few more Supreme Court appointments this country will reflect and be ruled, in a sense, by the conservatives. Why would that be a bad thing, you ask? Well, it's the kind of thing that leads to civil war.
2
"Given his blatant partisanship and personal anger toward liberals, how could he be an effective member of the Court?"
This is the subtitle. This same subtitle could easily apply toward the mainstream media. Given its blatant partisanship and personal anger toward Trump, how can it be an effective member of the Fourth Estate?
It appears the new strategy is, as the Democrats and the new "Left" have already been engaged in, an effort to destroy the legitimacy of any institution they are not able to win via the US Constitution (i.e., the presidency, via the Electoral College, as has always been the rule); and now the Supreme Court.
I voted for the Democrats from age 18 until age 38, beginning with Bill Clinton in 1992, through to and including President Obama's reelection in 2012. I was never so happy for this country as upon Obama's election in 2008. But I noted a strange and disturbing turn around 2013 and each year thereafter, at the national level (as well as outrageous hypocrisy from the local Democratic Party in Vermont).
May I suggest instead of trying to burn down institutions that don't go the Democrats way, they try and win some elections? And maybe the platform and policies they support need to change. There has been a descent into illiberal fascism and it may win some voters but it drives others away. There has been a descent into virulent identity politics, worthy of Mao & the Cultural Revolution; not the party of Bobby Kennedy & Barbara Jordan.
5
As I watched Kavanaugh's outbursts on Thursday I thought to myself that his wife must have been really, really demonstrably mad at him for him to complain so bitterly about how the revelations about his younger days had affected his familly. That is because it was so clearly just about him and his finally being outed as someone with faults. The guy reminds me of a sociopath I once had the displeasure to work with. He would not entertain the idea of recusal for one minute.
7
Yes, he would seem to be unfit to be a Supreme Court Justice in the most important of ways: morally, ethically and temperamentally.
5
A judge Kavanaugh in the SCOTUS will not be respected by a wide section of US people, thus his opinions and his voting will always be seen as prejudiced and biased. SCOTUS has a lot to loose if Kavanaugh is confirmed. US has a lot to loose if he is confirmed. And Trump has a lot to loose if he is confirmed, so I don't know why he persists in this nomination.
6
Senator Flake did honorably by momentarily and symbolically listening to women’s views, which implies he had not done so before. But these issues are not going away just because white men want them to go away. We need to deal with them seriously and realistically and not in a whitewashing.
Before we deal with them, however, Senator Flake has another issue to resolve, for like it or not, there are more citizens not female. Should Judge Kavanaugh join the Supreme Court, he will one way or another deal with cases involving men and women. He has done more than suggest he will act with bias. Senator Flake and all of us heard him threaten the populace, men and women. If allowed, white men can be next. Every Senator of good faith must consider that threat in voting on the floor of the Senate. The FBI investigation does not resolve Senator Flake’s duty or the duty of any other Senator. All Americans, women, men and children, are entitled to a bona fide justice on that august bench. Who among us, even Republicans, can trust that a buzz saw loosed on the Court today will not harm their own future interests because of ill-considered, temporary benefit today? If the nation is to go onward, every Senator, including and not limited to Senator Flake or to a week’s FBI investigation, have ongoing duty to protect men and women, even non-voting children, of all stripes from threats.
1
The best indicator of Judge Kavanaugh’s temperament to serve on the Supreme Court is his record as a judge. Professor Tribe’s hypothetical disqualifying cases would argue that Judge Kavanaugh has demonstrated “injudicious temperament” in his judicial career but Tribe offers no specific cases where his recusal was required yet ignored, nor where it has caused his rulings on appeal to be overturned because he had a conflict of interest.
As an attorney, Kavanaugh well served his clients. What else ought he to have done?
There is no evidence, however, that Judge Kavanaugh has ever ignored even the appearance of personal conflict of interest while on the federal bench. Any suggestion that he would have to recuse himself before he is seated on the Court is indeed asking us to prejudge hypothetical cases that no one has yet heard.
5
To the degree that Kavanaugh shows anti-liberal bias, he is that much more attractive to the GOP. In our hyperpartisan climate, the party that nominated and now defends Kavanaugh doesn’t want justice. They want license. This is a genuine shame, because I think the average conservative American still wants justice, even if their idea of what justice looks like differs from that of the average liberal American.
4
Kavanuagh, Smith, Jones, It doesn't matter who gets appointed to the supreme court, the court is politicized.
Citizens United v. Federal Election Commission, only a banana republic would allow that.
7
How can we keep our country moral, decent and honest? How can we protect our little children? How can we stop promoting indecent and immoral lifestyles to the rest of the world? Simply put God back into the equation.
Whether republican or democrat, male or female, Christian or atheists, if what we think, say, or do is decent, moral and right...then it comes from God. If what we think, say, or do is indecent, immoral and wrong then it does not come from God. You can only lie to yourself and others, but not to God. This may be why separation of church and state exists. Blessed be those that believe in His name: who are born, not of blood, nor of the will of the flesh, nor of the will of man, but of God.
@manoflamancha being that we have Christian evangelicals partially to blame for trump becoming president, I'm feeling the need more than ever for the absence of religion in politics.
@manoflamancha. You and others who hold your beliefs and would potentially foist them on others, are truly frightening. I for one would like to see more humanism and less theocracy.
1
It is inconceivable that Judge Kavanaugh could discharge his duties on the Supreme Court now without bias or favour. The whole matter now requires a complete revamp of Supreme & Federal Court picks, to be vested outside politics and with recommendations from the top Law Schools. Sitting Presidents should be denied any role. Any hearings should not be in public, but in private, with full FBI checks, to protect key protagonists from trolls and those in society who are mentally unstable.
The president of the day should be informed who has been appointed but not interfere. What should be on trial is the abysmal process of appointment, which allows the least qualified to appoint the most qualified. The process is a circus and America has once again proved itself a madhouse, incapable of devising a watertight procedure. Law has no place in politics. Sort out the circus senators! It’s time to govern.
2
Professor Tribe,
Thanks for your troubling insight. Here's another point that needs to be made: If Kavanaugh is confirmed, it will be interesting to see whether Kavanaugh's extreme views on the power of a president survive if and when a Democrat is sworn as the next president. The conservatives on the present court and Scalia seem to have had no trouble in tossing out their originalist dogma when it conflicts with the result they want.
11
George: States' Rights is a convenient conservative meme, but it is meaningless. First, we tried States Rights with a weak federal government in the original Articles of Confederation after the Revolutionary War. Within 10 years, the states were practically at war with each other and the national economy was on the verge of collapse. The Founding Fathers had to sneak quietly back to Philadelphia in 1787 & replace the Articles of Confederation with the Constitution, which made state laws subservient to a strong federal government.
Second, the Confederacy tried States' Rights, with each state acting as an independent entity and a weak & powerless central government under Jefferson Davis. Most Civil War scholars attribute the Confederate States' inability to coordinate under Davis as one of the reasons for their defeat.
Third, conservatives only support States' Rights as a means to get around a federal law they don't like. When a state passes a law they don't like, they are the first ones demanding that a federal law be passed to overturn state laws like the DOMA act to stop states from legalizing gay marriage, or the federal drug laws to try to stop states from legalizing marijuana, or the newest attempt to block California from enacting a state law for Net Neutrality. States' Rights is a sham.
8
Judge Kavanaugh's partisan inclinations have been painfully clear from the beginning. He holds to one extreme when the occupant of the White House is a Democrat (liberal), and another when that occupant is a Republican (conservative). The extremes in those positions (relentlessly hounding a sitting president, for eight years, using any and all possible charges and avenues, versus approving torture, spying on Democrats, and defending absolute, imperial power and protection for a sitting Republican president) is absolutely mind-boggling.
I predict that if Kavanaugh is seated, he will eventually be impeached. The grounds for impeachment are well-laid and already inarguable. They are the same reasons that he should not even be seated. If he is seated, it will be by an act of unconscionable political will by a minority party that is hanging onto power by a thread (using political gamesmanship, such as gerrymandering, voter suppression and changing the Senate rules, not to mention computer crimes and accepting foreign interference). It will only take a maturation of the electorate, which is inevitable, to the point where we outgrow the current "angry-white-entitled-suburbians versus everyone else" electorate.
That may take 25 years, but I predict that Kavanaugh will not serve a life term, and when he is gone, the history books will dedicate entire chapters to the "Entitled Victims Generation" (once fondly known as The Baby Boomers) that tried to destroy their own democracy.
6
And who enforces such recusal “requirements”? No one
At most, the only practicable remedy would be for the other branches to simply ignore anySuoreme Court opinion delivered based on a failure to reduce where “required”. That remedy quickly opens questions of whether Marbury v Madison was correctly decided and calls into question very seriously what the proper scope of judicial authority is. Another term for that discussion is “constitutional crisis.”
3
I'm pretty sure that Alito, Thomas, and Gorsuch really dislike Planned Parenthood, the ACLU, etc. They were just smart enough not to say so under oath.
7
I would not expect someone as profoundly dishonest and arrogant as Judge Kavanaugh to have the honor to recuse himself when necessary. And let's remember why Trump picked him: Because as soon as Kavanaugh was finished doing to Bill Clinton the very things he is now whining and crying and raging about being done to himself, he did an about-face and decided that presidents cannot be indicted. As usual, Trump made a decision for himself, not for the country. And now we know for sure that kavanaugh will gleefully and out of revenge (ironically enough) will corrupt the Court and our country to protect a criminal president from accountability.
10
Ginsberg is an outspoken critic of President Trump yet she didn't recuse herself in any case directly involving Trump policies (such as the travel ban). So why should Kavanaugh.
Additionally, the NY Times has argued for two years that it doesn't matter that the Mueller team is made up entirely of Democrat partisans , that because they are professionals they are able to put their politics aside and be objective in their investigation.
If that is true, why wouldn't the same argument hold true for Kavanaugh, who exhibited the very human emotion of righteous indignation in defending himself against the unfair and egregious false accusations of rape leveled against him by Democrats and only Democrats.
7
@Matt Wood NYC. Apparently the FACT that Mueller, Rosenstein, Wray, et al are life long rock ribbed REPUBLICANS has been lost on you. Ditto that the investigatorial team is a mix of alll parties. None of this seems to penetrate the fog that Drumpf cronies and his screaming points reiterate on the regular. His reaching into the FBI and other Agencies to make "enemy lists" is not lost on the majority of clear thinkers. He craves chaos and attention, and he sure has you all trained so to get it.
2
The problem is that ALL the left leaning judges on the Supreme Court are highly partisan, and clearly do not believe in the Constitution at all ... especially the 10th Amendment.
So they should recuse themselves on every such issue involving
Constitutional limits on Federal powers ... and this, of course,
includes abortion.
So the whole piece is the usual left wing silliness.
The cure is for the Left to simply introduce Constitutional Amendments to do what they want. As I have said before,
few words are needed: The "The First, Second, and Tenth Amendments are hearby repealed" will do the job.
7
When India's supreme court faced a serious issue of credibility, four of the seniormost judges sat out in protest and held a press conference. No one knows what impact this had but for the first time since independence we saw such a protest. It certainly sounded a note of caution to the public. In the US, Kavanaugh has given enough red signals. But then you have a President who is eminently unsuited for the enormous task. Fate of democracies.
3
This op-ed suggests that Kavanaugh and Republicans still have honor and respect for our democracy and Constitution. However, between Mitch McConnell's chutzpah to stand up and accuse Democrats of delaying a vote on a SC nominee, by a week, and chastising them for it after his grotesque abuse of his power over the Merrick Garland nomination, and the Republican party's complete tolerance of a president who has told over 5,000 lies since becoming president, among other things, I think it is fair to say that the Republican Party, Trump, and their base, are so devoid of any good faith, honesty, or honor that they cannot, on their own, do the right thing any longer and are completely enthrall to abusing power to crush their opponents. This is such a sad time for our country.
8
The point is simple: The Republicans WANT him on the court, specifically because of his bias against "liberals".
Sadly, they repeatedly Choose Party Over Country, even as they attempt to wrap themselves up in the American Flag.....
7
@Paul P.
Elections have consequences. Sotomayor and Ginsberg were liberal, appointed by a liberal president. They were qualified and received bipartisan support.
Now, the liberal “resistance” is clear - just say no, obstruct, delay, and hope to win the midterms.
I hated the Rs when they obstructed, delayed, and said no to anything Obama proposed. Now i hate the Ds for the same despicable behavior. Time for a third party.
2
@Mike
Sotomayor and Ginsberg were appointed by President Obama.
They are also not partisan; any basic reading of their rulings before (OR AFTER) ascending to the Supreme Court shows that.
We can not say the same for the likes of Scalia, or his would-be puppet, Kavanaugh.
The Quixotic moan often voiced for a "Third Party" is exactly why trump is in office: Fools throwing away a vote for the better of two candidates, while wishing upon a star for the "Perfect" candidate.
Live in the real world.
Votes Matter.
The only question then would be: "would not recusing yourself be considered bad behavior".
'Til it does, it is indeed pointless. The rules only exist if there is someone to enforce them.
And in this case, the american population has been staying home for two years.
1
May the Supreme Court refuse to seat a Senate confirmed judge?
2
His testimony proves he hasn't grown past his impetuous privileged youth.
8
More and more the SCOTUS is becoming the Supreme Spin-Court of the United States.
5
What we are witnessing is a perfect argument for why seats on the SCOTUS should be limited-term positions, and not lifetime appointments, with staggered expiration dates so that every president gets to appoint a justice. At least that way, the appointments would more accurately reflect the views of the electorate, and we would not face the prospect of being saddled with "damaged goods" like Kavanaugh for a lifetime.
9
I wholeheartedly agree. Excellent idea to stagger the appointments so the deck doesn't get politically stacked to the Left or the Right. I would prefer a Supreme Court of "jurists centrist" who can judge the facts apolitically, regardless of personal beliefs, and uphold The Constitution, as is their sworn duty. I fear this wishful thinking may end up going exactly where all of Senator John McCain's noble attempts to get congressional term limits passed ended up: nowhere. We can dream, though. We can dream.
In 2006, the American Bar Association questioned Mr. Kavanaugh's temperament after President Bush nominated him to serve on the 9th District Circuit Court--to no avail. The Republicans ignored the ABA. The fact that such bias by Republicans is continuing 12 years later is scary and wildly hypocritical considering how the Rs treated President Obama's Supreme Court nominee Merrick Garland. FYI, I am a registered Republican, but I'll be voting for Democrats in the mid-term elections in the hope that the Democrats will recapture the House of Representatives and change for the better what's been going on.
11
@Dave --There is no such entity as "the 9th District Circuit Court." The ABA now gives Judge Kavanaugh their highest rating: well-qualified. So it would appear that his 12 years of experience on the bench was well spent.
2
It's doubtful a Justice Kavanaugh would recuse himself from any case. Solidifying power at the expense of democracy and fairness is a feature, not a bug, of Republican politics. (See, for example, their suppression of voter rights for minorities and other left-leaning groups.)
Kavanaugh will be confirmed unless the FBI discovers something very dark in his past, which is unlikely.
3
He's absolutely and dangerously partisan, and this is now clearly on the record; he violates every established norm for a neutral judiciary. If he is confirmed, he will make the Supreme Court a mere tool of the Republican party. He must not be confirmed to a lifetime appointment on the court, especially given that the Republican Senate failed to act on the nomination of a truly gifted and impartial jurist in Merrick Garland, in defiance of their duty to do so.
10
Oh, kind of like RBG and Sotomayor are vehicles for the left?
2
Here's a few Supreme Court justices who have expressed political views while on the bench or who were active in politics before appointment: Ruth Bader Ginsburg, Earl Warren, William O. Douglas, Felix Frankfurter, Hugo Black, Robert Jackson, William Howard Taft, Charles Evans Hughes, Salmon P. Chase, William Brennan, Thurgood Marshall, Abe Fortas, Arthur Goldberg, Clarence Thomas, Antonin Scalia. I am sure there are many I left out. I don't recall many disqualifications by these justices nor I am sure, would Professor Tribe have advocated for it (except for the Republicans)
8
There may be one mitigating circumstance. Chief Justice Robert's legacy hangs on the credibility of the Supreme Court. Judge Kavanaugh can single-handedly destroy that credibility should he not recuse himself in the noted cases. What would the Chief Justice do? One thing he could do is to sit Brett down and say, "Brett, recuse yourself or I will negate your vote". Would he do that? It all depends on whether he values his legacy, the Constitution and this country more than he values the conservative agenda. The Senate Republicans have already weighed in.... on the side of party over country. Will Roberts do the same? I have to think that Roberts is hoping Kavanaugh is not seated.
7
@Bill young Democrats are fighting his nomination for the good of the country. They are doing so to advance their own political agenda. They hope to stall any new Supreme Court Justice until they control the senate. I understand this but it’s a political tactic, not a moral stand.
3
@John. When one persons so-called "morals" are used against an entire country, such as Kavanaugh has made.clear he WILL do, then it MUST be a moral stand on the opposition side. To partisanly state he thinks he has a "hit" on him from a family no longer holding ANY political power, when he holds one set of "beliefs" for a Democratic president vs a fake Republican president under his own legal cloud--- this is a poisoned man, unfit to serve. Also see how Agent Orange's views "changed" re Roe, in fact it has recently been disclosed that he demanded his "record" of SUPPORT for Roe be EXPUNGED--- like everything else about this hideous creature this is a sham, a woll-o-the-wisp, as the base demands. Without his slqvering base, the money he grabs from the Russians and the Russian backed NRA, Koch money, he is--- nothing, just a posturing clown, bent on maximum destruction, because he has been allowed to destroy.
@John That is utter nonsense, as proven by the Gorsuch appointment. It's also sickeningly hypocritical, again considering what McConnell did with the Garland nomination. And to suggest that, were a Democratic nominee accused of such a thing that the party which spent seven years investigating Bill Clinton wouldn't allow an investigation because it would delay the appointment is laughable.
So the Professor conveniently overlooks Justice Ginsberg's profound comments on the current administration or many political issues. Does anyone believe that Ruth should recuse herself from rulings related to this administration or on social issues? Of course not so why should you expect something different from Kavanaugh.
7
@Chris She also had a contentious confirmation hearing.
1
Oh come now! Let's be real:
" Of course not so why should you expect something different from Kavanaugh."
Answer: "because 'you' are a partisan Democrat"
1
When FDR’s New Deal was struggling to get victories at the Supreme Court, FDR attempted to stack the court with justices that would vote to uphold his signature programs. I wonder what he would have thought of the idea of them recusing themselves had his plan been approved? They would have been selected by the President for the express intent of rubber stamping his agenda.
Current Justice Ginsburg was less than forthcoming in her confirmation hearing, refusing to answer a number of questions. This tactic has come to be known as the Ginsburg Rule.
Politics has always been intertwined with the Justice system. Thinking that anyone is actually impartial is nonsensical.
3
If Kavanaugh were truly the man he claims to be, a man with highest regard for our judicial system, he would reflect on his performance in the last Senate hearing. He would think clearly of his willful fabrications about his school days and the impact of these lies upon how at the least 50% of American will now view him as an impartial judge capable of rational thought without partisan flavor.
If Kavanaugh were the man he wishes us to believe him to be, he'd step aside and also resign his present position, if for no other reason than respect for the judicial system.
Sadly, Kavanaugh is NOT such a man, and even sadder is the reality that he is not qualified to sit in judgement of anybody.
7
Tribe is hardly in a position to criticize anyone for blatant partisanship and animosity. It was he who led the way in demonizing Bork.
7
kwyb, Tribe sued the Obama administration over the Clean Power Rule which seeks to limit carbon emissions. He calls them as he sees them.
2
@kwb Robert Bork was a ridiculous nominee.
1
But it will be the failure of the ideologues such as Lindsay Graham, McConnell and, of course, their fearless and feckless leader to heed Professor Tribe's opinion, that will install this petulant lackey in the highest court in the land.
Making America "great", by ensuring its banana-republic status for a generation.
As Sarah Palin memorably put it, " We don't need a College Professor, we need a Commander-in-Chief" - she probably meant a "Commandeerer-in-Chief". We now have one.
Hail the Republic.
2
This has all become too messy. Kavanaugh needs to withdraw his nomination to the Supreme Court! Professor Tribe's analysis is the clincher.
7
That’s exactly how it works ! Throw a bunch of unsubstantiated accusations - make sure not to ever say “alleged”, than everything becomes a mess, so you can ask the nominee to withdraw to clean the mess that you have deliberately created !
2
The simple answer is that Judge Kavanaugh cannot be an impartial and effective member of the Supreme Court. But then again, that is not why Trump and our Republican politicians want him there. They do not want an effective and impartial Supreme Court. They want a Supreme Court that will do the bidding of corporations and religious zealots. They want a Supreme Court that will protect their shenanigans so they can retain power (gerrymandering, for example). It is that simple and it is that sinister. It is a hard reality to swallow, but that is exactly what is going on here.
8
@SkL
And which specific decision in his more than ten distinguished years on the second highest court has convinced you of that, or are you relying solely on DNC talking points for your "knowledge" of the issue you raise?
1
Confirmation of Kavanaugh is the nail in the coffin of even the illusion of a democratic US government: a president who lost the popular vote and may very well be the product of Russian hacking; a Congress whose members are elected through gerrymandering and a Supreme Court Justice who has no qualms whatsoever about perjuring himself. The tragedy has become farce.
11
@Anony -- Wow! Where to start? The popular vote doesn't matter. This isn't American Idol. IF, and that's a BIG IF, Judge Kavanugh did actually perjure himself, then why hasn't the senate brought that up? Uh . . . it's because they don't agree.
Let's face reality. Kavanaugh would no more recuse himself for conflicts of interest than Clarence Thomas did in the "Citizens United" decision for which we are all paying the price.
7
@Al M
Well, not "all," Al M. Some people noticed that unions were also treated as persons.
1
"Kavanaugh’s attacks on groups Democrats, liberals, outside left-wing opposition groups, those angry about 2016 election or seeking revenge on behalf of the Clintons render it inconceivable that he could administer justice..."
Is your point that Democrats, liberals, outside left-wing opposition groups and those angry about President Trump and/or the 2016 election are not covertly opposing the appointment of a conservative judge?
You do know that if appointed conservatives will have a hold on the court potentially for decades, right?
Did you also know that Judge Kavanaugh worked with Ken Starr, the special council largely responsible for Bill Clinton's impeachment? You knew that, right? You know the Clintons and their supporters aren't quite over that and her miserable failure in 2016, right?
