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Saturday, September 29, 2018

Judge Kavanaugh--A Different Perspective

I hadn't intended to blog about the Kavanaugh hearings, for various reasons, but an excellent story in this morning's New York Times  fact-checking Kavanaugh's testimony convinced me to do so.  I have never wanted Kavanaugh on the Supreme Court for the same reason that I didn't want Clarence Thomas there in 1991: that I knew I would not approve of the opinions he was going to hand down.  I believed Anita Hill's story, but I have to admit, at the risk of offending some readers, that I never thought she accused him of anything all that serious, since he neither touched her nor tried to punish her for failing to respond to his advances. She accused him of being a jerk, which is not a crime, although I know that courts have now defined it as creating an unfriendly environment, which is actionable.  On the court, Thomas has been even worse than I could imagine then.  Perhaps I should explain further: I was brought up to take politics extremely seriously, and non-violent sexual misbehavior among politicians much less so.  Today very few people take politics that seriously but many more, especially liberals, are obsessed with sexual misconduct.  This leaves me a bit out of step but I can't help it.

Kavanaugh has obviously been accused of more serious offenses, although all of them happened a long time ago and will be difficult to confirm.  Not for nothing did the sex crimes prosecutor that the Republicans hired to question her declare after the hearing that she would not have prosecuted Kavanaugh if the alleged offense had been brought to her.  I have been fascinated with the details of the case because, while I am 18 years older than Kavanaugh, I grew up in exactly the same neighborhoods, spent summers in them when I was in high school and college, and recognize both the geography and the ambiance in question.  I want to contribute one fact that many news outlets are confusing.  While the drinking age in Maryland, where he lived, was 21 in 1983 (and in 1965), 18 year olds could buy and drink wine and beer right over the border in D.C., and we did, a lot.  A junior in high school like Kavanaugh--who played two varsity sports--had plenty of older friends who would have been glad to buy for him.  I don't think I drank as much beer as he seems to have, but I drank plenty, too.

The Times story, by the way, introduced me to my first real hero of this sad controversy, a Yale classmate of Kavanaugh's (and a Republican!) named Lynne Brookes, who said that the judge had "mischaracterized his drinking."

'He frequently drank to excess,”'she said. 'I know because I frequently drank to excess with him.'

"Like Judge Kavanaugh, Ms. Brookes, a Republican, was an athlete who went to a prestigious graduate school after Yale. She disputed the implication in his testimony that he could not have overindulged because he was too busy studying and competing in athletics. 'It is completely possible to do both,' she said."

 The piece got me thinking because it shows very clearly how Kavanaugh gave misleading or pretty obviously incorrect explanations of many details that have emerged from his past, such as those in his yearbook entry.  Several have a clear sexual connotation, which he denied.  They reminded me of a few senior entries in the 1964 and 1965 yearbooks of my own prep school, Loomis, but ours were in essay form--written by classmates, not the subject himself--and any references to sexual conquests, of which there are not many, were much more discreet and never identified a woman by name.  18 years later, of course, a lot of barriers to sexual discussion had come down.  If Kavanaugh had testified that the yearbook editors had written his entry based upon various legends, some true and some false, I would have believed him. Instead he said he wrote them but denied their obvious meanings.

That got me thinking about who Kavanaugh might actually be--not in the context of youthful sex and drinking, but as a lawyer, judge, and potential Supreme Court appointment.  Here, it turns out, the comparison with Clarence Thomas is even more apt.  Both represent a relatively new kind of potential Supreme Court Justice: the career apparatchik and ideologue.  One could fairly say that the conservative Republican movement that has reshaped our political life and law over the last few decades created their career path, which really lacks any counterpart on the Democratic side.

Since Clarence Thomas came first, let's start with him.  Born in extremely modest circumstances and raised by a single parent and grandparents, he made his way from South Carolina to a Catholic seminary in Missouri, and then to Holy Cross in Worcester, Massachusetts, where he graduated cum laude.  He then attended Yale Law School where, he explains in his autobiography, he constantly faced doubts that he would have been admitted without affirmative action.  But while at Yale he met the man who shaped his career, John Danforth, then the Missouri Attorney General.  He was Danforth's assistant in Missouri from 1974 until 1976, when Danforth was elected to the Senate.  After three years in private practice, working for the Monsanto Chemical Company, Thomas joined Danforth as a legislative assistant in 1979-81.  By this time Thomas had become an ideological conservative, influenced by authors including Thomas Sowell and Ayn Rand.  In 1981-82 he was an Assistant Secretary of Education and then, from 1982 to 1990, he was Chairman of the US Equal Opportunity Commission.  Anita Hill worked for him there.

