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How Will the Kavanaugh Confirmation Battle Affect His Judging Of the Accused?


Imagine yourself having been a soldier in Vietnam or Iraq or Afghanistan, sadistically tortured by the enemy as was John McCain. And assume you later become a U.S. Senator. Is it the least bit possible that your horrible experience will not influence your views – maybe your vote – on American policy to torture (e.g., waterboard) enemy combatants, even, perhaps especially, in ticking time bomb scenarios?

Or, you’re a young physician who never exercises and eats with great relish. You suffer a serious heart attack and your cardiologist tells you the facts of life. You follow his demanding regimen; but won’t your own near-death experience greatly influence how you counsel your own patients, even if cardiology is not your discipline?

Or, you’re a deeply conservative-thinking, sitting judge and candidate for a seat on the U.S. Supreme Court. You’re accused of criminal sexual misconduct. Maybe you’re actually guilty and admit it to yourself, and only yourself, in the dark night of your soul. Or maybe you’ve totally repressed the experience – you are guilty, but genuinely don’t remember it. Or maybe you’re a total innocent – actually innocent but “framed”. Or actually innocent, accused by someone who honestly believes that you are indeed the guilty perpetrator. Assume, too, that after the battle over your confirmation you become a Supreme Court justice. Guilty or not, the experience of the accusation has been devastating to you and your family. You experience unimaginable anger over what you see as an injustice having been perpetrated against you – indeed, you aggressively display that anger during your confirmation fight.

On the Supreme Court bench, you will be called upon almost daily to judge individuals charged with crime and the manner in which the investigation and prosecution against them was waged. You’ll also be required to decide whether statutes drafted by Democrats, or Republicans, should be upheld. And you may even decide whether a lower court judge’s credibility findings were warranted.

Will you be the soldier who brings to the Senate his wartime experiences or the now-educated doctor who brings his personal experience to his patients? Will you be more sensitive, empathetic perhaps, to those wrongly accused? Or will you seize the opportunity to punish defendants because left-leaning politicians, invariably sympathetic to them and their sorry stories, conspiratorially tried to bring you down? Will you invalidate statutes passed by a democratic legislature, regardless of their validity, to make sure they know whom they took on?

Any judge will say “of course not”. No judge worth his or her salt would ever admit to not being impartial. In fact, the judge may even somehow believe that his future decisions are sensible and totally in conformity with precedent (although at the Supreme Court, precedent may be changed). Still, is it at all possible, the iconic Justice Benjamin N. Cardozo argued, for judges to be impervious to certain forces that are “seldom fully in consciousness”?

They lie so near the surface . . . that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions which make the man whether he be the litigant or the judge.

So how does all of this impact the appointment of Justice Brett Kavanaugh, and his judicial thinking? Is it the least bit conceivable that his experience in the confirmation process will not be impactful on his judging? Would a person who has been wrongly, or even rightly, accused, not be moved to empathize with others who have themselves been forced to encounter the capacity of law enforcement to inflict punishing torment on accuseds during their investigations – criminal or non-criminal?

Notwithstanding his Wall Street Journal apologia, given the world view he expressed in his opening remarks – he was a victim of pent-up anger about the 2016 election, revenge on behalf of the Clintons and millions of dollars from left-wing groups – is it possible he hasn’t come to disdain criminally accused individuals if only because “the Clinton left” embraces the supposed downtrodden when they argue that their due process rights have been denied them?

Will his attitude, for example, toward polygraphs change? Indeed, while on the D.C. Circuit, he wrote about government agencies using polygraphs to screen for security clearances for work in intelligence and law enforcement. Yet, when asked by Senator Kamala Harris
whether he would take a polygraph, he demurred: He would do what the Committee wanted noting, however, that polygraphs are not admissible in court “because they’re not reliable”. So, let’s look closely at this: Dr. Christine Blasey Ford passed a polygraph – a fact used by Democrats against Kavanaugh in his confirmation hearing. Beforehand, Judge Kavanaugh had written that they were an effective tool, but as a nominee fighting for his reputation Kavanaugh explained that they were not reliable. How will his experience in having been confronted with Ford’s polygraph influence his future view of them on the Court? Will there be impactful forces, perhaps even below his consciousness, as Justice Cardozo might articulate it?

What about Kavanaugh’s testimony that Ford may indeed have been assaulted – but by someone else? Will his view of that “defense” while he was the accused not influence his future view of arguably false identification testimony? To argue that it would not would require that we essentially throw Justice Cardozo’s view into the trash bin.

Indeed, one might have been led to believe that after his confirmation hearing, Justice Clarence Thomas would have been more empathetic to those who stand accused. Nothing, though, indicates that he has any more compassion for criminal defendants than before Anita Hill emerged. Will Justice Kavanaugh similarly be untouched, or become even more hardened against accuseds – as, frankly, he had been in an almost-Torquemada approach to President Clinton when he was a Ken Starr acolyte? Will Kavanaugh talk himself into believing that he’s not like the run of the mill accused – and that he, alone, should have been treated better.

Judges and justices are human beings – they bring their everyday experiences, including confirmation fights and the biases and prejudices resulting from them, to the courtroom. It remains to be seen precisely what impact they will have on Justice Kavanaugh (even though he will likely, and unsurprisingly, never admit during oral argument, in written decisions or, for that matter, anywhere, that his personally odious experience had any influence whatever).

I, for one, wouldn’t lay odds that he will be miraculously transformed to a Paul who had been Saul.

Joel Cohen practices law at Stroock & Stroock & Lavan LLP and is the author of Blindfolds Off: Judges on How They Decide.

[Image via Fred Schilling/Supreme Court of the United States/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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