By your logic groups that oppose a judge today, even if by using character assassination and nefarious means such as obstruction and withholding evidence, to keep him out, and in the future that judge must recuse himself from any case that may have even the most remote connection to anyone or anything associated that group?
How would this standard not apply to any judge?
Better yet, how about a law maker? We're in the midst of an election season. Watch the vitriolic ads on TV then explain how a law maker would have to recuse from legislation that affects political opponents that smear the candidate in an election.
Judicial appointments, like elections, have consequences.
3
@Johannes de Silentio
Of course they have consequences. Did anyone not know that? And so do underhanded methods to prevent them from being seated have consequences.
2
Quite right. Judge Kavanaugh could never claim to be an impartial judge after his opening remarks before the Judiciary Committee of the Senate. Those remarks were premeditated because they were written the day before according to the Judge himself. Impartial? Calm? Come on!
4
Ask the same question of Clarence Thomas, another utterly partisan character who got his seat on the court because of "service" to the Republicans, NOT any judicial merit or temperament.
2
I am fine with Kavanaugh being confirmed, as long as he recuses himself from participating in any case that impacts women.
:)
4
Kavanaugh was a loyal legal GOP warrior for decades. He was selected exactly for his known beliefs and partisanship. He will rule exactly as the conservatives hope. The fact that these are the legal reasons he should not be elevated to the court is irrelevant.
3
I sure wish that people would stop publishing his photo. His anger and arrogance just radiates out from it.
You can be sure that Kavanaugh would never, ever recuse himself from anything. Unless Roberts could force him to, he definitely has displayed that he feels that he is the smartest person in the room and completely confident that HE knows right from wrong while the rest of the world apparently doesn't. His appointment to the Court would be the final nail in its legitimacy.
5
The republicans will push through kavanaugh with all his faults because they know that, regardless, they are going to get blown away in the coming blue wave this November. That can be remedied in two years.
Kavanaugh, however, will be on the Supreme Court for life meaning 30-40 years, pushing their ultra-conservative agenda.
It's simple math.
2
@Howard
Isn't that exactly why the Left has sought delay after delay--because they hope to win in November? The only wave that you will see in blue after this horrendous display will be
" bye, bye" as they leave the Senate in droves-- once again.
2
Do not count on Justice Partisan Kavanaugh recusing himself. He is an extreme partisan. He rationalizes his verdicts to fit his radical creepy conservative beliefs which reserve mercy, forgiveness and redemption for other conservatives, never for political foes.
5
So then RGB must recuse herself from any case in which the President is involved? RBG stated "He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."
Mr. Tribe, I expect to read your opinion soon about RBG’s recusal from, essentially, the entire docket since the President is involved in some way in virtually every case before the Court.
5
Wasn't Ginsburg a major ACLU official? Doesn't this mean she has to recuse herself from any case related to civil liberties?
Shouldn't Kagan recuse herself from any case related to any policy connected to Obama?
6
@Rob @Rob Kagen has: http://www.abajournal.com/news/article/alito_and_kagan_recused_in_dozens...
You can use the google to find other articles.
Kavanaugh lost my respect when he raged all about “conspiracy” and paybacks (and let’s not even address Lindsey Graham’s raving lunacy).... Dems aren’t organized enough to have cooked this one up (and even fools could anticipate the collateral damage that would result).... though his own participation in the Starr investigation probably biased his thinking and assumptions. Perhaps more fitting... McConnell brought it to the brink with his blocking of Garland, all that was needed was a stumble to send us all over the edge.
5
To say nothing of the fact that the cult of originalists has determined that the founders were inflexible and unyielding, as opposed to sentient futurists whose Constitutional method was, if nothing else, adaptable to things they could not anticipate, like the tyranny of the minority.
2
Where's the prestige, now? What's the point to being a justice if any no account, partisan loser can be confirmed? All eight current justices should resign in protest.
2
The GOP may well succeed in ramming through the Kavanaugh nomination, but it will come at a tremendous cost to the nation.
With Kavanaugh as a Justice, the Supreme Court will lose any last shred of its reputation as an independent judicial body. Every ruling it makes will be forever tainted by the appearance of political partisanship and will not be trusted and respected by the public, especially Democrats.
As for myself, my faith in the so-called "rule of law" was forever shattered way back in 2000 with the Bush vs. Gore case, when Antonin Scalia and his GOP cronies on a blatantly political Court blocked Florida from recounting its votes on the absurd pretext that Bush's civil rights were somehow being violated.
When you look at the Federalist Society and all of the corporate special interests backing Kavanaugh's nomination, it is clear we have now entered a dangerous phase in our liberal democracy where the independence and impartiality of our institutions have been fatally corrupted by corporate money and power.
5
As I understand it, Supreme Court Justices are the solely responsible for choosing to recuse themselves. I would expect that Kavanaugh opinion would be that he does not need to recuse himself on few if any cases.
3
Prof. Tribe is, of course, basically correct. But as we have seen with Scalia and Thomas, if a SCOTUS Justice chooses to blatantly violate
the rules of Judicial Ethics, there is no one to hold them to account.
Sure, Congress could impeach, but they won't.
In order to be recused, a Justice must either do so voluntarily, or one of the parties must file a Motion to request it. Is there anyone out there that thinks Kavanaugh would do so voluntarily?
Or that a conservative-packed Court would grant a Motion for it?
This is where we are. We are close to the end of the rule of law in this nation.
3
I oppose Kavanaugh but to suggest that the Senate Democrats actions are non-partisan, to ignore the funding of anti-Kavanaugh ( and Pro-Kavanaugh) groups involvement in his nomination process, to suggest that this is not an orgy of partisanship is ludicrous. I found him intemperate, stupid in his bluster, almost 100% an angry drunk and therefore a liar, and very likely attempted sexual assault . For these reasons, he should not be a supreme court justice but the reasons are not because he called a spade a spade
1
Mr Tribe' analysis is spot on. But even leaving aside the questions of temperament, qualifications and policy: I simply can't believe what the public has to endure these days, just to read the news. A nominee for the Supreme Court actually sits there and actually says, in front of Congress and everyone, "I busted my butt in school." Not to mention the daily assault of tacky, sleazy language that comes out of the White House. And that includes all the people around Trump, not just Trump himself. And in Congress, too: foul language (Gillibrand, Grassley, Graham). Tacky, undignified, sleazy language, 24/7. And people wonder why faith in institutions has deteriorated. All I can say is, whoever brought these people up did not know what they were doing.
1
I too would prefer that Trump nominate a different person than Kavanaughty to the high court. It already has too many preppy Harvard-Yale types, and this nominee doesn't have the gravitas or the temperament one would like to see in a SCOTUS Justice.
As for Prof. Tribe's analysis, I'm afraid it fails to take into account precedent. Justices rarely recuse themselves, even though many have had what some people would consider conflicts of interest. Ginsburg spoke out critically about Trump. Scalia vacationed with Cheney. Rehnquist worked for Nixon. Kagan worked for Obama. The list goes on and on. SCOTUS recusal has in the past been seen as being tied to specific cases; such as Kagan recused herself on cases she dealt with as Solicitor General. I cannot recall a Justice ever recusing himself or herself based on political bias or because of the appearance of a sense of loyalty to the president who appointed him or her.
I'm afraid that Kavanaugh will be confirmed and will carry a grudge (compare Thomas) against Democrats. Given that the chances of blocking his confirmation was something like 1%, maybe the Dem machine should have thought of the risk of triggering this type of backlash before attacking the man in every way possible. Civility still counts for something.
1
Its fascinating as to why the republicans are behaving as though there's no one else possible in the world to full this position. They are the ones creating this circus.
It makes me consider if there's anything more sinister going on behind the scenes, as to their reasons why they're hell bent on dragging the country through this.
my instinct tells me its because they know that the president, on many fronts has acted illegally, and therefore they need to stitch up the court with someone who has "pledged" their loyalty to Trump? Who is predicatable.
So when the inevitable truth reveals itself, they'll be able to override fact and law so the president would then hold no accountability. Is history taught in schools adequately? Can the average person define the meanings of autocratic rule,totalitarianism or fascism?
3
Liar, liar, pants on fire. Kavanaugh dodged and ducked questions at the hearing repeatedly. His lies were obvious to anyone with a pulse. The fact that he is a judge is pathetic. He should be removed from the bench for life
4
Jason says, "I have resigned myself to the fact that a Trump nominee with whom I disagree will be placed on the Court, however I no longer think that this one is acceptable."
NO. WE THE PEOPLE must not "resign" ourselves to anything The Con Don and his Robber Baron brethren try to do to destroy OUR United States of America. We must not allow him to put any Robber Baron operative on OUR U.S. Supreme Court or any other federal courts. We must not allow state lawmakers to stack the court with "conservative" judges with no moral character, social conscience or brakes on their ego.
Jason, your thoughts are exactly how the Robber Barons manage to manipulate the rest of us. They are a tiny minority who have managed to get control of OUR financial system and communications. They think we'll just roll over and play dead as they destroy OUR lives. WE must not accept it.
Every single American who loves democracy and is grateful for the lives we have lived for the last 70+ years must step up and fight like hell to preserve/restore true democracy in America. Our lives depend on it.
We must act before they can further destroy our county. Before they and their International Mafia brethren can start WW3.
5
Hey guys,
Would Kavanaugh have to recuse himself on cases where a man has been accused of attempted rape while drunk?
Thanks,
Chrisotopher
2
Laurence, after all that has transpired, the supreme court is clearly out of the question. Now we should think about how we might justify keeping Kavanaugh in his current circuit court post. The same issues you raised also apply there, they are not restricted to the Supreme Court alone. And in light of his struggles with honesty under oath, disbarment from any legal practice is also not out of the question.
2
Mr. Tribe has nailed this one. With less than half of the nation supporting this nominee, 'winning' by the Republicans and Mr. Kavanaugh, will result in great losses elsewhere.
Mr. Kavanaugh is damaged goods as they say. He will do great harm to the court if approved. He will do great harm to himself and his family if he is elected. The investigations of Mr. Kavanaugh will not end, should he be approved. They will only ramp up as Democrats take control of the House. A disaster for the country, the court and to him and his family.
An honorable man would resign knowing all of this. Mr. Kavanaugh appears to have no such honor.
3
Kavanaugh, a longtime Republican political operative, should never have been nominated in the first place. His bias was obvious before he ever opened his mouth. I'd rather see nominees who have spent their careers practicing law, not politics, with a history of sound and neutral judicial decisions in lower courts. And by the way, there are many excellent law schools outside the Ivy League - University of Michigan, Berkeley, Stanford - to name just three, whose graduates might be less entitled and more down-to-earth.
3
We all know there are biases on the Supreme Court, and members of that august body will issue rulings with those predispositions. That is just being human. But it is likewise the job of the Justice to hear any and all cases fully and as impartially as possible and not interject that bias. Kavanaugh has demonstrated that he has these biases in plain sight, and his demonstration during last week's testimony show these biases are going to carry far too much weight in his rulings. The weight of this predisposition disqualifies him from being an "impartial arbiter" of the Law and the Constitution of the United States.
Interesting food for thought, the days of a blind and impartial judiciary are all but over. Untied we stand and divided we fall, as I see it both parties are doing a commendable job at keeping us divided it just happens that the GOP are a bit more obvious about it. IMHO
Judge Kavanaugh's outrage at the lefties was a response to blatant partisanship of the democrats who made it clear from the very beginning that they will use all means to prevent him from being the justice of the supreme court. He fought back with all he had and deserves to be confirmed to the supreme court. Two Republican senators hold the key to his confirmation Collins and Murkowski. Since Pence can be a tie breaker, one of the 2 can still vote against confirmation. So the possibility of confirmation is 50:50 at this time. IF confirmed I see no need tfor a justice Kavanaugh to recuse himself. I am sure his daughter will ask him to pray for the democrats and he will forgive them.
2
@Girish Kotwal You're just as biased as he is. Good thing you'll never be considered for the Supreme Court.
1
Question for anyone- in all these issues with the (obvious) unsuitability of Judge Kavanaugh to SCOTUS, do the sitting justices have Any say whatsoever in this? Can they or the chief justice, say he must recuse himself from a case? Or can they not say- we feel he is unsuitable to serve? Seems like in a hiring decision, if the boss wants to hire his nephew, the board of directors can ultimately take action to either prevent that or minimize that nephew's role in any significant position in the company. yes or no?
Tribe asks “given the blatant partisanship and personal animosity” of Bret Kavanaugh, “how could he be an effective member of the Supreme Court?” A better question would be whether the Supreme Court has become so politicized that it no longer has any credibility anyway. Mitch McConnell’s action in refusing any hearing on Merrick Garland’s nomination was a blatant act of partisanship that completely abdicated the Senate’s constitutional role in the selection of judges. Granted Obama should have forwarded his appointment to the Court on the ground that the Senate had either failed to perform its duty or, in the alternative, had waived its right to participate in the process. The court would have been forced to decide on the legality of McConnell’s action, one way or another, in considering whether to seat Garland. Obama’s inability to confront issues meant that an important issue has been left to fester. But the upshot is the permanent politicization of the court. Given that 28 USC Sec. 1 requires 6 justices for a quorum, one wonders why the four liberal justices do not counter Republican abuse by delivering the coup de grace of depriving the court of a quorum. The constitution gave the senate either the duty or the power to advise and consent, both of which requires its collective action of conducting hearings and voting. Doing nothing was either a waiver of a right or a dereliction of duty leaving Obama free to act. Defeating a quorum wouldn’t be any worse.
1
Those relying on reality TV for political guidance most probably missed the Red Green Show on PBS. Mr. Green's parting advice at the conclusion of every episode was - "Keep your stick on the ice."
Good advice for Brett Kavanaugh.
3
you assume that there will be anybody with any power to enforce the rules that apply to recusal. i don't make that assumption. i think we are a hair's breadth to the collapse of democracy.
5
The court has been partisan for years. Should the Supreme Court even been involved in Bush v. Gore? Supposedly, O'Connor thought she had made the wrong decision, but she wanted to retire soon, with a Republican president in place.
5
@froggy bush v. gore was a bloodless coup and kavanaugh was one of the insurgents.
3
Kavanaugh might "have to" recuse himself--at least, by all reasonable standards--but would he? I for one doubt it. I believe he'd relish every opportunity to "revenge" himself. If confirmed, he should be introduced as "Mr. Injustice" Kavanaugh.
6
Yet one more slight oversight by the Framers: Nine human beings in this country are accountable to no one.
Democrats have tried multiple times over the past four years to pass The Supreme Court Ethics Act (S.835). It continues to languish in committee in a GOP-ruled Congress.
Why do Americans need to secure oversight of SCOTUS? Well, little things like:
– Justices Antonin Scalia and Clarence Thomas attended Koch Brothers political functions at a time when the court was considering loosening limits on corporate campaign contributions.
– Justice Samuel Alito spoke at a fundraising dinner for the conservative American Spectator magazine, where tickets were sold for as much as $25,000 a plate.
– Justice Thomas failed to report his wife's income from the Heritage Foundation, even as she lobbied against the Affordable Care Act while cases worked their way to the Supreme Court. He also failed to recuse himself from ACA-related cases despite a clear conflict of interest with his wife’s work.
– Most vividly, re-read Prof. Tribe's piece on Kavanaugh.
11
Prof. Tribe might be ethically correct but we know from Justices Thomas and Scalia that rightwing Justices feel no need to recuse themselves, even when ethically suggested, and there is no way to force them.
9
Come on. Liberal partisanship, such as that which has been displayed on the left side of the Senate Judiciary Committee, is perfectly fine, but conservative partisanship isn't? Women may be furious and confrontational, but men may not? A judge, being a human being with personal opinions, must somehow purge all those thoughts from his mind, but a lawmaker with the power to destroy livelihoods, imprison people, ruin their lives and regulate every aspect of their daily routine may exhibit their biases openly and brazenly without fear of criticism or counter-attack? The left has gone from double standard to rank hypocrisy, and they are squandering whatever goodwill they have earned in the first term of the Trump Administration.
10
@Ed L.
So it's okay with you to appoint a guy who explicitly threatens revenge on his political opposition to a lifetime the Supreme Court.
2
@sam
If the shoe were on the other foot and Mrs. Clinton were the one making these appointments, she would be selecting conservative Republicans, correct? The funniest part of this whole charade is the fact that Democrat partisans don't think of themselves as partisans. It's the other tribe who are the partisans. Liberals are pure as the driven snow, and their Supreme Court picks have no political opinions whatsoever, right? One would have to be either incredibly naive or insincere to the point of mendacity to hold that view.
Kavanaugh disqualified himself with his first public utterance after being nominated and introduced by the president. He sounded more like a candidate for political office seeking Trump's endorsement with his obsequious and false claim that Trump worked harder to screen nominees for the associate justice post than any other president in history. This corroborated the fears many people had about his being a political operative from his experience working in the Bush WH and with Ken Starr against the Clintons. This statement also adds to the problem of his credibility now that we've heard further deviations from truth. Affirming this nomination would only further sink the Court into the quicksand of partisanship, and the public trust of the Court, already low would evaporate.
3
One wonders whether Professor Tribe’s warning of the dire recusal consequences of confirming Kavanaugh was not only directed to the general readership of the NYT, but more importantly aimed at the siting Justices on the Supreme Court and particularly John Roberts. Who knows how he, and they, may be able to discretely sound alarms, Soto voce, over this crippling prospect.
5
This strikes me as very naive. If you replace "would have to" with "should, IF he were to maintain some semblance of Integrity" it would be more plausible.
The Republicans have demonstrated no real interest upholding their Oath of Office to "support and defend the Constitution".
Kavanaugh is their "Best". Why would you expect him to be any different? Indeed, his testimony shows how appropriate he is for the job -- from the Republican perspective.
SAD.
6
Were his nomination to the highest court not confirmed, he would still occupy the bench on the second highest federal court in the country: the Circuit Court of Appeals for the D.C. Circuit.
His demonstrative bias, his intemperateness, injudicious demeanor to the Democrats on the Committee, belligerent response to questions and lack of credibility would still present the same insurmountable problems in his current position. While Kavanaugh seems to be intellectually qualified for the federal bench, he’s disqualified for such position for all the reason Professor Tribe enumerates. Kavanaugh is unfit to be a judge on any court. Depending on the outcome of various investigations, currently being conducted and those to be conducted in the future, he may be disqualified from the practice of law.
That said, while the Republicans control the Senate, he may, in spite of Tribe’s brief, be sworn in to sit right next to Justice Clarence Thomas!
2
Absent Kavanaugh's elevation to the Supremes, doesn't his Judiciary Committee rant provide grounds for appeal of any decisions made in his current gig?
6
His prejudices don't matter. In fact, to the Republican hacks who are fighting the most to rush through his confirmation, the more prejudices he has against left-wing causes, the better.
Unless the President (and not this one) has the power to force a justice to recuse himself from cases, all of this is moot.
1
I was shocked as I watched Judge Kavanaugh's display of extreme anger and disrespect toward the democratic senators, "liberals", and even the the Clintons . I agree with others that this is not the demeanor of a judge who is should be seated on the Supreme Court.
He was caught minimizing and often outright lying during his first hearing when the democrats, who had access to only a small fraction of his paperwork, confronted him with actual documentation that refuted his answers. I don't understand how the republicans chose to behave unethically by not releasing all Judge Kavanaugh's paperwork to the democrats to allow a fair and just hearing.
Judge Kavanaugh reminds me of my father who was a raging alcoholic. When he drank his face would turn red, he would become verbally abusive and violent. On at least 15 to 20 occasions, when I was 8-9yo, he violently raped me. There was no one I could tell. I was so ashamed that I kept it to myself until I saw a therapist for PTSD symptoms when I was 40. My father had died years before that.
I am concerned that Judge Kavanaugh may still be drinking to excess, especially based on his hearing 5 days ago. He was enraged and belligerent, and his affect was completely inappropriate for the circumstances.
Families keep secrets, especially if there is a risk of harm. His wife and children would never speak out. I just hope that during his FBI evaluation, this is looked into.
8
Will Prof. Tribe and those that agree with him apply the same standard for recusal to Justice Ginsburg who has on more than one occasion tore into Pres. Trump? Or does Prof. Tribe's standard apply only to those with whom we disagree? I look forward to Part 2 in which Prof. Tribe advises Justice Ginsburg to recuse herself in cases involving Pres. Trump.
5
Well, Justice is supposed to be blind, but not due to overwhelming ideology nor fawning obedience.
2
This is the heart of the issue.
1
Blatant partisanship is the chief qualification to be on an illegitimate court.
1
Presumably Prof. Tribe would ask the same of RGB, whose statements about the current president are as partisan as it gets
6
@Chip
But RGB does not make declarations about Trump with a sneer, with rage, with statements filled with unjustfulness and anger over her position as a woman and the minority often on the SC.
Judge Cavanaugh's statement and responses in the heating with Doctor Ford, Democratic Senators, and others, were deeply disturbing. I don't think I could forgive you, sir, for what could be the future -- you made such outrageous, disrespectful, angry and generally out-of-line statments unlike what I want from a Supreme Court Justice.
Although he claims to have an open mind, I just can't believe that he could put on a performance at this hearing and also then go to the highest court in the land and be absolutely non-judgemental until he'd heard the facts of the case and discussed it with the other Justices. Please, President Trump, find another nominee -- or, even better, insist on a *Republican-style" wait to see if the Democrats have a majority next month after the midermidtern election. I understand that you want to cement your legacy as bringing conservative judges to the court. But we must find another man or woman who seems to have a fair and balanced judicial temperament. Judge Cavanagh came across to me as almost a lunatic with strong beliefs and not much chance to change his mind or reverse his hurt at the way he acted and was treated in the hearing last week.
3
@Jerry
I think the fundamental point is that Kavanaugh got to where he is now as a partisan cog in a political machine involving both Ken Starr and Bush II.
How can anyone believe that he will lightly leave that behind.
2
@Jerry
And you supported his nomination to the Court unequivocally prior to the hearing, then?
And the same could be said about the left-wing of the court. Democrat appointed Justices never waver from the positions of the party that put them on the court, NYTimes analysis shows. Some of those Justices even feel free to express contempt for conservative views! That contrasts to at least some Republican appointed Justices, again as NYT studies show,
5
You don't give any examples of actual votes of NYT studies where the Republican appointees vote against their party vs the Democratic appointees. For openers, I can cite the very significant case of Bush v. Gore of pure Republican partisan the court.
1
This administration and GOP Congress has absolutely no regard for the arc of history and their collective place within that history. Unless they will write it...
