For years, conservatives have decried what they view as “activist judges”, which in their mind usually means a judge who takes a side against conservative orthodoxy, but by definition would mean a judge that has an agenda beyond ruling on the basis of law.
Here is Ted Cruz decrying the Supreme Court’s ruling to allow gay marriages in 2014:
“This is judicial activism at its worst,” Cruz said in a statement. “The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”
Here is Jeff Sessions decrying court injunctions that have been issued to stop some of Donald Trump’s most heinous policies:
“There is always a serious risk that some judges will fail to respect our representatives in Congress and the Executive Branch and, instead, claim the power to set policy.
The new vehicle used by activist judges to direct executive policy is the issuing of nationwide injunctions.”
These are but a couple of hundreds of examples of conservatives claiming that they are against the idea of a judge having any type of political agenda.
Yet, conservatives are nearly unanimous in their support for Brett Kavanaugh to be confirmed to be a Supreme Court Justice. The same Brett Kavanaugh who recently prepared and delivered these remarks to the Senate Judiciary committee:
KAVANAUGH: Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation.
This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.
And as we all know, in the United States political system of the early 2000s, what goes around comes around.
These remarks appear to point to Brett Kavanaugh having a pretty clear agenda: revenge upon his left-wing enemies.
And it isn’t just these remarks that illustrate this potential agenda. It is also Brett Kavanaugh’s history, starting with his role in conservative attempts to take down Bill Clinton:
Brett actually makes a cameo appearance in my memoir of my time in the GOP, “Blinded By The Right.” I describe him at a party full of zealous young conservatives gathered to watch President Bill Clinton’s 1998 State of the Union address — just weeks after the story of his affair with a White House intern had broken. When the TV camera panned to Hillary Clinton, I saw Brett — at the time a key lieutenant of Ken Starr, the independent counsel investigating various Clinton scandals — mouth the word “bitch.”
But there’s a lot more to know about Kavanaugh than just his Pavlovian response to Hillary’s image. Brett and I were part of a close circle of cold, cynical and ambitious hard-right operatives being groomed by GOP elders for much bigger roles in politics, government and media. And it’s those controversial associations that should give members of the Senate and the American public serious pause.
Both Ted and Brett had what one could only be called an unhealthy obsession with the Clintons — especially Hillary. While Ted was pushing through the Arkansas Project conspiracy theories claiming that Clinton White House lawyer and Hillary friend Vincent Foster was murdered (he committed suicide), Brett was costing taxpayers millions by pedaling the same garbage at Starr’s office.
A detailed analysis of Kavanaugh’s own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to Foster’s family and friends, or even common decency.
Kavanaugh was a principal author of the Starr Report to Congress, released in September 1998, on the Monica Lewinsky–Bill Clinton sex scandal; the report argued on broad grounds for Clinton’s impeachment. Kavanaugh had urged Starr to ask Clinton sexually graphic questions, and described Clinton as being involved in “a conspiracy to obstruct justice”, having “disgraced his office” and “lied to the American people”. The report provided extensive and explicit descriptions of each of the President’s sexual encounters with Monica Lewinsky, a level of detail which the authors described as “essential” to the case against Clinton.
Then, after taking part in conservative efforts to impeach Bill Clinton, Brett Kavanaugh took part in efforts to stop the Florida recount during the Presidential election of 2000, so that George W. Bush could be elected President:
This time, it was the 2000 presidential election between George W. Bush and Al Gore. With the Florida votes still undecided in December because of a state-mandated recount due to the razor-thin margin of the election results, Kavanaugh joined Bush’s legal team, which was trying to stop the ballot recount in the state.
The American Bar Association provides guidelines for how judges should act with regards to political activities:
(A) Except as permitted by law,* or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate* shall not:
(1) act as a leader in, or hold an office in, a political organization;*
(2) make speeches on behalf of a political organization;
(3) publicly endorse or oppose a candidate for any public office;
(4) solicit funds for, pay an assessment to, or make a contribution* to a political organization or a candidate for public office;
(5) attend or purchase tickets for dinners or other events sponsored by a political
organization or a candidate for public office;
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements from a political organization;
(8) personally solicit* or accept campaign contributions other than through a campaign committee authorized by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others;
(10) use court staff, facilities, or other court resources in a campaign for judicial office;
(11) knowingly,* or with reckless disregard for the truth, make any false or misleading statement;
(12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or
(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A). candidate, any activities prohibited under paragraph (A).
The main theme of these guidelines is to ensure that judges are not seen as being an operative of a political party, in order to maintain the public’s confidence in the judiciary as a separate branch of government, and as exemplified by another guideline of the American Bar Association:
A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Brett Kavanaugh’s history as a Republican party operative who worked to impeach Bill Clinton and elect George W. Bush would seem to go against these American Bar Association guidelines for someone to become an impartial judge.
This isn’t the first time this issue has come up regarding Brett Kavanaugh. Twelve years ago, when Brett Kavanaugh was nominated by George W. Bush to serve as a judge on the circuit court of appeals (a nice thank you to Brett for his work on the Florida recount), these same concerns about Brett Kavanaugh’s impartiality were brought to the fore, by both Democrats and, in fact, the American Bar Association:
Democrats for three years had been blocking President George W. Bush’s 2003 nomination of Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. They argued he was biased, as shown by his work as a lawyer for Bush’s presidential campaign, for an independent counsel’s investigation into President Bill Clinton and for other conservative causes.
In May 2006, as Republicans hoped to finally push Kavanaugh’s nomination across the finish line, the ABA downgraded its endorsement.
The group’s judicial investigator had recently interviewed dozens of lawyers, judges and others who had worked with Kavanaugh, the ABA announced at the time, and some of them raised red flags about “his professional experience and the question of his freedom from bias and open-mindedness.”
“One interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship,” the ABA committee chairman wrote to senators in 2006. “Another interviewee echoed essentially the same thoughts: ‘(He is) immovable and very stubborn and frustrating to deal with on some issues.’”
These concerns from twelve years ago seem to have been publicly validated by Brett Kavanaugh’s recent nationally televised screed against “the left”, “the Clintons”, and “left-opposition groups”, followed by his noting that “what goes around comes around”.
Conservatives, who have for years criticized judicial activism, have put forth a nominee for the highest court in the land who has a history of activism, and who has recently put forth an agenda that would appear to be based on revenge toward “the left”. This is amazingly irresponsible. If Brett Kavanaugh is confirmed, he will do what the American Bar Association’s guidelines for the judiciary are designed to prevent: he will erode the public’s confidence in the independence, integrity, and impartiality of the judicial branch, likely for decades to come.