I did not remember that Thomas had replaced Robert Bork, of all people, on the District of Columbia Court of appeals in 1990, where President George H. W. Bush had placed him at the urging of Senator Danforth.  Justice Thurgood Marshall, the first black member of the Supreme Court, stepped down in 1991, and Bush tapped Thomas, then 43, to replace him.  I see no need to rehash what happened during his confirmation hearings.

On the court, Thomas has developed an increasingly conservative view of the Constitution which seeks to undo most of the increased role of the federal government in the economic and social life of the country as it evolved during the 20th century.  He has argued that the the federal regulation of both industry and agriculture are unconstitutional.  He was the first justice to favor throwing out the key section of the Voting Rights Act and lived to see a 5-4 majority come around to agreeing with him.  He defended all the extreme anti-terror measures of the Bush Administration, has sided with the government against criminal defendants in many cases, and has opposed affirmative action in several contexts.  He has argued that Roe v. Wade was wrongly decided and that the Constitution does not include a right to privacy and therefore does not protect gay rights.

Brett Kavanaugh and Clarence Thomas shared the Catholic religion as children, but that was about all.  Kavanaugh was born in the D. C. area to a father who was a lawyer and corporate executive, and a mother who originally taught high school but went to law school and became a judge after her only child was born.  He attended an elite prep school, as we all know, where he was evidently a very good student and a star athlete, and Yale College admitted him without any benefit of affirmative action.  He graduated cum laude in history--which at Harvard would represent a good, but not outstanding academic performance--but was then admitted to Yale Law School, which was a very high bar to pass.  He became a Notes Editor of the Yale Law Journal.  I have not been able to discover anything about his parents' politics but he might easily have been one of millions of Gen Xers who were disgusted by Jimmy Carter (who became President when he was only eleven) and inspired by Ronald Reagan.  In any case, at Yale Law School, he intersected with a powerful political-legal current.

At the conclusion of the dozen-year period between Thomas's entry into Yale Law School and Brett Kavanaugh's, in 1982, conservative Republicans founded the Federalist Society.  The Yale Law patron of the Federalist Society, Prof. George L. Priest, got to know Kavanaugh, partly, it seems, o the basketball court.  Graduating from Law School in 1990, Kavanaugh clerked for Judge Walter King Stapleton of the Court of Appeals for the Third Circuit.  While Kavanaugh was working for him, Stapleton wrote a majority opinion in Planned Parenthood v. Casey that essentially eviscerated Roe v. Wade, but which was overturned by the Supreme Court thanks to Justice Sandra Day O'Connor.  Prof. Priest then recommended Kavanaugh to another appeals court judge, Alex Kozinski.  Kavanaugh then interviewed for a clerkship with Chief Justice Rehnquist, but failed to get the position--the first serious setback, it would appear, of his whole life.

In 1992, fatefully, Kavanaugh held a fellowship in the office of then-Solicitor General Ken Starr, and followed that up with a Supreme Court clerkship with Justice Anthony Kennedy, whom he now hopes to succeed.  Leaving the clerkship in  1994, he went back to work for Starr, who was now the independent counsel investigating Whitewater, and, eventually, much else besides.  While there, we now know, Kavanaugh--now in his late thirties--zealously pushed for the investigation of conspiracy theories about the death of Vincent Foster, to see if it had been murder rather than suicide.  After the Lewinsky revelations he pushed for a most explicit and intrusive interrogation of President Clinton about the details of their relationship (which, I continue to believe, was of no business of anyone but the two consenting adults involved.)  In 1997 he landed his first job in private practice--as a partner in the Washington firm of Kirkland and Ellis, which had been Ken Starr's firm.  (All facts courtesy of Wikipedia.)  He returned to Starr's office after only one year and helped prepare the Lewinsky report.

Kavanaugh returned to Kirkland & Ellis in 1999, and became, among other things, the counsel for relatives of Elian Gonzales who tried unsuccessfully to prevent him from returning to Cuba.  In December 2000 he joined the legal team of George W. Bush to help stop the recount in Florida.  Then he joined the White House Counsel's office under Alberto Gonzales, and from 2003-6 he held other positions in the Bush White House.   Bush originally appointed him to the D.C. Court of Appeals in 2003, but the Democrats blocked him for three years, citing excessive partisanship--a judgment in which I must concur.  A Republican Senate confirmed him in 2006.  He immediately became controversial. He has served there until now.

To summarize: Clarence Thomas took 17 years from his graduation from Yale Law School to ascend to the Supreme Court.  He spent 3 of those years in private practice, 11 years working in Republican state and federal administrations, and one year as an appeals court judge.  If Kavanaugh is confirmed 28 years after his graduation, he will have spent 4 years in clerkships and fellowships, about 2 years in private practice, about 4 years working for Ken Starr, and 12 years as an appellate judge.  Before becoming a judge he participated zealously in several of the most partisan and sensationalist Republican offensives of our era:  the Starr investigation, the Elian Gonzales case, the 2000 Florida recount controversy, and, in the Bush White House, the design of detention and interrogation policies after 9/11.