@chuck greene
Right you are, Chuck. I think we should add 'no respect for the arc of history' to an earlier post by someone else on what the "heart of the matter" really is, and why the heart of the matter should control who we can prevent, by "any means necessary," the seating of any Judge with whom we disagree politically. By all means necessary.
Oddly enough Mr. Tribe's favorite word seems to be "trumps"....how can that be?
1
In this week of Nobel Prize announcements, here's a result that bears watching:
No matter how much beer you drink (Kavanaugh) or do not drink (Trump), it will not have the slightest effect on your propensity to tell the truth. Beer in all quantities, from zero to 100 kegs, is on the truth-lie level, on the polygraph level, 100% useless.
On the less light side: it's the partisanship and the propensity for conspiracy theories. How I would love to be a fly on the wall of a SCOTUS discussion; what would Kavanaugh's colleagues make of him? Worse: would it matter? No different from having a lying non-beer drinker sleeping (or tweeting) next to the nuclear football.
2
@michael cullen
I'm so glad you posted this. I had completely forgotten that the heart of the matter isn't really changing the standard of guilt from" innocent until proven guilty"" to guilt by accusation,"--or was it his judicial temperament, or suspected liklihood to rule in ways with which one disagrees, or that he doesn't respect "the arc of history." When all along we should have said--perhaps even at the p"oorly recalled -sex assault" hearing, that the heart of the issue is the nuclear button. Heard about how North Korea and South Korea have been talking together? Or don't your preferred media focus on that?
I can just imagine the irony, and the outcry, if he is seated on the Supreme Court and votes to end abortion.
1
@Scott Cole - Quite simply, that would not be an example of irony. Irony would be Kavanaugh voting to continue allowing abortion.
Anyway, it's not really such a big deal as everyone makes it out to be. Those who don't want an abortion are still not being forced to have one, right? Being illegal had never prevented abortions or attempted abortions. Why would it matter now that the use of Plan B has become so effective and so widespread around the world?
1
@Scott Cole - Irony would be if Kavanaugh were to vote to reinstate abolotion.
1
@Scott Cole
Or, far, far more likely, the "you could hear a pin drop" silence on the Left when he does not.
The picture shows one angry, white, male entitled partisan judge. There ought to be some better qualified judge without drinking, gambling and morality challenges that can sit on the Supreme Court. That is not too much to ask for US.
4
@nat
I especially have to congratulate you on pointing out his skin color; I think, don't you, when all is said and done, that by fiat we should disqualify any and all further white guys from consideration. But wait--wasn't Garland white--and a guy, too?
It seems to me that this person shouldn't be a judge at all; not Supreme Court or any court. That is based on his evasive/ aggressive, weepy/vengeful AND sanctimonious demeanour during the Senate hearing. This mention of his daughter praying was worthy of Tartuffe.
And that is even without the weight of the allegations by Dr. Ford. Very distasteful.
5
To me, this is the most telling difference between nominee Brett Kavanaugh and Dr Blasey-Ford.
For him it was all me-me-me. I'm a good guy, I'm a Yale hero, I didn't do anything bad, not ever, I deserve to be on SCOTUS, not held up from what I'm destined for with all this hassle - only nasties would deprive me-me-me - and I'll get you for it.
In contrast, consider how Dr B-F described fearing for her life - a solid athlete's body crushing her lungs and his hand over her mouth - it wasn't "I thought I'd die" but rather "I thought Brett might accidentally kill me".
Even recalling such a devastating moment Dr B-F isn't thinking of herself, but seems more aware of what might be the consequences for the other person. To me, that word "accidentally" is a key indicator.
But that's then. From here on, BK's own performance of boast, braggadacio, blubber, bullying and vengeful bluster is even more reason to say kava-NO.
6
@ilma2045
Clearly, POTUS should have appointed her.
Tribe has administered the coup de grâce to Kavanaugh's candidacy I expect. It may take several days before the fall, but the end is in sight. Most of the republican senators just don't realize it yet.
2
The concern here is more decorum than substance. I don't think the Republicans in the U.S. Senate would approve any candidate who did not have a conflict of interest in favor of corporations and billionaires over workers, consumers, the environment or public health and safety. Of course it is much more convenient if the nominee does not rant about such things in public before being confirmed.
3
@Dave Just as Democrats would love to stack the Court full of justices who see no problem with government overreach, unlimited federal power over states, more regulation, and additional restrictions on personal and economic freedoms.
3
We all know one thing for sure: Judge Kavanaugh would absolutely vote to allow beer onboard US Navy ships (again). Remember; One of Great Britain's greatest Naval Commanders, Vice Admiral Lord Nelson heartily supported the same. He was the primary Admiral responsible for winning the Battle of Trafalgar in late 1805 (in one of the Napoleonic Wars). This was a huge naval battle in which Nelson commanded 27 ships, fighting large French and Spanish fleets. My point is, the Brits had plenty of "grog" (beer) on board. I am sure Kavanaugh approves.
I have to wonder (again) just what Trump (or Putin) has on these senators to make them kowtow so shamelessly. What is the "skinny" that Trump knows about them?
To vote for Kavanaugh after his rant before the Senate committee, and the world, shows a lack of decency and patriotism.
4
You’re misreading this one. It’s all about power. Kavanaugh will protect Trump, sure. But congress can rein in Trump when need be. Kavanaugh meanwhile can overturn Roe and limit the EPA to congress’s “original intent”, per his own devination of that intent. It’s all about protecting the powerful. It’s all about money.
It’s not Trump that controls congress. It’s the wealthy. They like Kavanaugh, Trump or no Trump. That’s the deal.
@TinyBlueDot
Of COURSE! How could we forget to bring Russia collusion into this discussion. Silly us.
1
Can people not see that this is about more than the hurt feelings of one man?
2
@Nora
I can, Nora. It is about the sexual assaults against women all across this country--assaults for which "this one man" must be held accountable, isn't it? I know he wasn't actually "there" for those assaults, but that is a minor point. After all, he is male, white and "privileged," and that is as good as politidal gold a we are ever going to get.
1
I wonder if Prof Tribe ever published a similar story for how many ways Justice Kagan would have to recuse herself? Especially when she was a primary lawyer helping the Obama Administration write up the Affordable Care Act, then lo-and-behold, she ends up voting on validity of aspects of the Affordable Care Act, including the issue of the mandated fee.
Prof Tribe probably didn't see a recusal as necessary in that case, since the Affordable Care Act was a leftist cause, and therefore didn't warrant Kagan's recusal.
Which makes him quite partisan.
4
I recall there were hearings for Kagan. I don’t recall much controversy. She was confirmed by a 62-vote majority.
Expertise is not a problem. Every judge at that level is an expert if some area of the law. It is not a forgone conclusion that expertise equals partisanship, or even that a law you helped draft will pass every constitutional challenge.
Kavanaugh’s problem isn’t expertise. It’s that he’s a partisan hack. Opinions he’s written — like the one about the immigrant minor’s right to an abortion — contravene precedent and are overturned. That inexpertise. He’s made plain he views it as his job to curtail what he sees as a leftist agenda. That’s not just not impartial, that’s kooky.
@E Newton
Mr. Newton, are you just now coming to the realization that partisanship is OK so long as it is only on the Left?
1
Quare: How did, for example, Felix Frankfurter, William O. Douglas, Louis Brandies do it?; How does Ruth Bader Ginsberg , Elena Kagen do it?
The SCOTUS has been an extension of the political philosophy of the appointing administration...with the near term exception of Stephen Breyer.
If Garland was appointed should he recuse himself if the issues was Roe?
Let's be honest as well as realistic.
4
Complete nonsense, Mr. Tribe. One member of the Senate Judiciary committee called him evil and another said that his presence on the Supreme Court would lead to tens of thousands of deaths.
So exactly where is the animus ?
4
Are we to be surprised that a man unfit to visit the White House on a tour would nominate a man unfit to do a cameo appearance on Judge Judy? This is the world under the man called Trump.
3
Ah, Mr. Tribe, you are kidding yourself. This guy is not honest enough with himself to recuse when necessary. The behavior, in fact, of most of the Republican Senators since the election of Trump has been a total abdication of their Constitutional duties and obligations. There is no sense of embarrassment or shame either. The Founding Fathers are spinning in their graves.
3
@B. Rothman
Weren't the Founding Fathers the white privileged males who gave us this Repubic and our Comstition? What could you possibly be thinking?
Judges never HAVE TO recuse themselves. It is always up to them. RBG personally attack Trump during the election campaign. How many times has she recused herself? Try never.
3
How bogus. This is written by a partisan. And everybody knows that Dems would not support a candidate who doesn't support Roe v. Wade and would expect a Dem court nominee to be on their side. That's partisan.
6
The GOP does not care about the reputation of the Supreme Court. Judge Kavanaugh was picked precisely because he is a political partisan hack who has strong views on presidential power and a promised no vote on Roe.
The idea that he would recuse himself is ridiculous. He has enough ego and gall that he has no personal problem with fulfilling his future duty on the SC.
Put Kavanaugh's frat boy entitlement and self-pity aside.
He lied under oath.
That under normal circumstances would disqualify him but these are Trumpworld times and the GOP does not care. They will do anything to maintain their power and authority for as long as they can.
2
Nonsense. Kavanaugh"s comments were about the politicization of the nomination process, period. No refusal would be needed, although it is disappointing that Tribe has joined in the character assassination party.
5
Wouldn’t it be simpler to simply pick someone better?
4
@Glenn Woodruff
"Better" than what? There are only baldfaced, empty accusations, Glenn.
If that is to be our standard--pick someone "better" every time anyone launches any unsubstantiated accusations against a nominee, do you really think we would ever have one more justice ever seated on the court?
no rules on recusal, it's about personal ethics.......um, this guy doesn't have any, so he lines up pretty well with most of the right wing on the court. Not sure why we're even talking about recusal, he'll only do it if it serves his own personal and ideological interests. Besides being a coward, he's clearly a terrible liar, a brown noser, the kind of guy who punches down and kisses up but most importantly - he is a lab grown hard right ideologue, his judicial record almost always supports the powerful over the powerless and he hardly ever supports civil rights as they apply to individuals.
2
@Rickibobbi
Ah, so now he doesn't have any ethics, does he?
Perhaps it is his accusers and their partisan comrades who lack ethics.
Ethics would call for not assuming guilt when there is nothing to substantiate the charge except partisan hysteria.
Such a brilliant man, the author of this piece, ... but any well-informed teen can see that either the headline writers/extractors are imbeciles ... or Prof. Tribe himself has lost the thread.
The implication is that he "would have to recuse" - those words are big and bold just to the left of where I'm typing - himself, but we know perfectly well that is NOT the case.
Maybe, he "should," just as maybe the Judiciary Committee "should have" voted NO on a man who so clearly lied under oath.
But EVERY Justice brings a certain "mind set" to the bench. Some try harder to judge each case on the merits ... or make it seem that they do.
But you'll never see a Las Vegas "book" on 7 or 8 of the sitting justices. Gorsuch & Kavanagh - IF, IF, IF another tragic vote goes through - join Clarence Thomas as "automatics" on ANY issue where the 2 political parties generally diverge.
Sadly, this means - FOR SURE - anti-labor, anti-women [that's a little over-stated, but barely], anti-gay, anti-minority positions.
Yes, his "handlers" (or his own mean drunk demeanor) said that he did better to lash out than to continue in his "stealth" mode, but forget about him recusing himself. He CAN'T WAIT to put action to his hateful words.
Professor Tribe offers the hollowest hope that a 4-4 court would uphold things like Roe v. Wade, lacking a fifth vote to overturn.
In doing so, he does all readers of the Times a great dis-service!
@edtownes
Maybe, he "should," just as maybe the Judiciary Committee "should have" voted NO on a man who so clearly lied under oath."
Clearly? By the way did you happen to spot any lies under oath by the good Dr. Ford?
I understand what you are saying. but how would you stop him? GOP is adamont to make a show of it by ordering FBI investigation. Senator Flake could have stopped it right at the committee vote but he asked for limited FBI investigation. Even after all reports come out against Judge Kavanaugh senate GOP majority cn over write all these reports to confirm him. you can see that in the statement of senate leader Mr. McConnell and the President for the judge. Judge Kavanaugh is too partisan, too anti-women and too anti-democrat. How could he be a fair Justice in the supreme court? What we now know of him he even does not qualify for the judgship.
1
And what about cases involving gerrymandering? Voting rights? Russian hackers?
1
Brett Kavanaugh has shown he belongs to a faction.
"The latent causes of faction are sown in the nature of man...
A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good."
-- "The Federalist", No. 10 (Madison)
Factions can't have a say in the Supreme Court - or the Republic is dead.
Factions, continued:
"A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons, of whom they are composed, into improprieties and excesses, for which they would blush in a private capacity."
"A successful faction may erect a tyranny on the
ruins of order and law, while no succour could constitutionally be afforded by the union to the friends and supporters of the government."
-- No. 15 & 21 (Hamilton)
@PubliusXXI
Rather a blind observation, wouldn't you say, to all the factions that put Lefties on the court? Are we dead yet?
Summary: Justices cannot be compelled to remove themselves from any case.
K. will probably be confirmed. Remedies after the fact include:
- Congress can change the law addressed in a particular case.
- Congress can impeach a Justice.
- Congress can confirm the appointments of Justices with other leanings and temperaments.
- Congress can start the process of amending the Constitution.
Anybody notice the common thread in all that?
Elections have consequences. If you don't vote for the Democrats you are voting for the Republicans and all of their reactionary policies.
4
I agree with Lawrence Tribe, however given the ethical lapses of the current administration and the fact that Kavanaugh is merely an instrument of the radical right wing I would expect him to invoke his duty to sit even when recusal seems proper and necessary.
4
I think the whole idea of this process is to continue a mistrust in the way the United States works. This is a bigger piece of the unraveling of our America. We all need to vote, and vote for candidates who represent stability in our way bn of life. This mistrust and doubt is a part of the Trump doctrine, we need to understand the bigger picture, Russian influence, perhaps, Trumps idea on how to prosper, 100%. My advice, the game is on check your fatigue at the door, we will be going hard in the paint.
1
You are absolutely correct. I don't think Kavanaugh gave any thought to these considerations because he has spent decades living in a world where the "highest good" is the opposition to anyone or anything associated with liberalism or "the left." To people like Kavanaugh, justice requires the nullification of these ideas.
1
Kavanaugh and crew care most about payback and pay-me: vengeance and greed, not necessarily in that order. Aided by biased media, they have gleefully demonized Democrats to such an extent that they nearly have a stroke even mentioning them. Trump of course has fomented this and stirred a great big boiling cauldron that is bubbling over. Look out!
Blatant ...: the blatant bias lies only with the author. The esteemed Judge has a long history of upholding the law as written. Thus, the Dems unable to attack his record, lowered themselves to dirty tricks, delays and character assassination of his high school days. One incident from his high school days with no evidence. Yawn.
1
Great analysis. He also lied. Both combined you have a one-two punch that will knock him out of contention.
1
The lead photograph is striking.
There was nothing “honorable” about Kavanaugh’s sneering, anger filled, self pitying performance last Thursday.
2
Kavanaugh's oberservation (or, as I would call it, threat) that "what goes around comes around" alone should be enough to disqualify him from the Supreme Court.
1
Such a pleasure to read so articulate and apt an article.
1
Dems and so-called ‘progressives’ try to destroy Kavanaugh based on an 11th hour false charge and now, apparently, he’s unfit to serve because he’s — wait for it — angry and biased against those who tried to ruin him? Unsure Dems can get any more absurd but I suspect they’ll try...
3
I’m not a so-called progressive, thanks very much.
Kavanaugh was quite plain in showing us his political views and partisan perspective, anger or no.
How about finding someone at least half the country can respect? Why do we have to live with your every guy, no matter how tainted and tawdry?
Please take this moment to remember to register to vote and then go vote.....
This episode is a great reminder of what happens when you do not vote
3
Thank you for stating the obvious.
Moving on I see.
2
I'm praying intelligent, ethical, rational and compassionate aliens decide to visit/intervene here on Earth, very soon.
1
This is an unsurprising, typical diaTribe with flawed legal reasoning. Tribe claims to know recusal law, but this column demonstrates the opposite. Tribe is an advocate who uses the recusal rule as a litigation tactic. His argument, including the cases he has cited, is specious. Why he remains at Harvard is a mystery to me as his Constitutional Law textbook is a partisan work, not an objective analysis. If you are serious about learning US Constitutional law, you read Gunther and avoid Tribe. Another self proclaimed expert who has no business misrepresenting recusal law except for a gullible population of readers who will seize on it as accurate. A point by point response would be a pleasant exercise, except that Tribe doesn't listen to anyone other than himself. This column is not worth the Times. I suspect a real paper like WSJ wouldn't print it, nor do I see a rigorous law review publishing an expanded version. An objective and thorough analysis will destroy Tribe's politically motivated column.
4
@John Does this suggest that because, in your opinion, an un-real paper like the NYT published your comment, that the comment shouldn't be taken seriously?
2
If he gets on the SC I suggest that Bill and Hillary attach their names to every pending case. Then he would have to recuse himself. PB
2
And didn't the estimable Ruth Bader Ginsburg come right out and criticize Donald Trump? See her words for yourself in the WA Post archives, December 6, 2017, "Justice Ginsburg Has Some Explaining to Do." Not to mention similar articles easily found elsewhere.
Nice work for an "unbiased" justice. But then, she's a liberal darling, and so above all criticism.
4
Above criticism, because the Washington Post is such a bastion of the right wing. Nice try.
Talking about Ginsberg is just a way of not talking about Kavanaugh. If you think Ginsberg should be impeached for blatant political views, go ahead and make that case. Tribe is making the case that Kavanaugh should not be confirmed because he has expressed those views as no other nominee has and as none should, if they are to be seen as impartial. “The other kids all do it” is not a defense.
1
A key problem for Kavanaugh is that many people now see him as a liar, a spinner of truth, and a political evangilist. He doesn't express himself as a wise judge, more as a dissembler and sophist to a point of view that is simply false or political.
Kavanaugh's representation of himself as a church going, goody two shoes nerd is a lie. He was a boozer and an aggressive drunk in high school and college. Many credible people have testified to his drunken behavior and the evidence is self expressed on his calendar. He doesn't deserve to be on ANY federal court - the prior evaluation of him was incomplete, to be kind about it.
2
Wow. Hey, FYI, Earl warren supported Japanese internment and was instrumental in its execution. What would you do with him? Was his temperment disqualifying?
2
Wow, hey, Earl Warren isn’t the nominee. That was what, 60 years ago? Try to keep up, please.
The question isn’t RBG or Warren or Learned Hand. Everyone has made decisions they regret, or that we regret. Robert McNamara comes to mind.
The question is Kavanaugh, and whether he’d be a good, impartial justice. If you think despicable liberals have ruined him for life and would besmirch anyone Trump nominates, I give you Neil Gorsuch. And Roberts and Alito before him.
This man is the farthest thing from impartial, as he himself demonstrated with his own words. It takes a certain chutzpah to shout down senator Leahey at your own confirmation hearing. That was contemptuous, and he should be held in contempt. Not confirmed.
3
If Kavanaugh had an ounce of dignity he would walk away now, having debased himself at a level never before seen at any other Senate hearing. Crybaby Kavanaugh does not deserve a seat on the highest court of the land based on his hysterical performance last Thursday. The Supreme Court is not his entitlement and it is no place for someone who can't put his personal issues aside.
3
“Well before last week’s hearing, public officials and scholars of legal ethics were already debating whether a Justice Kavanaugh, with his unusually expansive views of presidential power, would be required to recuse himself from cases involving the legal fate of the president who nominated him.”
My question is, Who oversees this? I feel like we’re edging toward unchecked anarchy now. So WHAT if the public doesn’t trust the SC? Do they care? Does the GOP care? We have a president/White House being run by unnamed, self-proclaimed, self-anointed adults in the room, who pick and choose their own policies; who change transcripts of WH press conferences to cover up idiotic, misogynistic presidential remarks; a president who’s in love with dictators in foreign lands at the expense of the US; a president who’s undoing 70 years’ worth of foreign & domestic policies... Then there’s a SC nominee who feels compelled to lie about games (treatment of women) in his yearbook and a president who brags about grabbing women at will, with a complicit GOP. What body is going to tell BK to recuse himself? He’ll cry and whine privilege like he has all along and continue on his merry GOP path of I, Me, Mine, while women and minorities look on in disgust and protest, ‘where’s mine? I’m outraged too.’
3
What about the thousands of pages of documents from Kavanaugh's past that the Senate was not allowed to see?????
What about his refusal to answer the questions Senator Harris asked about his collusion with Trump's lawyers?????
What about Kavanaugh's participation in his friend's "alternative theory" blaming someone else for the assault on Dr. Ford?????
What about his refusal to agree to an FBI investigation of the allegations????
1
@rational person
Uh oh, and what about "whataboutism" when it suits one's needs?
What about all the decisions he has written during his ten brilliant years on the bench? Why does no Democrat look at that actual evidence? Could it be it would not support their partisan line?
I fear, Professor Tribe, that you are stuck in a lost era of personal honor and respect for law. Today, money speaks, and it bids for ruthless power.
Read aloud the Preamble to your precious Constitution, and weep!
Kavanaugh was selected because Trump/Republicans trust him to deny the blessings of liberty to all but elderly white men. Recusing himself would never cross his mind.
4
RBG openly opposes Trump. Yet you have not called for her recusal in all cases in which the government is a party. Your bias and partisanship is striking.
5
NBC news is reporting that Kavanaugh had contacted former classmates at Yale to help him refute Debbie Ramirez' allegations in the days BEFORE the New Yorker article broke her story of Kavanaugh exposing himself , pushing his genitals in her face. Yet when Kavanaugh was asked under oath in the hearing when he first learned of her allegations, he said it was when the article was published. There are apparently text messages to support the story of his contacting people earlier than publication. This is potentially evidence of perjury. I hope the FBI is investigating!
2
Is this whom we need on the Court, a Patrick Buchanan with a twist?
Pretty neat. First accuse an innocent man, drag him into unbalanced "hearings" in which the over-protected, self-contradicting accuser must be treated with kid gloves while he is savaged, based on a total lack of evidence, and when he calls you on it, he disqualifies himself from certain cases?
Give it up, Tribe. This is even more transparent nonsense than the suggestion that he showed his "intemperance" when he said this is all part of an orchestrated political hit it--which everyone, perhaps even you, knows it is. Are you just jealous because you still have not been appointed to sit on the Big One?
5
Savaged. I’d like to know one question Kavanaugh faced that was part of being savaged. Just one. What terrible, impermissible, unfounded question was asked of him?
