Like many, I watched the painful political circus surrounding Judge Brett Kavanaugh’s confirmation hearings. I paid closer attention than most perhaps because the outcome was highly personal. As a trial attorney, I appreciated that the integrity of our nation’s legal system was at stake, the very justice system to which I proudly dedicated 30-plus years of my life. I was appalled by what I witnessed. I expected more, and certainly America deserved better.
Before assuming that I may favor Judge Kavanaugh’s accusers, or vice versa, let me explain. My starting point is different than most. I am an institutionalist. Most attorneys are. As officers of the court, we take a solemn oath “to maintain the respect due to the courts of justice and judicial officers.” This oath requires all attorneys to conduct themselves truthfully and with honor, so as to protect the integrity of all courts, but especially our U.S. Supreme Court, the ultimate authority on federal laws and the U.S. Constitution. This was my threshold test against which I initially evaluated Judge Kavanaugh. And sadly, he failed. The recent U.S. Senate confirmation process was so flawed and partisan that Judge Kavanaugh had to appreciate that his confirmation, rightly or wrongly, would never be substantially accepted or respected by the public, and that as a result, the integrity of the Supreme Court would be compromised. To institutionalists, like me, this is unacceptable. Even the public’s perception of his character must be above reproach.
This is where my profession failed America. I expect lawyers to protect the integrity of the process and the institution. Judge Kavanaugh should have threatened to withdraw his nomination unless a full and complete FBI investigation was conducted into the alleged sexual assaults and all potential issues of perjury, even if President Trump, and Senators Charles Grassley, Orin Hatch, and Mitch McConnell, said “No.” He should have insisted on submitting to a polygraph to prove his innocence, even as unbecoming as it may be to a sitting federal judge. He should have listened on a real-time basis to Ms. Ford’s testimony to show respect for her, her pain, and for the legal process, again, even if he is innocent.
Instead, Judge Kavanaugh hid behind the Republican controlled Executive Branch and Senate Judiciary Committee. That’s not what worthy Supreme Court nominees do, or any judge for that matter. At our best, lawyers lead. At their best, judges set examples. Judges are role models for fairness, especially when fairness may come at their own expense. If he had shown this courage, this ethical and moral leadership, and led by example out of respect for our judicial system, he would have brought honor upon himself, and my profession. But he didn’t. Why? Because he was selfish; he put himself above the institution. Worse yet, his personal ambition has already left a stain on the Supreme Court that will never be removed.
Bottom line, a worthy candidate would have sacrificed himself for the greater good. Even if one totally discounts the sexual assault and perjury allegations — all of which have a measure of legitimacy that cannot be fairly discarded entirely regardless of one’s party affiliation — Judge Kavanaugh proved himself unworthy. He made it about him. The lawyers in the Senate made it about him. The media made it about him. Being appointed to the Supreme Court is the rough equivalent of the Pope’s status for Catholics. There can be no cloud; our faith in the institution is more important than the ambition of one man, or one party.
As harsh and unfair as it may seem to Judge Kavanaugh, even unproven allegations can be disqualifying, and should be disqualifying if the allegations have a measure of legitimacy. When seeking to be appointed to the Supreme Court, you are not presumed innocent until proven guilty beyond a reasonable doubt. The “tie” doesn’t go to the runner. You are only worthy of the appointment if you have the intellect (which Judge Kavanaugh did) and the unassailable integrity and demeanor befitting the exalted position. Judge Kavanaugh’s failure to lead, and his partisan, conspiratorial screech, proved that he is not.
And for what? Why destroy the integrity of an institution when many other qualified conservative judges don’t have his “baggage”? I strongly suspect most trial attorneys — or at least a significant percentage — believe that Judge Kavanaugh potentially lied under oath, such that the cloud over Judge Kavanaugh remains, and always will. This is the litmus test for me. Fair or unfair, if the cloud over his integrity remained, he should have withdrawn his name from consideration. Then, and only then, would he have proved to me that he respected my profession and our Supreme Court, as I do.
Whether Judge Kavanaugh assaulted Ms. Ford or other women, or drank excessively, or lied to Congress, matters to me. I wanted more information. But I don’t need to know the answers with certainty to take the side of the Supreme Court as its protector-in-chief. Put simply, Judge Kavanaugh failed to fulfill his professional oath, leaving us with a permanent Scarlet K on our Supreme Court. For that, I apologize. Lawyers should be better than this. The most worthy of us are.
For more content like this, read some of our past Final Words here.