This post is moving further afield than I anticipated but it behooves me to compare these career paths to those of other incumbent appointments.  Let us begin with the Republicans.  John Roberts, who was a very brilliant history student at Harvard as an undergrad (he graduated in 1976, the year I became a full-time faculty member), had a career similar to these two but at a more distinguished level.  He went from Harvard Law (1979) to two clerkships for an appeals court judge and for Chief Justice Rehnquist, and then to six years' worth of positions in the Reagan Administration in the Justice Department and the White House.  After just 3 years of private practice he became  deputy Solicitor General under George H. W. Bush.  Ironically, although Bush put him on the D. C. Court of Appeals in 1992, the Senate did not confirm him and the appointment lapsed.  He therefore spent the Clinton Administration in 8 more years of private practice, where he remained until 2003, when George W. Bush finally managed to get him onto that same court, after the Senate, then Democratic-controlled, had failed to confirm him in 2001-2.  In 2005, he became Chief Justice of the Supreme Court.  Samuel Alito graduated from Yale Law School in 1975, he held a circuit court clerkship for a year. Then he spent 4 years as an assistant U.S. attorney in New Jersey (1977-81), 7 years in the Reagan Justice Department,  and3 years as U.S. Attorney for New Jersey (1987-90).  George H. W. Bush then appointed him to the U.S. Court of Appeals for the Third Circuit and he sat there until 2005 when Bush's son appointed him to the Supreme Court.  He alone appears to have no experience in private practice at all among today's justices. (None of them, I believe, has ever run for any office of any kind, which is a much more serious gap in my opinion.)  Neil Gorsuch was a classmate of Barack Obama's at Harvard Law, graduating in 1991.  He held 3 years' worth of clerkships, two on the Supreme Court,  and then spent 8 years in private practice.  In 2005 he joined the George W. Bush Department with responsibility for all cases having to do with the war on terror.  Then he was appointed to the Appellate Court for the 10th Circuit where he served until last year when President Trump nominated him to the Supreme Court.  Roberts, Alito and Gorsuch have all been members of the Federalist Society.

Stephen Breyer seems to have graduated from Harvard Law in 1964, and he clerked for Justice Goldberg and held positions in the Justice Department from 1965 through 1967. He then appears to have joined the Harvard Law School faculty although he returned to Washington in 1973, working for the Watergate Special Prosecutor, and became chief counsel for the Senate Judiciary Committee in 1979-80.  Then he returned to Harvard for the next 14 years.  He was primarily a legal academic.  Ruth Bader Ginsburg did a two-year clerkship after law school (1959-61) and then held positions in law schools, chiefly as a professor, from 1961 until 1980, while simultaneously doing a great deal of litigation on behalf of women's rights.  President Carter appointed her to the D. C. Court of Appeals in 1980 and she remained there until 1993 when President Clinton put her on the Supreme Court.  She was a legal academic with no previous Washington experience.

Elena Kagan, who appears to have had one of the more brilliant college careers of those under discussion, graduated from Harvard Law in 1986 and clerked on the D. C. Appeals Court and the Supreme Court for two years.  She then was in private practice for five years, but left to serve on the University of Chicago law faculty from 1991 to 1995.  Her former boss, Judge Abner Mikva, brought her into the White House Counsel's office in `1995 and she worked in the Clinton White House until 1999.  President Clinton tried to put her on the Court of Appeals for the District of Columbia then, but Republicans blocked her confirmation.  The University of Chicago declined to rehire her but Harvard Law took her on and she served as a professor and Dean from 1999 (I believe) through 2009.  President Obama appointed her Solicitor General in that year, and appointed her to the Supreme Court in 2010.  Like Breyer, she had spent most of her working life as an academic, interspersed with stints in Washington, before reaching the Supreme Court at age 49.

Sonia Sotomayor, who joined the court a little earlier than Kagan, also had a brilliant career as an undergraduate at Princeton and graduated from Yale Law in 1979. She did not secure a clerkship but worked in the district attorney's office in New York for four years, and in private practice for three more.  She appears to be the only Justice who was appointed to the bench by a President from the opposite political party, George H. W. Bush, who choice her for a district court position in 1991 (she was confirmed the next year at the age of 38.)  After 17 years on that court she was appointed by President Obama to the Supreme Court in 2009. 