Maybe he feels insulted. So what? No one forced him to accept the nomination, and no one forced him to sign his yearbook or go to those parties. Somehow, other candidates for the Supreme Court do not routinely evinced evidence of drunkenness and sexual misconduct.
Maybe pass on this guy. One Thomas is one too many. We don’t need to make it a tradition.
2
@James K. Lowden
" Somehow, other candidates for the Supreme Court do not routinely evince evidence of drunkenness and sexual misconduct." Perhaps, somehow, other candidates for the Court are not subjected to carefully- orchestrated 11th hour well-rehearsed unfounded accusations and "women's movements' that intentionally conflate their own sexual assaults with the flimsy one we witnessed at this "hearing."
Could that account for it?
Post this in all major public places in all 50 states:
"Judge Kavanaugh’s attacks on identifiable groups — Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons” — render it inconceivable that he could “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, Naral Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants".
3
Is Kavanaugh more partisan than RBG? I don't think so. And she does a pretty good job. Back to the cave, Tribe.
3
Will Kavanaugh need to recuse himself from cases involving thus of us who have written published comment sin favor of, or expressing disfavor for the man, his behavior, his attitudes or opinions, his demeanor, his truthfulness, his integrity or lack there of? Give. How harsh much NYT writing is toward him and give how donating and favorable Fox News and the Daily Caller and another’s have been toward kavanaugh, will he have to recuse himself from cases involving the aforementioned people or entities or similar?
1) justice Ginsburg said something to the effect it’s a sad day when Trump was elected. We should move to New Zealand. Is she partisan?
2) would you mr tribe allow an Atticus Finch style cross examination of Dr Ford or is this out of bounds like so many liberals argue
5
Do you want there to be only Justices on the court with no opinion of Donald Trump? Is there such a person? Or should they all kneel in fealty? Or should they never be allowed to express their opinion, but be allowed to act on on silence? Really, I don’t see your point.
Ginsberg didn’t claim any conspiracy or vow any revenge. Kavanaugh did both.
I would let Ford be cross examined the day Kavanaugh is compelled to answer a question, instead of hiding behind judicial discretion at every turn. We’re entitled to know his judicial philosophy and his reasoning on the issues of the day.
Kavanaugh told the committee he believes outside left-wing forces are trying to derail his nomination. He might be right. But that’s their right. It’s not a conspiracy, and he’s not too good to be confronted with questions.
2
Remember how the Republicans freaked out when Notorious RBG ventured an opinion (a negative one) about Trump? "A judge shouldn't have a political opinion!", they shouted. "She won't be impartial!", they screamed. Well, guess what Republicans. Kavanaugh's vindictive, anti-liberal, Hillary-invoking (God, these people are OBSESSED with Hillary. Talk about mommy issues.)
conspiracy theory screed should definitely tarnish him beyond rehabilitation. You cannot possibly vote him in - unless, of course, you decide to be a bunch of hypocrites ...
1
So I guess Justices can only rule on cases that effect their friends and the surest way to force a judge to rescuse him/her self to attack them. Shall we apply that across the board?
What Laurence H. Tribe argues in this piece is exactly what I was thinking after I listened to Judge Kavanaugh's statement and responses to the Senate Judiciary Committee members. The crucial issue for me is no longer whether he attempted to rape a 15 year-old girl in a party while he was a 17-year old high school student (since that issue is difficult to prove under the current circumstances -- unless Kavanaugh's friend, Mark Judge, corroborates Ford's testimony). The crucial issue for me is: on that day, Judge Kavanaugh disqualified himself from serving on the Supreme Court through his own partisan statements and his temperament. Another issue that peaked my interest was that I found him to be more disrespectful to female senators in his exchanges with committee members. For the good of our country, I hope that some of the Republican senators thinks like I do and they decide to move on. I am confident that there is another equally qualified judge whom we can trust to be impartial despite his/her conservative credentials.
3
Can Roberts refuse to seat Kavanaugh?
Gamble v US is the key to why Kavanaugh was chosen and why the GOP—and particularly Trump—wants to push Kavanaugh’s advancement to SCOTUS so quickly. The case is already on the docket and they want Kavanaugh to hear it. The NYTimes should do an article about this case. It really explains what is behind everything.
2
It's not all bad. In the unlikely event that entitled sex-abusing drunkards from elite eastern schools are brought in to face the music they might have another friend on the court.
@UH
And in the likely event that political partisans on the Left continue to treat unfounded accusations as guilt-by-political affiliation, this sort of circus will accompany every appointment by every conservative for the next century-- if we last that long.
If “recuse” doesn’t end up being the Oxford Dictionary word of the year, I’ll eat my left shoe. Until Trump got elected, I’d never even heard of the word; now I can’t seem to get through a reading of “The Times” without encountering it.
2
@slogan The word "trumps" seems to be Mr. Tribes choice oddly enough.
Judge Kavanaugh lost me at "flatulence and beer." All kidding aside this man has serious anger management issues. Kavanaugh's intemperate rage against liberals and Democrats only proves he is unable to render a fair, impartial decision if he does make it to the Supreme Court.
Let's add insult to injury. Mitch McConnell is determined to hold a final confirmation vote on Kavanaugh as soon as possible. This is the same Mitch McConnell who refused to grant Merrick Garland the courtesy of a hearing, preferring to wait over a year to see who would win the 2016 election. It's just despicable that McConnell is now rushing for an immediate vote on this flawed candidate. I guess that keeping a 5-4 conservative Supreme Court majority is the most important thing of all. Who cares if the nominee is a twerp??
5
Eleven Necessary 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 enough.
-- The overreliance 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 nonlawyers 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 a 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 fairly 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.
4
We are finally seeing the 800 pound Gorilla in the room, minority control of the majority for the next 30 years, but what to do about it? Democrats always bring a knife to a gunfight and wonder why they always end up on life support, witness the gerrymandering, bogus voter fraud, voter id restrictions and purging voter rolls buttressed by Scotus in Bush v Gore, Citizens United & Shleby v Holder. Governor Terry Mcauliff calls it correctly when he says all Politics is local, fight for State Houses and Governorship's and fight like your children's lives depend on it.
6
'Partisanship"? No, just a man with a normal reaction to one of the most despicable and disgraceful Democrat party smear campaigns directed at somebody they will do and say anything to keep off the court. Name one thing he stated about the Democrats on that committee that is not true. That Tribe, a supposedly esteemed law professor does not understand that and tries to paint it as unjustified criticism, says everything you need to know about the Left. In or out of Harvard.
2
HEY! I'm a big fat Republican. I voted all red.
I DO NOT want Kavanaugh in the court. Anybody who is so far right is not better than anyone so far left. They are both dangerous. Lets get some moderation in a candidate.
7
and you think these issues matter to Republicans?
2
1—If the question is: Have you ever blacked out from too much drinking?
2—And your answer is: I graduated top of my class in Yale!
3—You have no right to be a lawyer, a judge, or a supreme court justice.
9
@Opinioned! Priceless:-)
He said "on behalf of the Clintons".
If he said Hillary Clinton, it wouldn't be so bad.
But using the plural,Clintons, struck me as a long term grudge against both of them. And that grudge is disqualifying.
4
Q: What do you call a tainted Supreme Court decision?
A: The law of the land.
3
Laughed out loud and read no further when I read the line about "blatant partisanship": RBG isn't blatantly partisan?! Please.
4
@dbsmith, that seems to be the republican talking point today...RBG RBG....
2
Unfortunately, Supreme Court judges, unlike any other judges, have no one overseeing them to require them to recuse themselves from cases no matter what personal connections they may have. We have already witness this with the conservative judges. The only thing that could be done would be impeachment and good luck with getting a Senate vote for conviction.
So if he refused to recuse himself, who could do anything about it? If Mr. Tribe is relying on someone associated with Trump to do the right thing, I've got a bridge to Brooklyn I'd like to sell him
2
Kavanaugh has no interest in being fair or impartial. Kavanaugh is a hired hack hired to enact the biases required. It is kind of refreshing to finally have it so far out in the open, though one does get tired of the victimized white male routine. Montgomery Burns Kavanaugh.
1
As a fellow instructor at Harvard Law, should Mr. Tribe recuse himself from commenting on Judge Kavanaugh?
2
Of course not. Tribe has given and supported his opinion on the Times Op-Ed page. He is not charged with impartiality nor with helping to decide the fate of thousands in rendering judicial decisions on matters that trigger his partisanship.
2
@Patty
Yes , so why does no Democrat home in on at least one of Kavanaugh's actual opinions while on the court. Surely there must be at least one that would substantiate their tantrums on these pages.
No?
"...Judge Kavanaugh’s attacks on identifiable groups...render it inconceivable that he could ‘administer justice without respect to persons,’ as a Supreme Court justice must swear to do..." [op cit (Laurence Tribe)]
—
May I be permitted to mention Professor Tribe's name? Because I think he's right, absolutely right!
Indeed, after I witnessed what happened on Thursday, I turned to my wife in perplexity and said, "How did a man like Judge Kavanaugh ever get to be a judge in the first place?”
--
Professor Tribe’s remarks say about the same thing, but carry much more weight:
“…His intemperate personal attacks on members of the Senate Judiciary Committee…do more than simply display a strikingly injudicious temperament…” [op cit]
And then he lists all the specifics.
—
By now I’m sure you get my point:
In my opinion? Judge Kavanaugh is no judge at all.
He seems to have a long way to go, before he grows into that role.
And now that I know what he’s made of? I think he ought to be barred from sitting on any bench anywhere, in the role of a Presiding Magistrate.
—
Sorry, your Honor—but I think you succeeded last Thursday in digging your own judicial grave!
3
Professor Tribe, I fear that Judge Kavanaugh may by now has added your name to his list.
Laurence Tribe should have recused himself from writing this opinion piece. Of course his opinion is only binding upon the liberal Brookings Institution to which he is employed.
1
If it takes a Kavanaugh appointment to The Supreme Court to wipe the Republican Party from the face of the earth I'm for it. He can always be impeached. Then Gorsuch has to be recalled as illegitimate since that seat belongs to Merrick Garland.
1
His "what goes around comes around" amounts to a threat to get revenge. On liberals? The Clintons? Everyone who doesn't love him?
What a freaking mess. Not a single Republican senator has enough courage and enough patriotism to vote against Kavanaugh, which means our country is sinking into a deep, deep hole and we have no idea how and when we might extricate ourselves.
His snarling face and weepy eyes should be part of this discussion, too, because they indicate, one, that he is overly emotional (about this matter but perhaps many others, too) and far too angry to be a calm, reasonable judge trying to apply the law carefully. Kavanaugh exhibited the polar opposite of what the ideal judge is supposed to be: settled and firm while all about are losing their heads and arguing for extremes.
How have we gotten to such a low point in our national life? Politics, always difficult and subject to corruption, has become a corrupt game top to bottom, focused on winning at all costs. Kavanaugh fits right in.
We are direly in need of an active, successful third party that could act as a restraint on excessive partisanship. A third party would also make clear that debates are not just about being fair to "both sides" because there can be many sides in complex matters involving the future of the nation. Our democracy is becoming sclerotic, a dull battle between those who can shout the most ignorant insults.
Will no one stand up for the nation over the pale interests of their party?
8
Credible information is now emerging that Brett Kavanaugh & his team engaged in Witness Tampering in advance of his testimony & in the expectation of rapid, easy, smooth confirmation.
Against the background of evidence in plain sight of Don McGahn & perhaps LGraham or other conniving, dishonest GOP Senators attempting to limit the "supplementary" background check by the FBI, reducing it to something of highly dubious merit, Brett Kavanaugh's attempt to shape, limit or pre-empt testimony against him amounts to a breathtaking abuse of power, as well as clear subversion of due process. That is incompatible with any role at all as an officer of the court system.
Don McGahn is himself tainted by his association with Trump, who only entered the WH through a mighty boost, including massive infusions of cash, from known Russian mobsters: Semion Mogilevich, Sergei Mikhailov (who some experts say is actually Mogilevich's own boss), Oleg Deripaska & other Russian/Ukrainian plutocrats who made their money murdering, raping, plundering, abducting, producing & distributing child sexual abuse material... Don McGahn has given evidence against Trump, by his own admission, in order to protect his own hide. Yet he remains WH counsel (probably because he knows even more than he has revealed & thus has leverage over Trump).
And these are the people driving the Supreme Court process? Attempting to install one of their own kind in the person of BK?
Are you praying yet? Perhaps you should be.
3
No call for Ruth Bader Ginsburg, sitting on SC with a background of viciously anti-Trump statements, staunchly refusing to recuse herself from matters involving the Administration??
(eg: WaPo 6 Dec 2017)
Some consistency, please!
And: Jeff Guinn. That!
3
Utter nonsense, I don't see the radical liberal judges recusing themselves from anything. We have degenerated into a position where the left wing media believes that following the constitution is a disqualifying trait. More reason to confirm Judge Kavanaugh!!!!
2
I thought the republicans cared so much about perjury that they even impeached a president for it- lying about his personal sex life, which frankly, is much less our business then Kavanaugh's lies. And who was it that pushed for that impeachment? Oh right, Brett Kavanaugh.
4
Judge Kavanaugh has been a judge for many years,. What do his judgements say about his adherence to the Constitution and the rule of law? Why isn't this the most relevant standard rather than someone's political views - regardless of their supposed expertise?
Here’s an idea: step across the aisle, set aside Obama-bashing, pull this intemperate partisan and renominate Garland. He was a conservative, thoughtful judge in 2016. Odds are he still is.
6
Recusal is an after-the-fact band-aid. The simple fact is that, in the face of true adversity (something he did not encounter in earlier confirmation hearings), Judge Kavanaugh has, through his own words and gestures, made it abundantly clear that he lacks the necessary judicial temperament to sit on the high court.
A judge, ANY judge, state or federal, trial or appellate, is a public servant, whose constituency is the United States of America. We count on our judges to be fair, to be impartial and capable of separating personal desire or beliefs from public duty. As a federal judge myself, I can affirm that we all take the same oath of office, and are bound by the same rules of ethical behavior. None of my colleagues on the bench would ever behave in such a reprehensible fashion as Judge Kavanaugh did last week.
We cannot afford judges who view one party or the other as the sole source of good ideas or protectable rights. The Supreme Court was created as an apolitical check on the whims of the popularly-elected President and members of Congress. We don't have a third branch of government, we don't have checks and balances, when political partisans masquerading as judges, are allowed to occupy our courts.
I first learned about these concepts in detail from a treatise by Laurence Tribe, sitting on my bookshelf since 1975.
4
As a sitting trial judge, I very much agree with Professor Tribe's assessment of the nominee. to say that he did not demonstrate a judicial temperament, would be an understatement. This has been defended by Republican members of the Senate panel with arguments that his character was impugned and therefore he had a right to be intemperate.
Really?
I am from the South. We have a criminal offense here called disorderly conduct. It can involve the use of "fighting words" that would incite another to become disorderly. In my practice I defended a Black lady charged with using "fighting words" against a White police officer and who got arrested. Well, the law is that fighting words for you and me are not the same as "fighting words" directed to police officers. Why? Because they are trained and have a duty to deflate tense situations rather than escalate them.
The same is even more true of judges. We deal with adversarial situations, by definition. Things can get hot, but it is the duty of the judge, with judicial temperament to keep everyone's eye on the ball, to bring light, not heat to a dispute so that it can be resolved based on facts and law, not raw emotion.
Kavanaugh showed none of that. He brought the heat, and by so doing, blinded us all about the fact.
7
@Beiruti
i think that you as a judge should allow some leeway to mr. Kavanaugh's defense considering that:
1) he is not on court trial, but in a job interview.
2)he was accused, a married man with 2 daughters, of being a sexual offender..
The two things rarely, if ever, appear simultaneously, on press and media all around the country.
1
@Alex p
Quite true, Thursday before the Committee was not a trial, nor was Judge Kavanaugh presiding. As a judicial officer, it is altogether appropriate for the judge to pose questions to the lawyers who come before him. But in that setting, it was very in appropriate for him to respond to Globachar and Whitehouse as he did.
The charges alleged against him were of the worse nature, which is why his denials should have been more calm, factual and therefore credible. At the end of the day, he does not want his family or his children to hold any doubt but that the charges were baseless as alleged against him. Unfortunately, to have emoted as much as he did, detracted from the credibility of the denial.
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@Beiruti
Not the same thing, Your Honor. He was not there as a presiding judge in a case of angry woman assaulting police officer, he was there to give a statement to a room full Democrats intent on destroying his reputation, ergo, his life. Maybe we could walk around in each others shoes for a while.
This weak analysis is far beneath Professor Tribe’s record of meaningful work. It lacks any perspective. Judge Kavanaugh has participated in hundreds of cases without ANYONE raising generic recusal arguments. The only differences between Kavanaugh’s confirmation and previous ones like Roberts or Kagan are the removal of the filibuster rule and the final decay of media sources into the activist political fray, a mad dash for clicks and ad revenues. Given that future confirmations will now all be pushed through this new hyper-politicized regime, Tribe’s argument reduces to “all new appointments that are presented to the activist public through this hyper-political process must recuse themselves from all cases.” Of course, it is possible that Professor Tribe has himself fallen prey to partisanship so that his real argument is that “all new CONSERVATIVE appointments must revise themselves from all cases.” I’d give Tribe a D on this essay.
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Um, no, the media and the filibuster are not the only change it’s not even clear the media are so very different or influential.
The difference in this hearing was Kavanaugh’s last appearance. A man who refused to offer any insight into his judicial philosophy, who would only say he’s a pro-law judge, whatever that is, felt free and entitled to express his political views and tell us what goes around comes around. First, he can’t say definitely if Roe should stand. Then, he says definitely that Democrats and liberals should expect repercussions for questioning his fitness and history. Even Thomas, with his uppity high-tech lynching, didn’t insult a whole party or the 3/4 of the country that disagree with his reactionary views.
Kavanaugh is a partisan actor. He’s a political operative from the Bush White House and the Whitewater witch hunt. How about we appoint someone whose not a Catholic, not from the Ivy League, and never worked in the White House? There are literally millions who got that description. At least one would pass muster with the federalist society, too.
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During the Judiciary Committee hearings the nominees for the Supreme Court are careful not to answer questions which would reveal their positions on cases which might come before them on the Court.Kavanaugh has blown through this judicial restraint by loudly blasting liberals, conspiracies and the Clintons while showing a deep disrespect for the Democrats who were questioning him.He has not just tipped his hand, he has laid out all of his prejudices for all to see.Laurence Tribe has wisely explained the consequences.
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Did Kagan recuse herself when Obamacare was under review? No, even though she helped write the law,
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Two points. First, we all know that Judge Kavenaugb, given his behavior at his hearings, will not recuse himself from a single case before SCOTUS. He will revel in his ability to inflict pain and, if possible, injustice on his self-described enemies. Second, the whole issue is pretty much irrelevant, as the theft of the Obama-Garland seat has already established SCOTUS as a partisan, illegitimate entity. For approximately half the country, nothing SCOTUS does will have the weight of legitimate law. For the other half that rejoices in the theft, and the elevation of the proven serial liar, Kavenaugb, they have always embraced the idea that Might makes right. They have always held the concept of a democratic republic in disdain.
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Direct, unambiguous, and high decibel threats of retaliation and revenge towards half our country's population. Do we really need the FBI to shed light on anything more?
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If the GOP wishes to retain any semblance of integrity they must not allow such a flawed jurist to become a member of The Court. However if the goal is to destroy faith in an impartial judicial system then the goal is in sight.
It is amusing to many of your non-liberal readers, Mr. Tribe, that the concerns you have about Justice Kavanaugh, are the same ones your politically opposite Justices caused them. And continue to do so.
Seems to this reader that this body of Justices should be above party profiling and focused more on keeping within the confines of our Constitution.
Best for all of us that they leave the legislation, such as it is, to the legislators and the decisions to the executor. That's how it's supposed to work.
We don't need another loopy liberal telling us blatantly how, in their imperfect world, it oughta be, no matter his Harvard shawl.
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Leave legislating to legislators and enforcement to the executive? Do you seriously think that’s the conservative agenda or the observed judgement of this court?
Citizens United, to name just one in a series of rulings, overturned legislation on the novel theory that money is speech. Apparently, the legislature cannot regulate elections, however imperfectly.
This year, the money-is-speech theory overturned decades of law in dozens of states supporting union dues and bargaining rights. Again, there are any number of other mechanisms to underwrite public unions, but simple dues are impermissible.
The court expressly overturned preclearance in the Voting Rights Act because, in its unelected judgement, racism was a spent force. That nullified a law only recently renewed by a Republican congress.
On Medicaid expansion, Roberts “reasoned” that, although congress makes laws and created Medicaid, and could abolish it, and could replace it with anything else, it was impermissible to change it just so.
“Liberal activist judges” has been a right-wing trope for decades. You can believe it, or your lying eyes. But not both.
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This is exactly the game the Dems are playing. Senator Feynstein could have made the allegations known earlier, and given the President an opportunity to appoint someone else. Now if he is confirmned, as will most likely happen, the Dems have an ENEMY rather than someone mearly opposed to their ideology on the high court.
Nice Work Senate Democrats.
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Even if your facts were right, and they’re not, your conclusion is wrong.
It’s not a game, and Feinstein isn’t playing it. She tried to honor Dr Ford’s anonymity. Only once her name had leaked, and with Ford’s permission did she go public. If you think the Democratic Party orchestrated that, you’re giving them too much credit for organization. Seriously.
Be that as if may, Kavanaugh has evinced enough bias and partisanship to disqualify him from the Court. It’s not the court’s job to enact a Republican agenda, or Kavanaugh’s to protect Trump. And it’s certainly not for Kavanaugh to exact revenge on Democrats and liberals, as he sees them, for anything, much less just questioning his fitness for this post.
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Kavanaugh turned from being a nominee into a 12th Republican committee member. His naked display of who he is should disqualify him. Who you are essentially formed before the age 21. He is combative at the hearings as he was in college days with bar fights. These fundamental characteristics will never ever change. So, it doesn’t matter how many years ago, they do matter now. No matter how accomplished a person is, he or she do not deserve a free pass.
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How does this thinking apply to Ruth Bader Ginsburg in the aftermath of her anti Trump tirade (delivered while she was on the Court)?
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When I heard his outburst against the Democrats at the judicial Committee hearing, I thought Oh Oh--can this man really be impartial and objective when a case involves anyone he is so vehemently biased against? I did not think so and now Prof. Tribe seems to opine similarly in the article.
