Vincent R. Johnson[1]

There are two contests attracting national attention on the American political stage.  In one, a Beto O’Rourke is seeking to be elected to the U.S. Senate as a Democrat from Texas.  In the other, Brett Kavanaugh, federal judge in the District of Columbia, is seeking confirmation to a life-time position on the nine-member United States Supreme Court.

In both contests, the candidates have been charged with making serious mistakes in their youth.  However, they have dealt with that political “baggage” differently.

In the late 1990s, O’Rourke was arrested for driving while intoxicated.  He candidly acknowledges that his conduct then was wrong, and he apologizes for his mistake.  However, O’Rourke focuses on how lucky he was to be given a second chance in life, which ultimately allowed him to be elected to three terms in Congress.  O’Rourke’s words about the importance of second chances call to mind ideas of fairness and justice, and they reflect the candidate’s belief in the possibility of human improvement.  O’Rourke’s progressive message has resonated not just across Texas, but across the entire United States.  He is now a national figure.  Some say he is the next Obama.

In contrast, Kavanaugh has been accused of sexual violence and excessive drinking when he was in high school and college.  He denies that such conduct ever occurred and has never apologized for making such serious mistakes.  Of course, Kavanaugh argues that that he is a different, better person than he was more than thirty years ago.  However, persuading others of that fact became a lot more difficult a few days ago.

As Kavanaugh’s chances of sitting on the Supreme Court seemed to falter, he and his wife gave a television interview in which Kavanaugh repeatedly denied the charges of youthful sexual misconduct.  It was a sad interview to watch.  Both the judge and his wife seemed miserable.  Undoubtedly, they were miserable.  An endless stream of news coverage had shone a harsh light on Kavanaugh’s career as a public servant.  His reputation was in tatters.

According to news reports, President Donald Trump was disappointed by Kavanaugh’s television interview.  The judge seemed weak, demoralized, unwilling to fight, and beaten.  The day before the televised Senate Judiciary Committee hearings, which millions of persons watched, Trump suggested that if he did not like what he saw during the hearing, he might withdraw Kavanaugh’s nomination. That must have terrorized the judge.  When Kavanaugh appeared before the Senate Committee, he came out fighting.  That was a serious mistake.

Kavanaugh did not merely deny the charges of sexual misconduct long ago, he lashed out at political opponents, the Clintons, and the Democratic Senators on the Committee.  By turns, his conduct was demeaning, insulting, intemperate, and rash.  He spoke excessively about his fondness for beer.  It was a very unappealing performance. 

Of course, Kavanaugh was under tremendous pressure.  He was at risk of losing a Supreme Court seat he had spent a life-time trying to earn.  He must also have been sleep-deprived, because no one under such pressure could have slept soundly for weeks.  Kavanaugh had been sent a clear message by the president that he better fight, and so he fought.

Kavanaugh’s testimony earned praise from some, including the president, but many others were shocked.  Rather than a candidate with judicial temperament and judgment, they saw an angry man who repeatedly answered Senators’ legitimate questions with belittling responses that implied that he was the interrogator and they were the accused.

Kavanaugh’s testimony turned issues about his past into issues about his present.  Regardless of what he may have done decades ago, and regardless of how good a judge he has been in the past, the issue became whether he is fit to be a justice today on the nation’s highest court. 

The rules of ethics governing American judges clearly provide that a “judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”  A judge must treat all persons fairly and must perform official duties without bias or prejudice.

Kavanaugh’s testimony before the Judiciary Committee raised serious questions about whether he can meet this standard.

President Trump undoubtedly did not mean to set a trap for his nominee.  However, by signaling that he wanted Kavanaugh to fight, he laid the trap, and Kavanaugh fell into it.  The resulting issues about the nominee’s present fitness are serious.  If any judge in the United States engaged in such behavior while presiding over a court, it is likely that the judge would be subject to disciplinary proceedings and ultimately punished for bring discredit upon the judiciary. 

If Kavanaugh is confirmed, he will be hounded for years by questions about his fairness and impartiality, and the reputation of the Supreme Court will suffer.  President Trump should never have asked his nominee to fight for his judicial life in a political arena.