America Has No Way to Hold Accountable Someone With Kavanaugh's Power
By Dahlia Lithwick, Slate
23 December 18
The 83 ethics claims filed against Brett Kavanaugh that cannot be processed
underscore what SCOTUS lost this year.
What goes around comes around.
This was a sentence in then-Judge Brett Kavanaughs prepared oral statement
to the Senate Judiciary Committee on Sept. 27 in response to claims made by
Christine Blasey Ford about an alleged sexual assault hed participated in
when they were both in high school. After he uttered these words to the
committee and the world, many on the left saw this phrase as an open threat,
from the nominee, to use his perch to punish those seeking revenge on
behalf of the Clintons among the outside left-wing opposition and the
Democratic senators who advanced the accusation. As Jonathan Chait wrote in
New York magazine at the time: Here was a man apparently threatening
revenge on his political enemies, and asking for a lifetime appointment with
supreme power of judicial review with which to do it. Right before the
final vote to confirm the judge, Sen. Chris Murphy, D-Connecticut, tweeted,
After I spend my 5 min today with the single copy of the FBI report I will
be thinking of how Kavanaugh calls Democrats embarrassments, thinks we are
engaged in conspiracy against him on behalf of the Clintons, and promises
when hes on the Court what goes around comes around.
Reasonable people can differ. I didnt think what goes around comes
around, read in context, was as much a threat to punish Democrats and
liberals for their accusations, as it was a promise that someday, a liberal
judicial nominee will be subject to horrific and abusive scrutiny by Senate
Republicans, and that nominee will deserve it. Of course, Kavanaugh knows
more about how Senate Republicans already treat judicial nominees than most
of us; one of the many ethics complaints leveled at him was that when he was
in the White House he knowingly used emails stolen from Senate Democrats to
help advance George W. Bushs nominees. So I think we should take him at his
word when he says that Republicans on the Judiciary Committee will be
willing to lie and cheat to game the system.
But whatever the intention, Kavanaughs threat was a chillingly ugly one,
and his subsequent not-quite-apology in the Wall Street Journal was not an
adequate corrective. Thats why more than 2,400 law professors refused to
support him after that testimony. Thats why now-retired Justice John Paul
Stevens advocated, in response to Kavanaughs second round of remarks, that
he not be confirmed. As Stevens noted after the hearings, the testimony
suggest[ed] that he has demonstrated a potential bias involving enough
potential litigants before the court that he would not be able to perform
his full responsibilities. The legal test for such prejudice isnt whether
a jurist is actually biased but whether he has evinced even an appearance of
bias. No reading of Kavanaughs opening statement can avoid the appearance
of partisan political bias and the Wall Street Journal walk back did nothing
beyond claiming that the judge was emotional and out of control, something
were apparently meant to forgive with all the magnanimity hed shown his
own opponents.
This is immaterial, anyway. The real problem with the threat that what goes
around comes around is that its actually a lie. There were 83 ethics
claims filed against Kavanaugh during his confirmation process, the majority
of them based on the judges conduct during the process. These claims went
around and around and around again, but they never came to anything. The
D.C. Circuit Court of Appeals handed them off to Chief Justice John Roberts,
who in turn handed them off to a special judicial council panel of judges
from the 10th U.S. Circuit Court of Appeals, whichas was always
expecteddetermined this week that while the ethics complaints leveled
against Kavanaugh are serious, the panel must dismiss them all, because it
has no statutory authority over Kavanaugh, due to the fact that he is now
seated on the Supreme Court. And Supreme Court justices are not covered by
the 1980 code of conduct, the Judicial Conduct and Disability Act, or by any
code of conduct, because, well, they sit on the Supreme Court. So what went
around, rather than coming around, simply stopped.
Again, this was not a surprise. Ongoing scholarly debate about whether the
judicial conduct rules can be applied to sitting Justices as opposed to
lower federal judges, or applied to conduct when the individual was a lower
federal judge, suggests that there probably isnt an easy fix here. And at
this point, its not clear that its in anyones political interest to
launch polarizing impeachment hearings against Kavanaugh, who will now serve
for life.
The written complaints against him in the filings include claims that he
shouted and behaved disrespectfully during his Senate hearings; lowered
public confidence in the courts; lied under oath in 2006 about a Bush era
wiretapping program; lied under oath about receiving documents stolen from
Senate Democrats in 2002; lied about the alleged assault of Christine Blasey
Ford; lied about words and references in his high school yearbook; and was
evasive, condescending and aggressive in his Senate testimony, especially
toward female senators. We do not know which of the 83 complaints was deemed
serious by the panel. You can try to decipher it for yourself by reading
through the retracted public versions, which are available here. Its an
engaging read: One complaint noted that Kavanaughs conduct reflects on the
legacy of every judge in America.
The fact that there can be no accountability despite serious allegations
is, in some sense, the common theme of the time. Its part of a drumbeat
that insists: We cannot indict a sitting president; we cannot discipline a
sitting justice. If you are untruthful for a long enough period of time, you
can find your way into a job where there are no consequences for being
untruthful. One can hardly blame the panel for applying the statute as
written, or the chief justice for referring it to a panel that had no remedy
to offer, or anyone, really, for the fact that the conduct of September had
an expiration date of less than a week. One can hardly blame Ed Whelan for
fundraising off his advocacy efforts after just 30 days in the naughty chair
for promulgating a shameful and false doppelgänger theory. And of course the
fact remains that Christine Blasey Ford has moved houses four times due to
the threats against her life, which persist, while Kavanaugh is back to
coaching basketball. This episode thus concludes with the same wearying
lessons: The courts and the law are a serious enterprise; whatever the woman
was complaining about didnt even warrant an intellectually coherent
response; her testimony was credible but not truthful; her claims were
heartbreaking but not remediable.
Of course, to many millions of Americans, Fords testimony was credible and
compelling and persuasive. It went unrefuted by Republican claims that she
had somehow misremembered her assailant (made by Sen. Susan Collins) or was
part of a hoax (made by President Donald Trump) or that LOUD SHOUTING should
make it go away (made by Sen. Lindsey Graham). For so many Americans, the
enduring visceral impression of September was of her authentic pain and
Brett Kavanaughs snarling fury; the enduring visceral impression is that
she wasnt even taken seriously enough to be taken seriously.
The 83 letters of complaint just filed in the oh well bin of federal
judicial history give voice to this discrepancy: They make clear that the
public conviction that something profoundly disturbing had happened has now
been resolved only because it has been papered over. That papering over of
the truth was a team effort, bolstered by the White House, Fox News, Senate
Republicans, and now the federal judicial branch. The suffering of one man,
so furious at being called to account that he chose to undermine the
independence and integrity of the courts, became the story that carried the
day. The woman herself was an anomaly that didnt warrant a real probe.
But that didnt make it disappear. For the young female law students who
cant understand why they are still bothering with law school, the sexual
assault survivors still traumatized by the events of the fall, the millions
of victims wondering whether it will ever be worth it to report abuse by the
powerful, and everyone else who is still reeling at what all happened in
September, this public corroboration that the federal judicial branch has no
mechanism to police the federal judicial branch is just another bruise on a
still-open wound. In September, horrified Americans heard from Senate
Republicans that Fords testimony was not all that serious and so there
would be no consequences. This week, they heard that the conduct alleged was
serious and also that there would be no consequences. The lesson is
depressingly clear: When you are powerful enough, what goes around
eventually doesnt come around. It just goes away.
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