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The Senate confirmation is sound and fury, signifying nothing. The die has been cast. The Rubicon has been crossed. It's a done deal. Even if they had proof that Kavanaugh lied to congress, he'd be confirmed. We're in for thirty years of backward evolution toward a second Dark Age. However, in the near future, the human mind will be programmed in the computer based on a "survival" algorithm, and we will have irrefutable proof of how we trick this survival program in the human mind with our ridiculous beliefs about what exactly is supposed to survive - creating minds programmed de facto for our destruction. At that point we can begin the long trek back to reason and sanity. See RevolutionOfReason.com
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This article reminds me of the very popular book The Peter Principle. If Kavanaugh were to be confirmed to the Supreme Court he will be promoted to his level of incompetence and be rendered fairly useless, if not destructive in that position. In fact, in his current position on the federal court, he may have already attained that level of incompetence, so this promotion would be a double-down on that tendency. The Peter Principle seems to be alive and well throughout our current administration and Congress. Too bad for us.
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Umm great point. However I don’t think this guy with his arrogance and anger would ever recuse himself. He is very dangerous in this manner and congress should stop with the political games and realize this is bigger then party. Surly there is someone BOTH parties could agree on. God help us if he get on the already politically motivated court.
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"But should he be confirmed, it is impossible to see how Judge Kavanaugh could discharge his responsibilities as an associate justice of the Supreme Court."
Great article, and of course any judge with integrity would agree with you. I mean even Lindsey Graham would have to agree with you.
But wait!
Isn't he the guy trying to schedule a vote even before the FBI report is is?
The Republican approach to SCOTOS, to stack it with political operatives, stinketh.
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Why are they playing around with this guy. Cut the line and let this go. After all is said how can we, the people of the USA trust the system. Mitch McConnell started this mess, let him clean it up and out.
Who do we, the people trust?
Would Judge K be in anyone's vest pocket?
If Republicans hadn't created such a total tribal toxic environment, Brett Kavanaugh's opening statement alone should have been enough to disqualify him, totally. His promise to "get back" at people who opposed him, his crack-pot conspiracy fantasies belong in "InfoWars", not the Supreme Court of the United States.
It seems like decades ago that freshman Senator Kennedy was asking a Trump federal court nominee if he was familiar with basic, 1L legal terms, and, embarrassingly, the candidate didn't and eventually asked to have his name withdrawn.
Where was THAT Senator Kennedy last week, when Judge Kavanaugh was demonstrating his totally inappropriate behavior for the highest court in the land? I shocked a Conservative friend the other day when I contrasted Judge Kavanaugh with the self-control and clear-thinking of the other Trump appointee, Justice Gorsuch. To Trump's fury, Gorsuch sided with the 4 liberals on a case about deporting those accused of crimes as "too vague" and based it on, of all things, Scalia's previous decision!
McConnell warned Trump that this was the worst choice he could make, but this was the ONLY candidate that Trump could count on 100% to "protect" him from any and all criminal investigations.
It's time for every Democrat, and the few Republicans with doubts to deny advancing this biased, angry, inappropriate candidate to the Supreme Court.
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If Kav does not make it to the Supreme Court, Trump can appoint him Secretary of Defense.
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"blatant partisanship and personal animosity toward liberals"
That's exactly why Republicans want Kavanaugh so badly, as opposed to anyone else in the whole stable full of qualified conservatives that the Federalist Society has on tap.
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"Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
Answer: HE CAN"T!
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At this point, if BK cared about the country, SCOTUS, his family, or himself, he'd simply withdraw his nomination instead of pressing forward. The WH can try to limit the scope of the FBI investigation, and Mitch McConnell can ram through the vote (in his usual abuse of power fashion), BUT journalists will continue to dig for the truth. There's an awful lot of smoke out there, so why take a chance when there are plenty of other qualified conservative jurists.
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The great one has spoken, haha. As a deplorable, here are some observations on SCOTUS: yes, they’re all political; no, recusals are few and far between; likely all would fight back when unjustly and publicly accused; likely each has a history and secrets. So, what’s new here, except legal balderdash?
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Hillary Clinton never called you a deplorable. Basket of deplorables, she said, and went on to enumerate the deplorable *characteristics* she meant: racism, sexism, xenophobia, etc.
If you want to sign up for some deplorable political views, be my guest. Half the country is below average. But don’t wear “deplorable” like a badge of honor.
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Brett Kavanaugh in all of his hatefulness is a perfect representative of what the Trump Era is all about. The Republican Senators know this, which explains their fierce love for a man who grossly insulted their colleagues and their institution during his testimony.
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For the reasons Professor Tribe states, I've wondered from the beginning how on earth Kavanaugh could possibly be expected to rule on any case before the Supreme Court that arises out of the FBI investigation - at the very least. It is so very clear to me that recusal would be called for. Not that it would be the path he would choose. And not that the GOP would care. So, if it takes allegations of sexual misconduct and spittle spewed at Senate Democrats to do the trick and keep him off the bench, then so be it. Really, whatever it takes. God help us.
Kavanaughs lack of judicial restraint and partisan bias are why he was nominated in the first place, remember?
ACLU needs to prepare a case for impeachment even if he does not make it to the Supremes. This guy should never have been confirmed as a judge he lacks self-control and is a partisan hack. His old boss Ken Starr had to resign from Baylor in disgrace The company you keep tells a lot about a person.
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As pointed out, Kavanaugh’s “intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a ‘calculated and orchestrated political hit’ “ indicate a man blinded by ideology and by personal ambition. Not the type of blindness symbolized by the blindfold on Lady Justice, who has been holding the scales of justice blindfolded since the 16th century.
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The issue regarding Kavanaugh is whether as a nominee and potential Supreme Court justice he is beyond moral approach. This is far more than a moral purity retrospective circa 1985- but also a question regarding the truthfulness and moral gravitas of how he has handled accusations of past illegal misconduct.
Issues regarding his views on Executive power and political partisanship- unless as there have been indications- they border on clinical paranoia- are unfortunately not considered significant by the majority of Republicans. That this further weakens the bonds of society- and combined with authoritarian rule at the Executive may ultimately destroy the society- appears to be an inconvenient truth that most have chosen to ignore.
The three Republican deciders know full well what is at stake. They also know that a conservative justice is assured on the Supreme Court. What that must show is the moral fiber to do what is right and help restore faith in a faltering democracy.
Prof Tribe's article "All the Ways a Justice Kavanaugh Would Have to Recuse Himself" fails to mention how the "would have" portion is enforced. Is there a mechanism by which his fellow Justices could, even if they wanted to, tell him to step aside?
Good question, Professor Tribe. Of course, Ruth Bader Ginsberg has expressed, and continues to express, even more blatant partisanship and personal animosity against conservatives, so, based on the Professor's standard, both Ginsberg and Kavanaugh would have to recuse themselves, often on the same cases.
I can live with a 4 to 3 conservative majority.
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Can the present members of the supreme court request the senate judiciary committee to consider a different candidate? I mean surely they know Kavanaugh will further erode the constitution of the supreme court and render pitiful, the public view of justice. Why should the present members be impotent with respect to an incoming member?
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Prof. Tribe raises an interesting point as to Kavanuagh's conservative views, but what he fails to reference in any manner is Kavanuagh's views on the constitution. Is Kavanuagh a true Federalist in his views on state rights? As a professor of constructional law, at Harvard Law, I would have been more interested in your views on how Kavanuagh would potentially rule on states and individual rights then the liberal noise you wrote.
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@George Do not confuse "conservative views" with "intemperate personal attacks" and "partisan tirades." Tribe is not concerned about the judges conservative l views, constitutional or otherwise, but his "injudicious temperament." The distinction is not even subtle. It is quite likely that Trump has picked someone much like himself, excepting the academic accomplishments required of any Supreme Court judge. Whatever you think of Trump's political views, you should not want someone on the Court with Trump's temperament.
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@George The reason he didn't mention those items is that they weren't the subject of the essay.
You will have to research more about his views on the roles of federal government.
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@George Being concerned about partisanship in a SCOTUS justice is now "liberal noise." You know what? In Trump's and McConnell's America, that somehow actually makes sense.
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Judicially the Supreme Court is the highest authority in the land, a fact obvious but needing constant repetition. If the court is infected by partisan vindictiveness where are we to go for redress. Its demise as an effective mediator will destroy any trust in government, perhaps what the GOP has craved all along.
But the American people deserve better than a Justice Kavanaugh who if confirmed will be one more nail in the coffin of our democracy. The tawdriness of this confirmation process may appeal to many viewers from the outside, but this is serious business. Do we care enough to fight for our democracy?
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He will simply not recuse himself at all. The Supreme Court is now a legislature, not a court, and he is there in accordance with the procedures defined in the Constitution. He will, therefore, vote for what he believes, just like all the other 'justices'.
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If the non-presidential party is intent on dredging up dirt from any and all aspects of a nominee's personal life, no matter how old, to defeat presidential appointments, we should not be surprised that the nominees become more partisan and bitter in their animosity to that party. Who in their right mind would think of Justice's Kagan or Sottomayer as "non-partisan"? Not based on their voting records or opinions. Since Kennedy trashed Bork only partisans can and are appointed to the Supreme Court. We cannot close that Pandora's box.
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Professor Tribe's critical reliance on the Caperton and Williams-Yulee cases is telling about the weakness of this argument. In Capterton, a litigant before the West Virginia Supreme Court paid $3 million to get Justice Benjamin elected, which then quickly resulted in Caperton winning its $50 million case on a 3-2 vote, with Benjamin being the deciding vote. In the Williams-Yulee case out of Florida, it was a case of a judge affirmatively asking for money to get elected. Held, not cool. Kavanaugh may be a lout, or not, but either way, he has not been alleged to have asked for and/or taken money to gain his role in the judicial process. Recusal problems seem highly remote under the present state of recusal law.
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It's easy to see how he could discharge the responsibilities. Supreme Court justices decide their own need to recuse. He just will decide not to recuse and continue to participate.
Professor Tribe points to codes of ethics that say otherwise, but who is going to enforce those? The Harvard Law faculty? It's not a mere technical problem--its a feature of the system.
Judge morphing into Justice Kavanaugh betrays a decaying appellate bench being eroded by partisan ideologues who are highly skilled at dressing up their political allegiances in the language of law.
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@Michael
Thank you for putting it so clearly. Recusal is done on the honor system. It won't work if the senate allows a partisan justice to join the court.
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@JEA Aren't they all partisan to some extent? The fact that their votes are predictable given their political leanings, I don't see how Kavanaugh's confirmation would change anything to the current dynamic (other than that it would add a conservative vote)
@Michael - You said 'highly skilled at dressing up their political allegiances".
Sounds like me should just move right along . . .
Unfortunately recusal is a personal choice of judges. Yes it can be a basis for appeal, but to whom do you appeal a SCOTUS decision?
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@Jerry in NH: Congress. Vote Democrat.
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Simple. Apoliticalise the nomination and confirmation processes, leaving them to representatives of the multitudinous world-class jurists in top law schools and the American Bar Association and giving an advisory role to major special interest groups. Make confirmation conditional on approval of nominee by both Law faculty and Bar Association. Limit initial appointment to 10 years, with 5 year renewal possible on the basic of legal quality of opinions written by Supreme Court justices. Continue to politicalise the processes, giving life tenure, and have democracy wither away.
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We need a new way to determine who represents us in the White House and in Congress. Something that lets us vote from a list of accredited candidates. These positions should be term limited just like the presidency, but with a pension so they are not spending half their time in Washington trying to get re-elected. Maybe at the end of their service we get to vote on the amount of pension based on an objective assessment of their performance, if 80% approve, you get 80% of your salary. That way there is still an incentive to answer to ones constituency and do a good job.
Anyway, I’m in agreement, Congress has lost the right to decide who should be on the court, these hearings show it as nothing but partisan and that taints the court right out the gate. The party system is showing itself to be problematic, I’d like to think for all branches, our way to salvation is to rely more on accreditation of candidates in one form or another.
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@slogan
There should be background checks on every candidate for elected or appointed office. Pure and simple.
@george barnes These are great ideas for a better way to select SCOTUS nominees (and all Federal jusgeships). The sad reality is that as long as the Republicans are in office, these ideas will never come to fruition-they want to hold all their power they can. Would the Democrats be amenable to these- I don't know but I believe they would be more likely to be.
I have to say something in defense of the Supreme Court. Everyone is assuming that if Kavanagh is elevated to the Court, every member will remain in the same ideological position and there will forever be 5-4 decisions re: Roe vs. Wade, voting rights, etc etc. However does John Roberts want HIS Court to be seen by historians as a political Court? Not one who calls balls and strikes but follows, in its decisions, the ideological bent of the President who appointed her/him. Could Roberts become the swing vote as he was in the ACA case? If Kavanagh gets approved and having displayed such a partisan animus toward the left, will Roberts see the damage that could befall his Court, if it is seen as making political decisions and not judicial ones? I may be completely wrong but I think it’s at least a possibility that, in order to save the reputation of what historians will call the Roberts Court, it could happen.
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Um, I am loathe to argue with Mr. Tribe. However, it is well documented that Justice Scalia, despite being asked to recuse himself, sat on the SCOTUS to hear cases involving individuals or companies from whom he'd accepted gifts of significant value. My understanding is that there is no way to force a Supreme Court justice to recuse himself/herself.
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@MHW Well, that's kind of the point of the article. If Kavanaugh won't recuse himself from the broad range of cases that he should, ethically (I mean, "what goes around comes around"?), then the integrity of the Supreme Court will be tarnished, perhaps irreparably, and the rule of law the US so prides itself on demanding will become a laughingstock here.
I understand that a whole lot of conservatives wouldn't mind that, as long as whatever "law" that was left intact was in their ideological favor, but that's incredibly dangerous in a country that also loves a broadly interpreted Second Amendment. When people begin to despair that even a case taken up to the Supreme Court won't necessarily get a fair hearing, that's when they start to contemplate utter lawlessness, or revolution.
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@MHW
Oh great! Crime (bribery) does pay.
@MHW Perhaps you are right. That is why Kavanaugh has no right being on the court. He is already too conflicted.
That was I was saying for days now. If I ever have any kind of a case presented in front the supreme court, i refuse to answer his questions or acknowledge him in any other way, but telling him to recuse himself.
Any case involving women, or Democrats, will need to be decided by 8 justices only.
Attorneys need to grow a spine, ask for his recusal case after case, beginning with his first day on the bench.
5
Professor Tribe has identified several problems. Apart from the accusations by Christine Blasey Ford and others, there are three unrelated aspects of the Kavanaugh problem.
First, Judge Kavanaugh has very extreme notions about the power of a president to violate the law with impunity. Such radicalism puts him in conflict in any case – including impeachment – where conduct of a president is an issue.
Second, during his recent confirmation hearing, Judge Kavanaugh may have lied about his political activities in the Bush administration and while working for special counsel Kenneth Starr. More than twelve years ago, Judge Kavanaugh also probably lied during confirmation.
Third, the nation saw the shocking injudicious temperament of Brett Kavanaugh on display in his latest hearing and heard his deeply held political biases. Kavanaugh's nomination for the Supreme Court should be rejected for that reason alone.
How did all of this come to pass?
When you select candidates from a list prepared by the Federalist Society, the most shocking ultra-conservative lawyers and jurists may be the most popular.
When you have a President Donald Trump, who is combative about judges and believes they can be bent to his will, you get such a nominee.
When you have a Republican Majority Leader like Mitch McConnell, who is cynical about pushing through judges who are the most partisan for the sheer joy of defeating Democrats in the Senate, you must deal with such a nominee.
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@sdw Accept that Judge Kavanaugh is relatively MODERATE.
Thanks for a succinct analysis. I would only add one thing: McConnell and his cronies don't care a whit about any of this. Neither does Trump, of course.
It is going to come down to whether Flake, Collins, Murkowski, and Corker care more about the integrity of SCOTUS than the narrow minded partisan goals of their colleagues.
1
@sdw The Constitution has never had anything about SCOTUS being able to do anything to the President... it has no power beyond a judicial decision. This is why the Constitution puts the power of Impeachment with Congress. That power is quite defined and powerful, and allows elected representatives of Congress to impeach and potentially remove a rouge President.
Please learn the Constitution and its basis in English Common Law before making your partisan scribes of ignorance.
This is worse than what happened when Thomas was accused. It's the second time around and just as many felt that Thomas wasn't fit after what came to light, so do many feel this way now. And again, it looks like the male dominated senate isn't interested in what makes someone a good Supreme Court Justice. Thomas was given the worst rating possible by the ABA. The result: their recommendations were not listened because they didn't do what the POTUS wanted.
Kavanaugh is academically qualified. He's sat on a court for years. But his performance at the first part of the hearings was most unsatisfactory while his later showing was, if anything, disastrous. If any one of us ever behaved that way on the job, during an interview, or in public, we would have been shamed, ridiculed, and never invited back. No one would have defended us unless we were mentally ill, physically ill, or dying. If Kavanaugh had been a woman he would have been disparaged from here to the ends of the continent.
Just because he was nominated doesn't mean he's automatically qualified. There's a reason there are confirmation hearings and this is one of them. We all understand teens drinking. We even understand doing stupid things as a teen. But assaulting another person, having a reputation for being a mean drunk and then acting exactly like that in front the senate and the public: no.
Kavanaugh is unfit to be on the Supreme Court or to continue serving as a judge. It's his own fault now.
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@hen3ry- please spare us. Are you seriously making the argument that Kavanaugh should not be confirmed because he raised his voice at the hearing and lashed out at those who elevate 36 year old uncorroborated allegations to statements of undisputed fact.
@hen3ry
"Kavanaugh is academically qualified."
Why? Because he has a Yale Law Degree?
Do they have special fairy dust that they sprinkle on all of their students that automatically qualifies them to be Supreme Court Justices? Do they teach "different" law there than they do at Berkeley?
When people say he is academically "qualified", what they are really saying is that since he is a "Yale Law" graduate, his credentials are "not to be questioned".
I don't buy it. I saw nothing in those two public performances that would compel me to say he was qualified to do anything except maybe coach high school football.
@hen3ry
"Kavanaugh is unfit to be on the Supreme Court or to continue serving as a judge. It's his own fault now."
Excellent point.
I wander if Professor Tribe and others of similar stature could urge the ABA to convene an emergency meeting this week to reconsider the rating issue.
2
Many of us, even those who would prefer not having Kavanaugh on the Supreme Court, nevertheless felt deeply sorry for him and his family during the unfolding of a human tragedy before our eyes on national television. That notwithstanding, it was deeply unnerving to witness such a TOTAL lack of judicial restraint under trying circumstances. His emotional instability and brutal tongue-lashing that issued forth from him should make anyone think long and hard about having him on the Supreme Court regardless of one's party affiliations.
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@Dot Sorry for his family, sure. For Kavanaugh, not so much. Who is to blame for him being dragged through the mud? Increasingly it seems like he is. It seems pretty clear that he has told a lot of lies in his testimony. As Sam Spade said: "Maybe some of them are small and unimportant, but look at the number of them." While the Blasey-Ford allegation is probably unprovable, the multiplying statements by other classmates suggest that he was at least assault-adjacent. And there was other behavior that was less than exemplary. He needs to own it and stop trying to re-invent himself as a saint and victim.
8
Don’t feel sorry for Kavanaugh. He’s the one who got himself into this mess, and drug his family with him. He could have withdrawn as soon as Blasey Ford’s allegation came out—and there would have been no hearing.
5
@Dot
I don't feel sorry for him. This should be the time he re-evaluates his life and work and then decides the best path for him and his family going forward.
He should quit public law and go private. Work at a big law firm or a corporation. He needs to make more money and would be happier. So would more than half the country.
May be his wife will help him make that decision.
1
I couldn't say it any better than DOT from New York, so one more time here:
Many of us, even those who would prefer not having Kavanaugh on the Supreme Court, nevertheless felt deeply sorry for him and his family during the unfolding of a human tragedy before our eyes on national television. That notwithstanding, it was deeply unnerving to witness such a TOTAL lack of judicial restraint under trying circumstances. His emotional instability and brutal tongue-lashing that issued forth from him should make anyone think long and hard about having him on the Supreme Court regardless of one's party affiliations.
10
Judge Kavanaugh's aim is impeccable; he has managed to inflict fatal wounds in his own feet. I have just sent links to this article to both John Cornyn and Ted Cruz, my (unfortunately) Senators. I expect no response from either, but if by some near-miracle I do receive any communication, I'm willing to bet it will a generic response unrelated to my message.
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@Glen
" I expect no response from either, but if by some near-miracle I do receive any communication, I'm willing to bet it will a generic response unrelated to my message."
What exactly do you want to hear in response to this void of substance article?
That justices Kagan, Ginsburg, and Sotomayor must recuse themselves from all cases having to do with women equality? That they and justice Thomas must be recused from cases having to do with Aff Action? That the whole SCOTUS must be recused from any case about elderly?
How far into the woods of absurdity are liberals willing to take our nation? Until it descends into chaos, degenerating into a 3rd world country?
1
@Glen: That's Cornyn and Cruz for you. The guys who never met a boilerplate response they didn't like.
4
Spot on!
1
I may be mistaken, but I don't think Supreme Court justices are "required" by anything or anyone to recuse themselves when there's a conflict of interest. Any such requirement is purely theoretical. That has been, and with Kavanaugh will continue to be, the chief reason we don't trust the Court any more.
8
OK let me get this straight. If for argument's sake we assume that Kavanaugh is innocent of any and all charges of sexual misconduct that have been made against him, he is now disqualified from serving on the Supreme Court because in response to the unified Democratic opposition to his nomination, which has sought to destroy his reputation, his career and his family through (see above assumption) politically motivated lies and exaggerations, he railed against them emotionally and angrily at last Thursday's Senate Judiciary Committee hearing. Professor Tribe hews to an outrageous position. If a unified group tries to destroy a public figure in public through lies, is that person compelled to respond politely and with equanimity? If Kavanaugh were not furious with the Democrats (see above assumption), then he wouldn't be a normal human being. This is all about whether Kavanaugh was and still is at risk of being a sexual predator and not about his indignation if that allegation cannot somehow be independently corroborated by those bent on his personal destruction.
53
Actually, there were other concerns. For every person in the United States, Kavanaugh’s refusal to disclose how he earned his taxpayer-supported living while working for Bush, for one, but, goodness, the majority under McConnell and Grassley could and did pull out all the stops to slam this appointment through. They could have ordered the normal FBI investigation of allegations before now, but no one wanted any brakes on the express train to slam through this Supreme Court seat. Kavanaugh still has time to be confirmed. Considering how easily Gorsuch got in, and the disgraceful behavior of congress in re Garland, I think the radical alt right is doing just fine.