Clerkships and service in the executive branch have been the mains paths to the federal judiciary among these judges.  If Kavanaugh is confirmed he will be the 7th of 9 sitting justices who came from other positions on the federal bench.  He would also, it seems very fair to me to say, have taken the most partisan path to the bench and to the Supreme Court of any of them and he will have had the least real-world experience of any kind before becoming a judge.  He was a zealous Republican apparatchik--as was Thomas.  None of the Democrats on the court have had careers that were really similar to either of theirs.  And that remains, for me, the biggest reason why neither of them should ever have been chosen for the Supreme Court.


Ed Boyle said...

Finally someone not mud slinging. If however kavanaugh was very much into that type of partisan behaviour he deserves it in turn. Just desserts. Of course Clinton was quite a bad apple with women and came away fairly easily. Conservatives would have been more disgusted by this. If their current tactics are really just posturing it may hurt come November and divide the nation more greatly due to the increasing cynicism, hypocrisy, machiavellianism in politics.

I wonder on your basic disclaimer at the start. Times certainly change. Private life, emotional, sexual pressures rebuffed or even worse, in earlier time was similar to Trump's 'locker room talk' excuse, a sort of natural law of behaviour, to be swept under the carpet by mature adults. Nowadays it is the main course, like identity politics, amd serious diplomacy, thoughtful consideration of other side's concerns to arrive at meaningful legislation for the good of the nation, is a waste of time, as it is not lurid enough to destroy one's opponents.

In the end of course the bottom line is roe v wade and similar. It is an undeclared war. Maybe they really should leave lots of things up to states. Why so dogmatic. Lots of people could move away if dissatisfied with a conservative regime like texas with low taxes, laissez faire and mov to a liberal one with oppressive tax policies. Basically these are the extremes we are arguing here. Where did all the moderates go to? Why do politicians think so extremely linearly.

Bozon said...

Thanks for this useful summary.
I think that the Court has accrued too much power, but that is just one aspect of the situation. It is useless to complain about this now, merely because the Democrats are out of power and not the majority, as Leonhardt has done.

Further, although I do not share Thomas' political position, his points about certain privacy rights, and other things, not being in the constitution, seem to me to be correct, but, contrary to Thomas, I consider them flaws in drafting, not sacred originalist principles to uphold.

Regarding your observation here:
"...If Kavanaugh had testified that the yearbook editors had written his entry based upon various legends, some true and some false, I would have believed him. Instead he said he wrote them but denied their obvious meanings....", it seems to me that this kind of factual question regarding authorship, might actually be one that a correct answer (but still challengeable) could be had, assuming that one or more of those editors are still alive and coherent, and or assuming that one or more of them actually kept records.

All the best

Excessivelyperky said...

I find it fascinating that Kavanaugh believes that a) the president can never be indicted or subpoenaed (except for Bill Clinton and possibly other Democrats) and b) the president can determine a law's constitutionality and refuse to obey it in violation of any court rulings. I find it hard to believe any potential Justice would throw out Marbury v. Madison with the bath water, but there you are.

Bozon said...


I still think there are more skeletons in the Kavanaugh closet. They just have not popped out yet.

As Halloween, and All Saints' Day, approach, and in the aftermath of the hex now placed on him by witches, let's just hope that an accuser, lurching from his closet, does not turn out to be a witch herself!

All the best

Unknown said...

Professor Kaiser:
I want to comment on your book Postmortem, a copy of which I recently purchased from a Connecticut bookseller. I live about a 15-minute drive from the crime scene, which has changed greatly in the last 20 - 25 years. The train station is about the only thing truly familiar. In the 1970s I read nearly all the books you list about the subject. Attorney Robert Montgomery's book is about the only one I can think of which offers cover for the conviction of the two men. Some of its passages are so convoluted that they appear to twist logic inside out and backward. I've only just today begun your book.
I have the complete record of the trial in my personal library, although not the Holt edition. I discovered many years ago, probably sometime in the 1980s, a passage that I feel with modern measuring instruments could clear up the apparent discrepancies among the bullets allegedly fired from Sacco's .32 Colt automatic. No writer has mentioned it, and I've kept this knowledge to myself. Since I am ten years older than you, I feel someone who could make something of it should know. Again, I read somewhere perhaps 20 years ago the true Berardelli gun had been found in a South Shore pawn shop, thus freeing Vanzetti from the charge that he carried the guard's pistol when arrested. Incidentally, did you notice in your studies that Chief Stewart says while tracing down the two men he stopped to ask a woman if she'd seen them and that she said they asked her where the trolley stop was? How does that square with Cole's testimony that he picked up the two at the same trolley stop the night of the murder? If they'd been there before, then they knew where the trolley stop was and would not have had to ask.
But I'm well ahead of myself. When I've finished reading your book I'll write you again. Your book about FDR and period preceding WWII is one I'm looking forward to obtaining.