9
@TommyStaff I think what you are missing is that he has thrown his hat in the ring in an effort to ascend to the nation's highest court. The Senate questioning was quite tame by any trial court standard. As an attorney and judge, Kavanaugh knew that, and knew what kind of questions he would be asked. He also knew he was bound to respectfully answer the questions posed. Instead, he tried to dodge questions, turned them back on the questioner, quite obviously lied about his binge drinking, and attacked entire political groups. That is far from the goal of neutral and impartial pursuit of the truth, which are key attributes for the unique lifetime position he desperately seeks. He behaved badly by the standards of the legal profession, let alone that of the judiciary. There are few decisions where his partisan statements will not be thought about if he is confirmed.
6
@TommyStaff
He is a judge! His personal life should not intrude on his professional life and his sworn duty to our Constitutionand the upholding of our nations laws and governance. If he cannot fairly consider all cases that come before the Supreme Court because of personal grievances or conceived sleights then he doesn't belong on a court that will decide the fates of millions of people. The scales of Justice are supposed to be blind, not owned by one political ideology or another and the Supreme Court is not a body to be used to mete out revenge.
18
Dream on. A Justice Kavanaugh is being confirmed by people who want to win at any cost to the institutions of government. He will never recuse himself if a case allows him to revenge himself on a perceived enemy or help Trump.
12
Supreme court justices have always been political. And sometimes worse than just political. Chief Justice Rhenquist was said to have suppressed minority votes in Arizona prior to his appointment by Nixon as part of Operational Eagle Eye. Hugo Black was allegedly an actual member of the Ku Klux Klan until 1925 and later appointed by FDR.
We've lived with political appointees with less than sterling characters.
I cannot, however, recall a prior nominee who has so blatantly displayed contempt for sitting senators of the opposite party or promised before the Senate to punish those whose views don't align with his.
Kavanaugh has openly telegraphed that he cannot be fair or impartial. That should disqualify him from being confirmed.
465
@KKW
Hugo Black repudiated his membership in the Klan. The much better example of his political nature is that he was a sitting U.S. Senator when FDR appointed him to the Court. There are similar examples: James Byrnes was also a Senator. Earl Warren was a Governor. William Howard Taft, of course, was a former President. The issue is not whether a nominee was or is a politician (or "operative"), but whether he or she is intellectually and morally qualified, and whether the nominee's judicial philosophy is within acceptable boundaries. Harriet Miers was not intellectually qualified. Robert Bork's philosophy was too extreme. Brett Kavanaugh, a repeated perjurer, is morally unfit to serve on any court.
2
@KKW - Kavanaugh has not just telegraphed his unwillingness to be fair and impartial, he has threatened under oath that the people he sees as conspiring against him (which seem to include at least all of the Democrats and women in the country) had better look out over the next few decades as he gets his "revenge."
2
@KKW contrary to your partisan scribe, Kavanaugh has decades of being fair and impartial rulings. You just wanna focus on the rulings you don't like (a small percentage) as the trend. This is both a partisan and scientifically invalid position.
Being naive on the subject, is there any precedent from Clarence Thomas on these issues? Has he ever had to recuse himself from any cases on this basis?
Another question, are there actually as situations where Kavanaugh would be "required" to recuse? How does that work? Is it up to the judges to recuse themselves when it comes to questionable conflicts? If that's the case, good luck.
As for institutional integrity, I guess this is an unintended consequence of electing a wild card for President. There has been so much overblown coverage of the destruction of "democratic institutions" under Trump, but this one actually seems important. I'd expect Kananaugh to be confirmed, and when he is, there will be two justices tainted by sexual misconduct, one of which who practically threatened the Left that retribution is coming. What happens when the US can no longer have faith in the courts either?
138
@S.G.
the first power grab of authoritarianism is to eviscerate the judiciary. McConnell's year long power play re Judge Garland was a major step undermining the independence of the Court. A decent example of recusal was Justice Kagan's.
2
Thank you, SG! You are astute to notice these repercussions! I have come to believe that the present day "Republicans" want to tear this country apart. They truly believe that they and theirs will thrive in a New American Century of wide economic disparities and hardships for other Americans. Our Great Experiment is over; autocracy -- kangaroo courts and all -- has arrived. Roll up the windows of the limo, blast the AC and enjoy the cruise on the River Styx.
1
@S.G. everybody talks about Thomas and Kavanaugh recusals without bothering to examine other Justices on the SCOTUS with issues of recusal. For example, Alana Kagan, whom was a Obama administration lawyer assisting in crafting the ACA, then appointed to SCOTUS to defend the exact same law, the ACA, that she helped craft.
Probably should clean up your own house before throwing mud at others'.
So every decision that Kavanaugh might make on the Supreme Court, should he be appointed, would come with an asterisk. The fact is that the same was said of Clarence Thomas and he is still on the bench. This potential asterisk is and will be meaningless to the millions affected by decisions decided by a deeply conservative majority - one that has been installed and reflect a minority of the American public.
260
@AKJ "Republican" and "conservative" are not of identical meaning. You can see that by the things the current GOP has done that are anti-conservative ideologically, like the fiscal irresponsibility of the only two major bills passed under Trump: the tax cut and the budget. Just to name two.
Thomas is deeply conservative. I haven't seen evidence that he favors the Republican Party in any of his decisions I know about. He never threatened revenge on those who he deemed conspiratorial enemies.
Kavanaugh is conservative AND Republican. The idea that a sitting president can't even be investigated is NOT a conservative one. He said "what goes around comes around", referring to the litany of those attacking him including liberals, Democrats, and maybe even the Tooth Fairy. Hillary Clinton was ridiculed for invoking a "vast, right-wing conspiracy" against her and her husband. How was Kavanaugh's tirade any different? Ane he's a circuit court judge!
That's why the comparison to Thomas doesn't hold water. That's why it's not the point if Kavanaugh, like Thomas, could be appointed and remain on the bench despite everything. When the populace comes to believe even the Supreme Court of the US is corrupt, the rule of law in any manner other than might makes right will be done in America.
@AKJ You forgot to mention the asterisk that should go beside Neil Gorsuch's name, given that his seat on the Court should have been occupied by Merrick Garland.
Can someone who knows Susan Collins please make sure that this essay is put in front of her, and see that she reads it? I am a constituent of hers, and given the reports of her staff not tallying or reporting the calls she received, I have no confidence that if a link is emailed to her office that the article will get to her. She needs to think about the prospect of what this man would do to the Supreme Court, not whether the FBI "proves beyond a reasonable doubt" that he sexually assaulted Dr. Christine B. Ford. She may be afraid of what Mitch McConnell will do to her, but she should be more concerned about both how history will view her and what the voters of Maine might do to her when she is next up for re-election, based on her vote in this situation.
325
@Zora Margolis
She's a Republican first, last and always. She will vote for Kavanaugh because she believed him when he implied that Roe v. Wade was settled law. She will let the senator from Alaska vote against confirmation, allowing Vice President Pence to break a 50-50 tie . Everybody "wins", Collins can show she is loyal to the Republican leadership, the Alaska person can vote her conscience, and Kavanaugh will be confirmed.
@Zora Margolis call her and express and register your opinion in her office as one of her constituents. You can actually do this with any Senator in any state. Just tell them where you are from.
@Zora Margolis
Sen Collins frequently makes a fuss about bad things R-kons plan to do in the Senate, but she always caves, e.,g., Betsy DeVos.
We hope, but cannot expect her to do the right thing---does she just want to be the center of attention in a group of bad-acting senators?
Recall how another R-kon "swing vote" woman, Justice O'Connor, gave us W and his war in Bush v. Gore.
Professor Tribe, thank you for your expert, concise, and articulate summary of but the latest crisis confronting our nation since Trump's election. But you know far better than I that Kavanaugh's clearly deep-seated hatred of liberals, especially the Clintons, coupled with his on-the-record statements that indicate he would opine that Trump is above the law and also vote to overturn Roe, are the very reasons the GOP is going to ram him onto the Supreme Court. To call this a travesty of justice is an understatement.
29
I have profound respect and admiration for Prof. Tribe, and I agree fully with his wise analysis but I take no comfort from his conclusion that "It is up to the president and the Senate to decide whether this situation makes him unacceptable as a nominee."
After Merrick Garland I have no confidence that the Republican Senate majority can be trusted to do the right thing. As for our president, I have absolute confidence that he will totally ignore the interests of every party (SCOTUS, the constitution, the people) and act exclusively in his own personal best interests which, for reasons outlined in the article, favor having Kavanaugh on the court.
618
As a member of the legal profession I am heartened that distinguished legal scholars like Prof Tribe are willing to place their own professional reputations on the line in order to address the multi-level problems that exist with this nominee.
It goes without saying that the Republicans on the committee have turned the vetting process into a calamity for all concerned.
And we are now faced with the harsh reality of McConnell continuing to push the nomination through to a vote without allowing adequate time to investigate Kavanaugh's background. The action of the Republican leadership constitutes contempt of congress and every single member of the senate should refuse to vote until all witnesses are interviewed and all information is vetted.
7
@D. Ben Moshe Merrick Garland was appointed during Obama's last year before an election. The Biden Rule went into effect, and therefore his nomination was delayed to allow the election to take place.
See the Biden Rule video during Bush 41's last year and see if you agree.
@D. Ben Moshe
Or, a possible compromise...
They could share a cell.
1
America has gone down the rabbit hole of partisanship. Congress does not care about impartiality and fairness. In fact, they reward divisiveness. Americans now hold it perfectly acceptable to appoint judges and justices who openly denigrate other Americans.
President Trump can't have a press conference or give a speech without denigrating whole swaths of Americans. He has made everything in America political. Everything including the Supreme Court.
Now instead of appointing a conservative justice, the Senate is, for the first time, on the verge of appointing a political operative to the Supreme Court .
As a lawyer, I never thought I would see this stain on our crown jewel, the US Supreme Court.
755
@KMP
Amen. I am embarrassed by the U.S. Supreme Court license hanging in my office. I will take it off the wall and place it in a dark corner until sanity returns. As it stands now, it will probably never emerge from the corner and will end up in a box in my garage after I retire in a few years.
1
@KMPnot Congress. Congressional Republican leadership. I do not find the “they all do it” cries persuasive.
@KMP
" the Senate is, for the first time, on the verge of appointing a political operative "
The first time? You've got to be kidding. What about the liberal 'operatives' now serving? They vote as a bloc.
It is very easy to see how Judge Kavanaugh could discharge his responsibilities as an associate justice of the Supreme Court. His responsibilities to those who appointed and confirmed him are much like the duties of the court that Republicans so admire: Iran's Council of Guardians. A body designed to enforce conservative religious doctrine and prevent democracy from taking place.
The only question is if at some point in the future if sanity takes over our elected government (by no means likely) if Kavanaugh's refusal to recuse could be grounds for impeachment.
10
I am no judicial scholar, just a concerned citizen, yet I reached the same conclusion as Mr. Tribe, after watching the hearings on Thursday. Judge Kavanaugh showed himself to not have the appropriate temperament, no less, impartiality, necessary of any judge, let alone a Justice of the Supreme Court.
It seemed to me that the hearing did it's job in bringing out these previously unseen aspects of Judge Kavanaugh. The necessary FBI investigation into the allegations of sexual misconduct may confirm others, including the likelihood that he perjured himself during the hearing.
For all of the above, it has become clear that while Judge Kavanaugh has an impeccable judicial record, supported by an elite education and academic achievements, and appears to be an excellent father and husband, he is not fit for any high judicial position.
14
@G F. Witnessing his conduct alone at this hearing should be quite enough to have any rational thinking member, Republican and Democrat alike, deny him this appointment to our highest court.
1
Judge Kavanaugh's partisanship and political biases are hardly new. Democrats - and the ABA - expressed concerns going back to 2003-2006, when George W. Bush was trying, at first unsuccessfully, to get Kavanaugh on the federal bench.
Furthermore, Kavanaugh's stint with the Ken Starr investigation and his time in the Bush White House give him a background in partisan politicking unusual for a Supreme Court nominee. He's been a partisan warrior for years. And the efforts by the Trump White House to conceal much of Kavanaugh's record under the Bush administration speaks volumes: It would unmask him, I suspect, as an extreme partisan with an expansive view of presidential power and immunity from prosecution.
As it happens, Kavanaugh unmasked his hyper-partisan self at last Thursday's hearing, raging at a wide array of perceived political enemies - much to Trump's approval. The president is not going to pull the nomination; Kavanaugh is exactly who Trump wants on the Court.
As for Senate Republicans, they're too dazzled by the prospect of realizing a long-held dream - a rock-solid conservative majority on the SCOTUS - to worry that that the Court's decisions would forever after carry an asterisk if Kavanaugh's name is on them. Or if he has to recuse himself (don't bet on it) so often that he can't do the job.
It's a sorry state of affairs when so many elected officials don't really seem to get - or care - how our government works.
1137
@catstaff
I think 'they' do get how government works....and 'they' care which is why 'they' have a majority in the Senate. What is more unfortunate is how few people who don't think as Kavanaugh, McConnell and their ilk apparently couldn't be bothered to vote in the November 2016 election. If more of them had, a different President-maybe even a different Congress-would be considering this vacancy on the Court.
2
Let’s not forget that the majority of Judge Kavanaugh’s documents have been hidden from Democrats on the committee (and the public). How many other disqualifying statements and actions would be found?
2
@catstaff - We forget that it took Bush over 2 years to finally get Kavanaugh confirmed & shoehorned into his current seat on the Appeals Court in Washington. And some of the testimony he gave there was later, with documentary evidence, proven to be perjury. But, by then nothing short of impeachment could have unseated him, and politicians just lacked the stomach to go through that massive effort.
1
What is important about this piece is that it accepts the fact that Kavanaugh will soon be on the Court. Kavanaugh, as the others on the Court, will recuse himself as he wishes. A painful notion for NYT et al.--to include Avenatti.
4
Should Justice Ruth Bader Ginsberg recuse herself as well for past comments she has made about the President of the United States and the animus she has madw quite clear.
6
@KB
Considering that he has not been a Plaintiff or Defendant in cases before the Court, the issue at this point is moot.
4
@KB
It's really (sadly) funny, isn't it? The demonstrated fact that Liberals can't (or won't) see the irony (some might say hypocrisy) in their whining about 'partisanship' on the Supreme Court?! Nah, RBG isn't partisan (much)!
Remember, this article is from a "professor of constitutional law at Harvard Law School".
None so blind as those who will not see.
2
That he was nominated in the first place speaks to the wisdom of our current president.
15
@Skier, obviously he wasn't fully vetted.
Back in 2006, the ABA had raised some doubts.
"One judge who witnessed the nominee’s oral presentation in court commented that the nominee was “less than adequate” before the court, had been “sanctimonious,” and demonstrated “experience on the level of an associate.” A lawyer who had observed him during a different court proceeding stated: “Mr. Kavanaugh did not handle the case well as an advocate and dissembled.” Other lawyers expressed similar concerns, repeating in substance that the nominee was young and inexperienced in the practice of law.
The report also raised questions about Kavanaugh’s ability to be balanced and fair:
Further, the 2006 interviews raised a new concern involving his potential for judicial temperament. Unlike the earlier 2003 final report and 2005 updated report, the recent supplemental evaluation contained comments from several interviewees with more recent experience with the nominee, which caused them to characterize the nominee as “insulated.” One interviewee suggested that much of his concern about the nominee being insulated was due, understandably, to the nominee’s current position as Staff Secretary to the President. However, this interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship. And another interviewee echoed essentially the same thoughts: “(He is) immovable and very stubborn and frustrating to deal with on some issues.”
3
Kavanaugh said Democrats are angry because of the Clintons. I think it's more to do with Merrick Garland.
7
@Kaari Blaming the Clintons is a knee-jerk response among those who are conspiracy-minded. I'm surprised Kavanaugh didn't blame George Soros as well. To me, conspiracy theories are a diversion for the weak-minded, while the real horrors committed by our government take place right in front of our eyes. For example, what's Kavanaugh's position on the stolen and abducted children being shuttled right now to remote tent cities under cover of darkness--by our government?
1
He can’t. He blew it. He let his true face show.
11
I have often wondered why Professor Tribe has not been nominated to the Supreme Court. Had he been appointed to the Court we might have been spared, among other things, the negative impact of the Citizens United case because in his volume on American Constitutional Law, Professor Tribe stated that human beings are the intended beneficiaries of our constitutional scheme.
I hope the Senate reads and and seriously considers the admonitions set forth in this essay.
33
If Kavanaugh needs to recuse because of political bias, then so should Ruth Ginsberg, who denigrated Trump during the election.
6
Perhaps you mistake honest judgement about an unfitness individual for political bias. Did ever stop to consider RBG's view would have been the same regardless of political affiliation? The man is recorded bragging and glorifying sexual abuse of women, first says it was locker room talk--disgusting piggish talk nontheless. Then it was faked recordings. Finding such things repugnant has nothing necessarily to do with partisanship, the failure to find such disqualifying does. Drawing equivalency here is blind particinship on display itself.
2
Only difference, Ruth Ginsberg is being biased toward one person, he is biased toward half of this country. And based on your point, Kavanaugh was on the team for impeachment of Bill Clinton, so he is totally biased and should not be even considered.
2
@md55
Doesn't matter her party affiliation. If her mind is publicly pre-judged on a matter involving Trump before the SCOTUS, then she should recuse herself, following logically from your argument....
Judge Kavanaugh does not sound like a judge; he does not act like a judge; he does not talk like a judge. Maybe he should not be a Supreme Court Justice.
34
What will we do when Trump and his cronies, along with republican cover, begin to jail their political opponents. We already have political blacklists beginning to make a comeback, just look at the way some federal agencies are run. What will Sens. Collins, Flake and Murkowski say then.
17
A Justice Kavanaugh would no more feel obliged to recuse himself from cases involving a personal conflict of interest than Justice Scalia did in a case involving his good friend, Vice President Dick Cheney. Such niceties are of little concern to those on hard right.
20
Or in Bush v Gore, when Scalia’s son was employed by the law firm representing Bush. Somehow, the media seemed somewhat unconcerned about such conflicts of interest on the Supreme Court at the time.
8
@Jack Shultz Makes me wonder where W's advisor Brett Kavanaugh was when the Brooks Brothers Riot disrupted the recount process in Florida and handed the presidency to W. I believe this was the first time the Republicans stole a national election on live TV.
President Trump will lose US-Midterm Elections due to the terrible republican Bret Kavanaugh affaire - under which the republicans desperately tried to press his nomination through with all possible unsympathetic means. It gave the Americans and International viewers a terrible poor impression of the Republicans lack of honesty. ( I am Danish) - but until the hearings in the Senate I was a true Trump admirer especially in connection with his harsh and extremely necessary sanctions against China who - being Worldmasters of the special Art of bribing and corrupting - that to an enormous extend - and always trying to corrupt or blackmail foreign politicians and powerful persons in any country they want acces to - and the Chinese and their governmental and state supported -institutions make use of ANY available dirty metodes to steal and copy Vestern intellectual property - and by shorting and share-manipulation try to disturb and destroy Vestern competitors - for instance by use of mainly well known New York based Hedge Fonds with enormous Chinese state-capital available. - From my time in Southeast Asia I learned to fear the Chinese more than anyone else. Never - never - appoint a Chinese at a high ranking leading post in your company - or you will find out within a surprisingly short time hat you have lost control of everything in your company.
3
Sir, you are absolutely correct about the Chinese. Well said! It should be repeated and publicized everywhere! However, what you are actually seeing in the Kavanaugh case is the extreme bias in the press and the ugly tactics of Democrats. Do not believe them.
On social issues, the Danes may be rather ‘socialist’. That may work for a small, rather homogenous self-contained country. In the US, creeping socialism is already problematic; full socialism would be an unmitigated disaster. At that point, expect the Chinese to dominate everything in business and militarily. One last question: would you think the Chinese would ever send their soldiers to ‘free’ your country, or any other?
1
The reality is Kavanaugh will NOT move to recuse himself from anything.
These are the very situations why our esteemed leader put this man up for the court.
18
"Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
A VERY disingenuous argument. ALL four conservative justices of the SCOTUS are blatantly partisan, and bear personal animosity toward liberals: the very reason for the GOP's titanic struggle for control of the Court.
Since Kavanaugh's ascension to the court is all but assured, these five orthodox catholic men, "sitting at the right side of the Father", some with plausible ties to Opus Dei, will indeed be VERY effective in deciding, unobstructed and according to their gospel, the political destiny of our nation for decades to come. Which is to say: the social, cultural and economic life of over 350 million people who make up our nation.
7
@citizennotconsumer
And all four liberal justices are not blatantly partisan?
Professor Tribe. You presume Trump and Republicans play by any sort of rules. They play by their own. There is no intent here to do what is right or fair or impartial. If confirmed Kavanaugh will state he has put the hearings behind him and there are "no hard feelings". Right. And if you believe that, you would believe he self administered breathalyzers and stopped drinking when he neared the limit. As many conservatives would. The bottom line is conservatives care about one thing and one thing only: overturning Roe. They don't care who does it. They don't care how flawed a person Kavanaugh (or Trump) is. They don't care how much he drank, who he groped or whether he lied during the hearings. They may get what they want. And feel they have done the absolutely right, Christian, thing. But when someone sexually assaults their daughter or granddaughter and the accused denies it, watch how fast they change their tune. Then it will be important. Then they will want justice. Then they will want a pound of flesh. And one of those cases will go all the way to the Supreme Court. Where Kavanaugh will get yet another chance to look at himself in the mirror. I wonder if he will like what he sees?
8
The American Bar Association are in a position to change their level of recommendation at any time, and it would not be unreasonable for them to downgrade Kavanaugh's ABA status from 'well qualified' to 'not qualified' on the basis of his diatribe. If he's been proved to be a liar too, which seems likely given the facts freel available, then that could be added as a contributing factor too.
It would be hard to see how the Senate committee could approve the nomination on that basis. I suspect that the drunkenness, boorish behaviour and sexual predation etc. will eventually become relevant supporting issues, not the main cause.
11
@Steve S
Someone should have checked Kavanaugh's blood alcohol on Thursday. His sudden radical change in behavior and irrational challenges to both Sens. Klobuchar and Whitehouse, as well as being a little snarky when Ms. Mitchell began to discuss his precious calendar, coupled with his unnaturally red face and a wife who looked exhausted, all have nagged at me since Thursday's hearing as all can be the after effects of drinking. My son, about Kavanaugh's age, with a similar history of early drinking, is a recovered alcoholic and I have witnessed this kind of behavior more than once after he has been drinking, even after 12 or more hours with no alcohol. As many of us know, once you've developed a "drinking problem" it takes very little alcohol to trigger this behavior.
He would, of course, deny having any problem, but after the reported outrageousness of his youth and his statement that he still likes to have a beer (which he can control he says), I'm concerned. Did he fall off the wagon? Somebody need to check that out.
2
"If he were to recuse himself" But he is a bully with an agenda, so we don't expect him to recuse himself. How can we protect the supreme court from degrading itself if Mitch got the votes? Is there somewhere in the constitution where a recusal can be enforced at the Supreme Court?
What are we becoming????
5
I am going out on a conspiratorial limb by assuming #45 wants Kavanaugh specifically because Kavanaugh believes in extreme executive privilege and power. Therefore, #45 will insist Kavanaugh not recuse himself for anything and continue to try and push this candidate deeply flawed by his own testimony. If and when the FBI uncovers more evidence of Kavanaugh's excessive drinking and sexual assaults, #45 will accuse the FBI of being partisan and encourage the faithless GOP to vote him in any way.
Flake because he is retiring might say nay, but Collins despite her moderate rhetoric is a career GOP and will bend toward her party's wishes.
This will further undermine our democracy and Putin--the grand puppeteer of this presidency will giggle himself to sleep every night.
7
@james: If the US were really a democracy, Trump would be a loser by almost 3 million votes.
1
I can't believe the GOP and conservative citizens still want this man on the court. Online today, a conservative told me that it is indeed all about "winning." That even if Kavanaugh did commit sexual assault, drink to excess, go after Bill Clinton, etc., it was all OK as long as he was going to be the deciding vote in overturning Roe v Wade. Because winning is the only thing that matters. They want to put a man who likely committed sexual assault on the Supreme Court so he can take away women's rights. That says a lot.
10
Among all the serious problems with this deeply flawed nomination, surely Chief Justice John Roberts must have grave concerns about the legacy of his court and how a Justice Kavanaugh will taint that legacy. What must at least some of the other justices think? How could they interact with a colleague who not only would have to recuse himself from many cases, but who has told so many inconsistencies and has presented himself as an untrustworthy person who appears to be interested only in advancing his own extremely partisan agenda? And it raises the obvious question of whether Judge Kavanaugh is even fit to serve in his present position on the Circuit Court.
Even though I would much prefer that Judge Kavanaugh not be on the Supreme Court, if the Republicans ram through this nomination despite all the serious evidence against his suitability, it could potentially result in a number of 4-4 decisions that would revert to the lower court. In light of the issues at stake, and depending on how lower courts will have ruled, that may be better than having another extreme conservative appointed instead.
1
Only a fool or a law professor would attempt to argue with a straight face the justices are not clearly biased: they vote virtually the same way in each case according to their political beliefs. It's no coincidence. Indeed Scalia went on a long, isolated countryside hunting trip with a litigant who had a case before the court. This is what's called the appearance of conflicts of interest. It's a democracy bought and paid fr by oligarchs.
7
Kavanaugh now seems to be caught in a direct lie under oath to the Committee. And what appears to be obstruction of justice.
https://www.nbcnews.com/politics/supreme-court/mutual-friend-ramirez-kav...
4
There are three instances where good friends were killed by other drunk drivers. All victims were young. That was over a half century ago. They missed a long life. Beer can kill. Kavanaugh’s attitude toward underage drinking is irresponsible. His behavior appalling. We should recuse him from the Supreme Court. There is no lack of good candidates.
5
Let's just be crystal clear about one thing: If all the facts with Judge Kavanaugh were the same, except that he were a liberal, pro-Roe nominee from a Democratic president, Professor Tribe would find him eminently qualified and suitable for the Court.
4
The GOP leaders do not want a fair justice on the Supreme Court. They want someone, ideally a robot, who will vote to support elimination of business regulation and help destroy unions; who will suppress abortion and family planning; who will support racism and xenophobia. And it looks like Kavanaugh would be their guy.
18
Excellent article -- but the idea that Brett Kava(not) would ever recuse himself for any reason is totally illogical.
He has no regard for anyone's opinion save his own. He is the total opposite of what we consider to be a judicial non-partisan.
He has no business on the Supreme court or any other, for that matter.
17
Yes. It’s not his emotion or combativeness. It is his obvious partisanship bordering on Alex Jones style conspiracy peddling. Imagine a case before him like Bush v Gore. How can anyone reasonably think he could be neutral? That’s what should disqualify him.
14
Justice Ruth Bader Ginsburg said that Trump is fake. Must she then recuse herself from any cases involve Trump administration?
1
But, she is right.
But in the end, isn't it actually left the justices themselves to decide and therefore if they decide not to recuse, there's no recourse, is there????
1
Well stated Professor Tribe, but I think your argument is a bridge too far.
As you noted, the Supreme Court Justices have all declared themselves outside the rules of judicial conduct that apply to other federal judges.
I don't recall any of the highly partisan picks from the right ever recusing themselves on any case. Justice Kagan quite appropriately recused herself from cases that originated in the Solicitor Generals office while she was there. But Justice Scalia refused to recuse himself from cases involving his hunting and fishing buddy, VP Cheney.
If you or I were called for jury duty and were friends with the judge or any of the parties in the case we would not be empaneled. In a criminal case, the judge herself would remove us from the jury pool.
Despite the appearance, the justices of the Supreme Court make their own decisions on conflicts and there is no appeal.
You can bet that the only reason Judge Kavanaugh would recuse is if he had already sat on a case in the Court of Appeals, such as the immigrant abortion case.
Otherwise, he's clear about his political marching orders and determined to carry them out. And unfortunately, those aren't grounds that would prompt any members of the GOP to vote 'no' on.
5
Kavanaugh's days as a nominee are numbered.
Besides, he's much more suitable to serve the administration as Trump's personal lawyer.
16
@KenF
My gut tells me you're wrong, I think the repubs will give him a pass, we don't have enough votes to not confirm. There aren't enough repubs to swing the other way. In my heart I think it's a done deal. More's the pity for us.
2
Thank you for printing this. Many appellate lawyers' immediate thoughts after the "Clinton revenge" remark was that in any political controversy before the court they would need to consider requesting recusal. As if things weren't politically complicated enough. The black letter SCOTUS precedent concerning the obligations of government agents regarding bias, from court including Brandeis and Cardoza, in 1935, "representative... of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all(.)" seems so arcane as to have been from another planet, not just another era.
7
Your comments are well considered and should be addressed by those in the decision-making process; unfortunately, they probably will not be given a second thought by the Senate majority unless the few moderate Republicans suddenly grow backbones and vote against this travesty of a nomination.
9
This man Kavanaugh has lied, obfuscated and zigzagged around his record already. And so the word integrity does not come to mind in judging his fitness for the Supreme Court. I'm no fan of the Clintons but to blame them for this debacle without producing a shred of evidence is in itself ample reason to remove him from the bench he occupies now. His contempt for those who do not think as he does is palpable.
So much is still hidden about Kavanaugh's record but from what we know so far, he only need look in the mirror to see who is to blame for the nonsense going on now.
Someone here has suggested that Tribe's piece gives Kavanaugh a gracious way of withdrawing. Fat chance. There is no evidence of graciousness in this man.
15
The history of the SC is replete with ethics compromises and even felonies. But, it does occasionally rise to the occasion. I had to read a book in school called "The Higher Law" and write a paper on it.
Today, I remember some of that reading (long time ago) and apply it to our present SC. The GOP has already placed what are basically corrupt and even inept judges on the court. The Roberts Court contains several questionable judges. Highlighting the rouges gallery is Thomas (a non entity). Alito (corporations are people and Citizens United), Gorsuchs (who knows), and Roberts himself. Roberts did not kill the ACA but did weaken it with his Medicaid ruling. And then earlier, he did elect GW Bush. Sometimes the Constitution is lost in the shuffle.
Now we have Kavanaugh who will not be the non-entity Thomas is but will, instead, be an activist for his warped view of humanity. A perjurer without a conscience. A protector of Trump if needed.
I follow Professor Tribe and enjoy his insights daily. Keep them coming sir.
8
Ginsberg and Sotomayor are two of the most partisan supremes In recent memory. Ginsberg verbally demeaning Trump and sotomayor considering “gender and national origin” in her decisions. That should recuse them from anything Trump or immigration.
3
You're wrong. judges are entitled to personal opinions and political views. What they ate not entitled to is to suggest they are incapable of hearing a case fairly. Brett's display of venom makes him an unacceptable jurist to half his possible litigants since he clearly can't be fair and impartial. I admit you however are probably behind the pale of reasoning however given your astonishing statement that mention of race or gender in decisions is wrong. As if not mentioning them makes them somehow go away.
2
Under these standards, RBG would have to recuse herself if Trump were to come before the Supreme Court, because of her comments about him in 2016. Hopefully she will be replaced soon.
1
@trasor
I can agree with you on that. She would also be setting a good example for Kavanaugh to follow.
This guy should stop studying laws and needs some long rest. Maybe, he studied too much and lost very basic common sense which he should have learned in kindergarten.
He sounds like a sociopath who blames a boy for his loud noise while the boy is caught in a trap and is crying badly. Judge Kavanaugh’s behavior is very normal if he is really innocent. If he is not, well, we can just say his acting performance is very good. Nobody might tell the trust now, but it makes me feel quite comfortable to see him react like ‘a normal person.’ We don’t want to have a cold blooded monster who is indifferent to himself and his family under this kind of unthinkable hardship for any role in the society.
2
@YHan You may say his behavior is normal (I would disagree), but it certainly is not appropriate for a judge.
8
Kavanaugh also showed his poor temperament and weak judgment even before his command performance last week. One example: at the end of his Garza dissent he dropped an angry footnote that was a judicial hissy fit, just because the full court decided to overrule his hoped-for result. He was ticked off that his colleagues on the bench disagreed, so argued that they lacked the right to do so. A ridiculous position under the circumstances.
His attitudein the Garza dissent makes more sense after watching his testimony- stubborn, angry and intellectually dishonest.
20
Assuming he is not confirmed to the Supreme Court, would Mr. Tribe have Judge Kavanaugh recuse from most cases on the Circuit Court? Is it mandatory since the rules do apply at that level?
2
The same way Ginsburg, easily as partisan, is seen as effective.
6
And he said his goal is to see an all-male Supreme Court. How awful to wish for other genders to not be represented! Who would celebrate someone who thinks that way?
2
@Stourley Kracklite
Link, please? This is the first I'm hearing of this.
5
@C Wolfe Oops, I got my quote wrong. It was Ruth Bader Ginsburg who said she only wanted to see her gender represented on the Supreme Court.
While half the country was appalled by Kavanaugh's rant the other half was cheering him on. On Fox, Hannity was practically frothing at the mouth bellowing about the Democratic plot to keep Kavanaugh off the court. As one of the appalled, I appreciate and agree with Mr. Tribe's analysis, but fear that Kavanaugh will be approved and free to rule against women's rights, the environment, and workers' rights for years to come.
15
WHat about Ruth G, she has lambasted Trump many times before he got the nomination from the GOP and was elected POTUS. IF anything with Trump that comes to the SCOTUS she must then also recuse herself?
2
@Mr Chang Shih An your source please for the "many times". She did once, yes, and apologized. And her "rant" was fact based. Kavanaugh's and the GOP can't attack Ford, at least we've come that far. Instead he and Trump and the GOP have gone to the usual mattresses. Revenge for the Clintons, seriously? It should be laughable. I hope decades, centuries from now people can wake up and look back at this whole charade of an Admin as an aberration.
2
@Mr Chang Shih An
The difference, if it matters to you, is that Justice Ginsburg never did it under oath.
2
@Robbie J.
Since it was opinion, it wouldnt matter whether it was under oath. No way to lie about opinion.
Complete red herring
What is happening now will happen with every nominee without the restoration of the 60 vote majority needed for confirmation of Supreme Court justices. Graham boasted about how he voted for Kagan and Sotomayer - there are many Democrats who voted for Kennedy and Roberts and, yes, even Thomas. McConnell has singlehandedly destroyed the process with Merrick Garland and, later, by eliminating the 60 vote majority - this is what a naked power grab looks like and, in my eyes, it is pretty ugly. If the senators are at all uneasy that the country is being torn apart, they, and only they, can correct it. After this selection is completed maybe the American public will have had enough and in 2020 will vote for the party who promises to restore the 60 vote majority.
17
@Pmalex The"naked power grab" was started by Harry Reid when he lowered the 60 vote threshold to 51 votes for federal judges.
1
The Supreme Court?
It appears an absurdity. A circular process. The people voted to Supreme Court appear increasingly dependent on, are judged by, the public, even slandered and rendered unable to be voted onto Court by public opinion, and ironically of course these very people voted to Court are supposed to resolve many of the most difficult conflicts within the nation.
It's obvious people on the Supreme Court are not actually supposed to be honest, highly intellectual people charged with tackling extraordinary national difficulties but are people placed on the Court by partisan and public interests with an outcome to Court cases already in mind. It's a sham whereby interests get people on the Court and then when an interest has a majority of itself represented on the Court we are all told "The Court has decided such and such case is resolved in such and such fashion".
There is no Supreme Court. It's an entirely poisoned bench by partisanship, by ideology, a mixture of legal jargon combined with the mentally lukewarm ideology of left or right wing politics. There is no intellectual discussion worthy of a person with an I.Q. above 120. The idea that impartial not to mention transcendent judging can occur on the bench is absurd, for the entirety is constrained to particular rules like a game, the game of accepted ideology of right or left, the game of legal jargon, Constitution, etc.
It's a closed system, atmosphere, destined to be swamped by low reason, ugly politics.
3
@Daniel12 "even slandered and rendered unable to be voted onto Court by public opinion"....sorry it appears that way to you, but I still believe that the senators that represent my state, represent me. Millions of us have contacted our senator regarding how they should do that. Is that the "public opinion" you would like to see ignored? We all already know that the Supreme Court has already been sold to the highest bidder, influenced by money and weekends spent with "certain" politicians and big money donors....at least I would like to believe that our opinion of how our senators should vote isn't completely ignored...after all, they need our votes again.
2
@My Name
The time honored right to contact your members of congress should be a requirement for citizenship.
In one of his recent statements, he said that part of his reasoning to push for an FBI Investigation was the large number of emails, calls, etc. from citizens. We often think that our calls, emails, tweets, whatever are not heard. Clearly, Sen. Flake was listening.
There is little in Trump’s history would lead us to believe that he will withdraw Kavanaugh and seek another person. While that might be wise, only in a political sense, he has rarely shown capacity for wise thought and action.
The sad truth is that the impartiality and credibility of our highest court is in the hands of a fool. Trump’s ego-driven thinking makes it difficult, perhaps impossible, to admit he was in error. Perhaps the Senate GOP can offer him a fig leaf, but that seems unlikely. The GOP base will roast them as a result.
If Kavanaugh joins the Supreme Court, traditional opposition tactics will not work. Such a necessity will require invention.
It’s going to be a marathon for the coming decades. Unlike Pheilippides, the original dispatch runner from the battle of Marathon to Athens, we dare not drop our shield or remove our armor.
1
@David Potenziani trump has proven over and over that he is incapable of admitting he was wrong, even when 29 film snippets show he said something, he will deny it.
4
@David Potenziani
It's not all up to Trump. McConnell can refuse to bring the vote to the floor if he realizes he doesn't have the votes.
Not sure where it goes from there. A rational person would have withdrawn from the nomination long before this, however, we are seeing that Judge Kavanaugh's ego rivals Trumps.
1
Now that the last shreds of SCOTUS's non-partisan veil have dropped, perhaps we can come up with better shorthand for letting the public know their politics. Rather than referring to which President made the appointment, a simple (R) or (D) -- as with Senators and Representatives -- would suffice. John Roberts (R), Clarence Thomas (R) Ruth Bader Ginsburg (D), Neil Gorsuch (R) and so on. Time to take this to its logical conclusion.
1
What does all of this do to cases on which he has already ruled, the people who were convicted & either sentenced or upheld, and every judicial ruling of which he's been part? Is everything he has done in the past come into question by parties involved? This may be a bigger mess than anyone believes.
4
Kavanaugh, trump, McConnell, Graham....all the worst we have to offer. McConnell is the reason we are here. He now drones on and on about Democrats obstructing. He wrote the book on obstructing. Kavanaugh does not belong on the Court, his temper tantrum at his hearing makes that clear.
Vote Blue and demand a return to bi-partisan government. Democrats are more likely to have an open mind about that idea.
McConnell and trump have shown how partisan republicans can be.
And Graham has shown how ridiculous republicans can be.
20
President Trump chose Judge Kavanaugh instead of one of the many other conservatively-minded candidates on a list submitted in part by the Heritage Foundation for one reason:
Kavanaugh is on record implying the Constitution preempts the president from civil lawsuits and criminal charges and investigations until he (or she?) leaves office.
Trump spied an ally in Kavanaugh and that was that. Kavanaugh seems to believe he is above the law as well.
If denied confirmation, don't be surprised if DJT makes BK a member of his legal team.
Kavanaugh would be much more helpful to Trump -- unlike Jeff Sessions -- on the Supreme Court, but that does not seem likely at this stage of the game.
Jeff Flake is testing the waters for a presidential run himself and he needs to differentiate himself from Trump. Flake has already done that by calling for an FBI investigation, but he would cement his position as a Trump antagonist by voting against Kavanaugh's confirmation.
(Don't forget the high cred Obama got when he was on record opposing the 2003 invasion of Iraq.)
Collins and Murkowski will also vote nay, giving the "nays" 52 votes, assuming all Dem's fall in line. There would be no tiebreaker even if Manchin votes "yea," allowing him to endear himself to his very pro-Trump constituents and keep him on the Dem's side of the aisle.
Time for all who favor an independent, unbiased Supreme Court to begin scanning the list of those next in line ... to see how they measure up.
5
It is precisely because of Kavanaugh’s decades-long career as an angry partisan hack that he was nominated after the Republicans held a seat open rather than even allow a hearing on the judicious Merrick Garland
The Republicans have shown that they are willing, even eager, to toss aside the Constitution to grab power.
13
There is zero chance that if confirmed, he will recuse himself on cases involving "liberal" litigants (e.g., the ACLU, Planned Parenthood).
13
Well stated and spot on. What we need is a process that actually takes partisanship out of the court nomination process because while many claim it is a nonpartisan court, it is clear it is not. I'll bet we could do a lot better if we came up with a process allowing the legal community to come up with a nonpartisan process. Regarding Kavanagh, methinks he doth protest too much.
5
Aren’t the others judges the same? I think they all have their own political ideas but that does not stop them from being non-partisan in their decisions.
Yes it does.
I have a question and a comment.
What do the current SC Justices think about working with this man?
As more information comes out about his drinking habits as a young man, it seems likely to me that he really does not remember assaulting Dr. Blasey-Ford, and he might not remember many other things that he did because he was so drunk at the time.
I cannot imagine why he is still being considered seriously for a lifetime appointment on the Supreme Court, unless Trump's new goal is to not only stack the court but at the same time destroy its credibility.
9
Wallowing in angry self pity as a self perceived entitled court justice is certainly not an admirable trait. I know stranger things have happened but regardless of his politics this man clearly is not suitable for the position. I can not believe that there are not at the very least equally qualified individuals with a more balanced temperament and who would be able to set their politics aside when necessary. Kavanaugh is clearly a dangerously partisan person, not to mention his anger issues. He simply does not measure up to the necessary caliber. Time to look elsewhere.
19
The hearing, and subsequent backing of Kavanaugh by Republicans, are ongoing examples of the blatant rubbing of our faces in their (current) power over policy and institutional destruction. Their long game is nothing short of a slow-moving coup. This attempt won't be over with an election, they will not concede their power. Kavanaugh's "vast conspiracy" comment at the hearing is use of an old playbook of externalizing their own behavior.
10
Kavanaugh has been at the center of radical conservative politics for most of his career and represents a threat to a balanced and unbiased supreme court.
19
There is really no doubt that if he were appointed he would NOT recuse himself from anything.
The "What goes around comes around" remark was utterly unconscionable. I'd have asked him to leave the room at that point. A Supreme Court justice can't make threats ... I thought.
22
There's no way Justice Roberts or his minions are the slightest bit worried about the 'appearance of fairness'. There's money to be made and power to be swayed to the conservatives for far too long into the future for them to pass up this chance at Monopoly.
9
He already frightened me terribly during his job interview for the Supreme Court by growling: "What goes around comes around." I shudder to think of how a Justice Kavanaugh would adjudicate any matter brought before him that had the slightest hint of liberal support or meaning.
15
It would appear that "Gamble vs. the United States" is the underlying reason we are having this rush to judgment, with both #45 and the GOP insisting on this most unqualified person be put on the Supreme Court, and ASAP. The aforementioned criminals want to make sure they get off the hook and avoid prison sentences.
9
Republicans have weaponized out entire system of politics, with the Supreme Court being just the latest target. They feel that we all need to fall in line and do what they tell us to do or there will be trouble. From their POV only conservative ideas are valid and opposition to their agenda is akin to treason.
The Tea Party movement was instrumental in this effort and taking partisan control of the Supreme Court will further solidify their march toward an authoritarian government in the US.
5
Forget Supreme Court Justice, I wouldn't have this guy preside over a discussion of which tuna salad recipe was better.
Also, in another article in this NYT, "A New Front in the Kavanaugh Wars: Temperament and Honesty," .... this ain't new. The issue was always his fitness/suitability.
And the demonizing of the Dems for trying to stop this nominee at all costs, while the Republicans what to jam him through not matter what, and do that while they are accusing the Dems of making this political .... holy cow, if it wasn't political why are they (the Reps) pushing so hard. The hypocrisy is so blatant. More people have to call out the Reps on this and not let up.
21
Here is what Ruth Bader Ginsburg told the New York Times and CNN about candidate Donald Trump's impact if he were elected president: “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. She also called candidate Trump a "faker." I am no fan of Donald Trump and I agree with Mr. Tribe's points here about Brett Kavanaugh. But has Mr. Tribe argued that Justice Ginsburg should recuse herself from any case involving Donald Trump? I think I missed that.
5
@Leo
Did Justice Ginsburg say it under oath?
That does matter, you know.
@Robbie J.
no, she was not at a job interview before senators for justice seat, she WAS a sitting justice at the time of her political comment.
I know this matter much more for a sitting judge than a nominee. In fact she apologized after being called out.
What can be done if, in a Trumpian manner, he does not recuse himself? Where does one go for relief from such refusal?
6
Having someone from the Brookings Institute comment on when it’s appropriate for a conservative to recuse themselves based on political ideology is like asking an NFL team to manage the replay decisions for the tram their playing that week. Mr. Tribe should have recused himself.
3
@John Is everything partisan now? Mr. Tribe is writing about the judicial code of conduct. It does not matter what party to whom you are affiliated, conflicts of interest and the appearance of fairness and impartiality are tenets of the American judicial system.
5
Let's see, Kavanaugh's performance was bizarre, one would have to admit, no matter from where in the political spectrum one hails. So I see only two possibilities: 1) he is incapable of controlling himself when stressed, or 2) he ranted and raved purposely, thinking it good strategy to obtain his confirmation. Accordingly, he is either prone towards irrationality or towards combativeness, neither of those being the personal traits I would like to see in any judge, especially one sitting on the Supreme Court.
50
The Republicans' refusal to even consider Merrick Garland has irrevocably destroyed what was left of confidence in the Supreme Court. It's trip down the road of conservative partisanship was there for all to see in its decision to elect G.W. Bush.
45
@katherinekovach The only Supreme Court judgements in the GW Bush election were that the rules for recounts had to be the same in all Florida counties (equal protection) and that the process had to be finished in time for the electoral college to vote. The decision was sent back to the Florida Supreme Court and Gore withdrew his lawsuit at that time. Had the recount continued as Gore requested, he would have still lost. It’s interesting to see how people re-write history.
3
Actually it is not certain Gore would have lost a full recount. Media investigations came up with contradictory results. Some sources, including The Guardian, and the Chicago Tribune, concluded Gore would have gained votes, others concluded Bush.
Of course if SCOTUS allowed a full recount, the end result would have been uncertain -- either man could have won. Stopping the recount locked in one outcome: That Bush would win.
If Gore had been ahead at the time of the decision - would SOCTUS have made the same decision? Unlikely.
@katherinekovach That was truly disgraceful. Not even a hearing. Obama's nomination? forget it, no way. Mitch McConnell is the same one who said: "let's make sure he is one term President". History will not forget nor forgive.
2
Thank you Prof. Tribe, for your precise explication of why Judge Brett Kavanaugh would not be an effective member of the Supreme Court. Looking back to a similar confirmation in 1991, Justice Clarence Thomas has not been an effective member of the S.C.O.T.U.S. for the past 27 years when he was confirmed by the Senate Judiciary Committee after the appalling and obviously true accusations against him by Prof. Anita Hill who worked with him at E.E.O.C. in the late 80s. Looks like ancient history, but it's not. Brett Kavanaugh's rage and belligerence against the Democratic Senators on that committee this past week were red flags that he would have to recuse himself from far too many issues facing the Supreme Court in the coming 30 or 40 years. Let's not confirm a man of unjudgmental hair-trigger temperament to a long lifetime on the Court. We need a Justice who will bring honour, not dishonour, to the Supreme Bench.
61
Trump nominated Kavanaugh and Mitch McConnell has trashed the legitimacy of the Senate precisely because he will not recuse himself for the reasons Mr. Tribe gives. The question is what should the majority do in response to a minority party that will do whatever necessary to gain and maintain control of government and judiciary.
35
Maybe it’s time to review his prior rulings? Has he been carrying out the very thing his conservative friends say they despise, a court driven political agenda? Sounds like it to me. Well, maybe the committee finally got some truth out of him.
24
@Terrance Neal
You are making an excellent point. His prior rulings should be suspect considering his testimony before the Senate. He is a privileged ultra-conservative who has no business ruling on people that he considers to be beneath him--liberals, women....
7
@TalkToThePaw
Now, only if the WH and Senate Republicans would release his prior rulings.....
Wait, they are actually public record...
...and they were the topic of the actual confirmation hearing. Senators are free to vote on their views of his rulings.
"Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court?"
He can't.
That said, the question confuses the issue.
The intent of the republicans is to construct a court inherently biases against liberal thought. That is evident in every statement and every action considered by the republican party.
Americans should expect nothing else.
39
@TDurk
Thank goodness because liberal thought equates to no country, globalism, open borders, bypassing the rule of law and socialist dogma.
1
Add up the following elements in this train wreck of a nominee: 1. Dr. Ford's harrowing testimony is impossible not to believe. 2. Kavanaugh lied about his series of stumbling, aggressive intoxication episodes. 3. Kavanaugh's opening remarks were laced with flagrant demonstrations of partisanship and bitterness, totally unbecoming of any person, let alone a candidate for SCOTUS. 4. If not for Jeff Flake's insistence that the FBI investigation be thorough and not just cover for the GOP and Kavanaugh, Kavanaugh would have entered SCOTUS through the back door and under an enormous cloud. So the question of a Justice Kavanaugh having to recuse himself in many cases becomes a moot point. He's damaged goods already.
47
@nzierler Thank you. Your description "this train wreck of a nominee" was and is exceptional. I encourage American citizens to embrace your analogy to describe our sitting president. He is a train wreck, unfortunately, perhaps the apogee of train wrecks.
2
Using that reasoning several of the current members of the court would not be qualified to serve. An understanding of our constitution and a through knowledge of the previous decisions of the court should be the qualifying factors. A candidate for the position should not be judged on his or her position on issues as “liberal or conservative”. It appears that our major problem is that Congress is not fulfilling its responsibility to pass laws-having left that to the Court and the President.
6
I'd like to debunk a refrain among liberals that this nomination, if confirmed, is going to change SCOTUS for decades.
(I took off from a comment by Reader Rader that started with this affermation)
Let's see about that ( from wikipedia page on SCOTUS)
Bader Ginsburg (85)
Breyer (80)
Thomas (70)
Roberts (68) Chief justice
Alito (68)
Sotomayor (64)
Kagan (58)
Gorsuch (51)
Actual retired justices
Souter (79) ret. (70) 20 yrs as justice
O' Connor (88) ret. (76) 25 yrs as justice
Kennedy (82) ret. (82) 20yrs as justice
Stevens (98) ret. (90) 35 yrs as justice
so, with the notably exception of long-living justice Stevens, people are going to retire in the seventies/mid-eighties. So in the next decade- singular- at least 2 justices Ginsburg and Breyer are going to retire. Thomas is likely to ( he has 50% chance before being 80yrs old), and we cannot rule out even chief justice Roberts ( 25% chance ).
So in the single next decade at least 2-3 justices ( possibly 4) are up to change in SCOTUS.
5
@Alex p
CORRECTION: i misstated the age of chief justice Roberts
Roberts (63) chief justice
So, it's Alito (68) who has a 50% chance of retiring from SCOTUS
This is a compelling analysis. There was simply nothing judicial about the performance we witnessed.
31
Here's the thing--conservative justices NEVER recuse themselves. Rehnquist didn't recuse himself on a case where his daughter was an attorney for one of the parties. Look at the patterns--across the board, the more conservative members have not recused themselves in cases where they were clearly conflicted.
37
Andrew McCabe of the FBI was dismissed and denied his pension because of a "lack of candor. Now we see Brett Kavanaugh lie and dissemble through two senate hearings, for his appointment to the Supreme Court. He also displayed contempt for the process, his response to Senator Klobuchar was contemptuous and demeaning. Why would any senator support Kavanaugh joining the court, other than a desire for political power?
It's clear that he is a "republican operative" rather than a dispassionate jurist, As Mr Tribe writes, he would need to recuse himself from all cases pertaining to women' rights, which we know is very unlikely. If he did, Trump would be as angry with him, as he is with Jeff Sessions, the attorney general, he doesn't have.
60
No matter how true Tribe's case may be, we're stuck with the fact that appearances, ethics, and even rules don't matter today. What matters is power and proponents of civility, common sense, integrity, and justice don't have enough of it.
If you want something different, you need to win the game folks. Drag your like-minded friends, neighbors, and colleagues to the polls and take the power back.
53
I admire academics like Prof. Tribe who reason with humanity and jurisprudence; alas, such doctrinal exposition rooted in constitutional law can do little against the coercion and FUD campaign waged by the Republicans and their paramilitary groups like Judicial Crisis Network, run by a former clerk of Thomas, and Judicial Watch, spending millions in corrupting DC politics
https://www.politico.com/story/2018/07/16/brett-kavanaugh-judicial-crisi...
NYT readers may gripe about how unqualified Kavanaugh is but there is no match with the almighty dollar spending lavishly on Facebook and other social media. Women, and all the decent people for that matter, need to wake up. Outrage is not enough. You need to dismantle these paramilitary groups
30
Under Justice Tribe’s formulation, any liberal group could cast doubt on a Republican nominee’s impartiality, and ability to serve, by openly opposing his or her confirmation. In effect, the ACLU could exercise a veto on any nominee. I don’t believe that 28 U.S.C.section 455 has ever been so expansively interpreted and Supreme Court justices are not so easily challenged. Judge Kavanaugh’s judicial temperament and ethics have also been beyond reproach for the past ten years.
4
@Christopher Rillo
Tribe’s formulation says no such thing. Groups oppose judges all the time — that’s their right. Judge’s don’t share that right. There is no concept of bilateralism that applies between sitting judges and the parties who come before them. A judge simply cannot say what goes around comes around because a group opposed his nomination. A judge’s personal vendetta can affect millions of innocent bystanders.
24
@AnActualLawyer
As with Professor Tribe ... it is far from splitting hairs when I applaud your sentiments BUT
point out that there is a world of difference between
SHOULD NOT
and
CANNOT!
The other flaw in your post - one shared by many, including Prof. Tribe - is that BK's outburst - lamentable, scary, injudisious, etc. - really didn't/doesn't change a thing.
You don't think RBG ever raised her voice? OK - surely NOT in a forum like that and as stridently.
But we all know that when anger talks, some particularly regrettable things often get said.
One can always hope that one of his daughters "comes out" and he moderates. Failing that, he probably won't be a particularly "bad boy" on the court - just vote 5 for all the wrong things.
And it MAY push CJ Roberts a bit closer to J. Kennedy's old "let's sand off those razor sharp edges in this or that decision!"
@Christopher Rillo Actually, during this nomination process it was revealed that Kavanaugh committed perjury during the hearings for this current position. He lied about his knowledge of stolen Democratic documents. He's spent most of his career as a GOP party hack...in other words, a perfect Republican court appointee.
5
what would qualify an federal appeal court judge be impeached ?
5
The judge was speaking truth to power to the immoral liberals on the panel . I hope the judge gets confirmed and sides with the majority in all cases. Liberals will be losing for the next 10 years in the court
6
Why would one want him to side with the majority in all cases? Why would he even need to hear the cases? Why wouldn’t we want him to vote for the side which makes the most compelling argument even if this means voting once in a while with folks with whom you you usually disagree?
10
@Jimd
Am I reading it right that you want him to use the Supreme Court as an instrument of revenge?
6
@Jim
Most sane people on planet earth saw a privileged individual become unhinged when his record was questioned. To suggest that he in anyway 'spoke truth to power' is totally wrongheaded and clearly the thought process of a tribal mindset.
Kavanaugh is blatantly unfit to hold his present jurist position, never mind one on perhaps the planets most influential court. How far the once respected US has fallen, with Trump and his blind partisan followers dragging that nation down into the sewers.
4
"I like beer. Still like beer." I like beer too, but I'm not seeking to be the next Supreme Court Justice. Now if Kavanaugh were an amateur zymurgist, I'd cut him some slack. But his downing of brewskis might show that he's really in denial about his drinking. Nobody wants an angry drunk as a judge. Maybe if he admits that he is a recovering alcoholic and joins AA, he might be viable. But that won't happen. He claims the charges by Dr Ford and the Democrats machinations destroyed his family. He needs a reality check because the only person who destroyed his family is Judge Kavanaugh. There is no honor and machismo in guzzling down beers. Brett has a drinking problem and needs to address it and anger management therapy.
39
@g.i.He should have been asked if he "made amends to all those he has wronged."
We would have learned is he was self-aware.
2
After Kavanaugh's whiny, angry tirade was over, I pretty much said the same thing that Tribe is saying in this piece. I'm not a lawyer.
If the conflicts are that obvious to me, I imagine they are more than obvious to U.S. Senators. Will they act appropriately, judiciously? I doubt it. The Republicans appear desperate to squeeze the Court out of Trump under any circumstances. If they succeed, they can live with their conscience for elevating this mob boss to the White House.
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Exactly, this political partisan belligerent hack does not deserve a lifetime seat on the Supreme Court. Let him coach.
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I’m no legal expert but I’ve read over & over recently that a Supreme Court Justice CAN NOT be required to recuse themselves in any case brought before them.
Clarence Thomas who was accused of sexually harassing Anita Hill has apparently ruled in at least one case re: workplace harassment issues. No surprise, he apparently ruled AGAINST workers.
Maybe all the articles I’ve been reading have been wrong & Supreme Court Justices can be forced off certain cases. It sure seems as if Tribe is potentially suggesting that possibility.
6
As far as the GOP is concerned, his partisanship is a feature, not a bug. And it's extremely naive to presume he'd ever recuse himself once seated on the SCOTUS bench.
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All very true, and he did it to himself with his own sworn testimony.
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Is McConnell's effort to muscle the Kavanaugh nomination through a part of Trump's design to subvert the rule of law and hence undermine constitutional government?
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Missing from any news report is the precise number of FBI agents who have been tasked, at any point since his name came up in the Trump search for judges favorable to Trump, with conducting the Brett Kavanaugh background check.
Now, in this week of "supplementary" investigation, exactly how many FBI agents are on this assignment?
Can we have a precise number?
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@Maria Ashot After the way Trump has bashed the FBI and the CIA do you think they're going pull any punches? They're no friends of his.
@Maria Ashot: People calling FBI field offices say nobody has been assigned to take calls about K.
Laurence Tribe surely knows that every Justice of the supreme court, past and present, has personal opinions and political leanings. Yet, most render judgements that take two principal factors into consideration: the constitution and precedence. Kavanaugh is likely to be no different
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@Kamini D
No. Based on everything we have seen its clear that Kavanaugh is likely to be very different. But, just to correct you, your country's supreme court is clearly not deciding matters on "the constitution and precedence". Its quite clear that a large number of cases are already being decided on the basis of disguised and not-so-disguised political preferences. That is why the american court system is rapidly losing respect among the world's english speaking lawyers. And your politicians and supreme court judges have rather quickly eroded their standing by their willingness to split on political ideological grounds. Thats exactly why appointments to high courts should never be decided on the recommendation of people who dont understand the issues and ramifications - ie ordinary people and their elected representatives. Non-lawyers simply dont have the expertise to make decisions on who should be on the highest judicial benches and your collapsing system of separation of powers is a clear warning of why non lawyers have no place in these decisions.
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His years on the bench have shown he does not follow precedence.
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@Dave To say nothing of the fact that at least in this case the knowledgeable and serious legal advisers on the decision to appoint are also biased. Trump chose candidates exclusively from a right-wing think tank, the Heritage Foundation.
It's difficult to explain transparency to a person who attended public school.
Judge Kavanaugh has been placed in this position. He didn't place himself in this position. He is fighting for his life! He is accustomed to working hard for rewards, not against false accusations, which put his life in jeopardy.
Judge Kavanaugh is Catholic. Honesty and fairness are drilled into you from the get-go. Take that to the bank.
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@Pacífica
Thank you for clearing this up. Now I understand some truths I had not previously known, to wit:
1. One has to have attended private school in order to understand the meaning of such concepts as transparency in one's relationships. Those educated in public school can't really understand such higher traits that comprise honor.
2. People who work hard for rewards are incapable of doing anything dishonorable, and so any suggestion that hard workers are capable of bad behavior is clearly false
3. One's very life is in jeopardy if one does not attain a justiceship on the supreme court. I had no idea that the lives of the other 7.5 billion of us were daily at moral risk because we don't sit on the supreme court.
4. Catholics are capable only of honesty and fairness. They could never be involved in deception and exploitation of others, especially in matters of sexual behavior.
Just one question, though, don't Catholics also believe in original sin?
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@Pacífica
Honesty and fairness if you are Catholic? Are you unaware if the sexual abuse in the church? The church does what it needs to save itself. I was raised Catholic and feel much better since leaving religion behind. Kavanaugh is fighting because a credible woman is fighting for her life. He is not owed the Supreme Court just because he worked hard. Dr. Ford is owed her chance for justice.
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@Pacífica
Honesty and fairness from the Catholic Church? Not according to the thousands of abused people worldwide.
Fighting for his life? How about the dead children from Parkland, killed by a gun that Judge Kavanaugh deems to be in common use and therefore not something that can be controlled.
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I suspected as soon as he produced his calendars that the issue of his drinking was being minimized. What I find troubling about and also not surprising is the fact that Kavanaugh is a mean drunk. Mean drunks shouldn’t be judges.
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I fully agree. It's impossible that Kavanaugh will be impartial.
But who is being fooled here?
That is the entire point of his appointment!
The hard right knows that Kavanaugh is one of them and will never "evolve" into a more nuanced thinker.
After the charade of an FBI investigation, he will be confirmed.
Kavanaugh could shoot someone on the Capitol steps and he would still be confirmed.
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And this is different from any other SCJ in the last 20 years?
The allegation, not the actual ability to be impartial.
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What if he did get appointed then when all the hooha has died down and he is working on a case - the defendants come quietly to him and make him aware there is another allegation in the pipeline which can be made to go away if he were to turn a blind eye to certain factors in their case?
How vulnerable would he be to coercion?
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They picked him because he is a partisan hack, their goal in fast tracking his nomination and restricting access to past documents that laid bare his true self was to keep it below the radar until he was seated. Now they will just go ahead and seat him anyway thus tainting any case he participated in.
Republicans have spent 30 years destroying America with their scorched earth win at all costs strategy, now we see it culminated with the Supreme Court reduced to partisan hackery.
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As usual, Professor Tribe is talking more about theory than reality.
I am opposed to the appointment of Kavanaugh , both because of his "conservative" positions and because of his character.
That said, it is certain that, if he is appointed, his character and his self-righteous judicial philosophy will cause him to reject any suggestion that he should recuse himself. He will maintain that his fairness and objectivity flow from the fact that he is right (correct) in his judicial ideology. He will also point to the fact that just about everything about him was known to the Senate that approved his appointment. What then? What are the chances that his right-wing colleagues will exclude him. How would his position be different from that of a civil rights attorney or a criminal lawyer or a corporate lawyer who is appointed to the Court?
Professor Tribe's analysis offers reasons why he should not be appointed. It is a mistake to offer hope that, if appointed, Kavanaugh would not participate in the types of cases noted.
8
Why doesn't Kavanaugh take advantage of this opportunity to become a commentator and host his own show on Fox? He likes to teach, passionately discuss conservative politics, consider right wing conspiracy theories, and he could earn millions more than an associate justice to live in a manner compatible with his ego and sense of entitlement. Conflicts of interests wouldn't have to be hidden and no recusals required. Kavanaugh would fit right in with his ranting attacks on left wing groups, the Clinton's, and the Democrats with his newly acquired fan base after testifying before the committee. Kavanaugh's life and that of his family certainly wouldn't be ruined. He would probably enjoy the life of a media superstar.
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Kavanaugh is a Republican. Republicans never recuse. A case that directly involved him, by name, could come before the Court and he would still participate.
And that is just one of the many reasons why he is unacceptable.
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When President Trump spoke publicly about the FBI's efforts to question every person willing to testify under oath, Judge Kavanaugh was headed under the bus. A replacement is in the wings, and she's undoubtedly a very conservative right-to-life woman, who will garner much Republican support. Sen. Graham will be first in line, with a laugh.
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@Lee: Nullification of the Establishment Clause is Ark of the Covenant to Evangelicals.
The problem is not the discussion on what a nominee should attest to be or not to be but that the Supreme Court is an anachronistic institution. It is like using morse code in the era of quantum computing to establish superpositioning of p-articles and just getting entangled forever.
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And what if his character we witness is exactly what republicans want on theSupreme Court for the purpose of being a driving force to steer the court where they what it to go rather than allowing the court to decide it’s own fate?
Professor Tribe eloquently summarised, in legal terminology, what most of us had already concluded, namely, that Kavanaugh disqualified himself from the Supreme Court on the grounds of both ill temperament and partisanship.
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Around 48.2% of voters at the 2016 Presidential election, voted for Hillary Clinton. It seems Brett Kavanaugh would have to recuse himself from cases involving any Democrat supporter, so close to half the US population would be able to request Brett Kavanaugh not hear their cases, due to his stated issues with Democrats.
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Wonderful to read the precise and knowledgeable words of an expert. But in the world we live in now is anyone going to listen to someone who is an recognised authority on constitutional law?
You have to have a very loud voice and be saying something that people want to hear to get listened to nowdays.
3
Very instructive opinions. I would add that his behavior strongly suggests other issues, particularly addictions. The defiant "beer" pledge, the blotched skin, the high-decibel sarcasm and rudeness would be more than enough to justify blanket recusal motions if Kavanaugh was a lowly trial court judge.
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@Doc: Don't discount the probability that this brawler has given himself chronic traumatic encephalopathy.
Interesting argument. Presumably, Mr. Tribe would suggest that Justice Ruth Bader Ginsburg should also recuse herself from any cases being brought by the U.S. government, since she was quite blatantly vocal in 2016 with her animosity toward then-candidate Donald Trump. You will recall that she threatened to move to New Zealand if Trump were elected.
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@David Ricardo, Justice Bader Ginsburg might well have to recuse herself from a case in which Donald Trump is personally involved, but not the U.S. Government. That would be akin to a Massachusetts judge not being able to participate in a case brought against the Commonwealth because he/she expressed resentment toward Charlie Baker when he ran for Governor.
Also, Justice Ginsburg did not imply there would be payback against the Republican party for say, their nomination of Trump, while Kavanugh implied he would exact retribution against the Left for causing him so much trouble.
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@David Ricardo
She saw a dangerous person coming into power and was rightly alarmed, as were millions of other voters.
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David Ricardo
And I believe she apologized for that, and said it was inappropriate. Let me know when Kavanaugh does the same.
"It is up to the president and the Senate to decide whether this situation makes him unacceptable as a nominee."
For some reason, I find this to be somewhat less than reassuring. We are depending on a President who, in his own eye, never makes a mistake and a supine Senate that is unable to tell him "no".
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Judge Kavanaugh's public disclosure, under oath, of his wide-ranging conflicts of interest should not only prevent his confirmation, but also result in his resignation (or forced removal) from his current position.
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