Wednesday, October 3, 2018

Just how do we assess judges, anyway?

The Kavanaugh hearings in the Senate over the past couple of weeks have highlighted a real conundrum, even though I haven't seen it discussed much in the mainstream media.

Judge Kavanaugh has been criticized for his strong response to the allegations against him.

Liberal critics ... said Kavanaugh showed he did not have the proper judicial temperament for the job.

“I thought his partisan remarks and his angry, unprofessional tone were not befitting the position he seeks,” said Jill Dash, a vice president of the American Constitution Society, a progressive legal group. “Putting someone on the court with a seething partisan vindictiveness will do real damage to the institution. It is not how we expect a Supreme Court justice, or any judge, to comport himself.”

Sen. Dianne Feinstein of California, the senior Democrat on the Judiciary Committee, who was criticized for holding Ford’s accusation in confidence for weeks at the accuser’s request, said Friday that she was stunned that Kavanaugh had joined in the Republicans’ political attack.

“Candidly, in my 25 years on this committee, I have never seen a nominee for any position behave in that manner,” she said.

He “yelled at Democrats,” she said, and his suggestion that Ford’s allegation had something to do with Democrats avenging the Clintons was “unbelievable.”

“This was not someone who reflected an impartial temperament or the fairness and evenhandedness one would see in a judge. This was someone who was angry and belligerent,” Feinstein said. “In stark contrast,” she added, it was Ford who “demonstrated a balanced temperament.”

Kavanaugh’s defenders said the judge was rightly angry at what they, too, characterized as false and unfair accusations that were designed to destroy his reputation.

“Both witnesses did a good job. I thought Brett Kavanaugh was compelling. He was angry because he was defending his honor,” said John Malcolm, a constitutional expert with the conservative Heritage Foundation.

“You spend a lifetime building up a reputation,” he added. “How could you not be angry to see your reputation destroyed with unfair, last-minute allegations that smelled of a partisan hit job?”

There's more at the link.

The obvious rejoinder to many of those critics is "Well, what do you expect?"  If I were in Judge Kavanaugh's shoes, my response would have been rather less temperate - and a lot more rude - than his was.  However, that's beside the point.  The question is, what are the objective, rational, universal standards that we expect all our judges, irrespective of political persuasion, to adopt, exhibit and implement in their judicial decisions?  Are there, in fact, any such standards at all?

It's clear that Republicans and Democrats in general don't share the same expectations for judicial conduct.  What complicates matters even more is that nowadays, there's no default party political standard anyway.  Both parties are fractured and fissured by internal dissent, traditionalists versus progressives, old-school versus upstart activists, male versus female (and any of the umpteen other politically correct genders out there), and so on.  If there's no core party identity, how can there be any core party expectations of judges and other public servants?

Eliyahu M. Goldratt, the well-known business management expert, said:

"Tell me how you measure me, and I will tell you how I will behave."

That's precisely the problem illustrated by the Kavanaugh hearings.  He has not been judged according to standards of judicial excellence, but according to standards of political correctness.  The latter have been applied in the form of character assassination, because there appear to be few (if any) judicial grounds on which to oppose his nomination - his qualifications and experience are exemplary.  Given that he (and, logically, any judicial candidate) would expect to be measured on the grounds of competence and qualifications in that field, why is anyone surprised that, when attacked on different, largely trumped-up grounds, with his family being dragged through the mire as well, his response was one of anger and rejection?  I think anyone in his or her right mind would have felt (and done) the same.

In future, potential nominees will look at the events of the past few weeks and realize that they will not be assessed fairly, according to logical and rational standards, but in a partisan and emotional manner.  That may put off many of them from accepting nomination . . . which might, of course, be precisely what at least some politicians hope to achieve.

The Senators conducting this inquisition are guilty of allowing the process to be hijacked for partisan purposes, with little or no regard to their responsibilities to the nation.  They exemplify pandering to their political base, seeking electoral advantage rather than the good of the country.  They're on the horns of a dilemma as they do so.  If they pander to one part of their party's base, they risk alienating another part or parts of it.  I think the progressive jihad against Judge Kavanaugh has very effectively alienated much of the more traditional Democratic Party base.  It appears likely that some of it may vote differently in November as a result.  Progressives, on the other hand, appear to believe that their supporters will be more motivated to vote because of this debacle.

Perhaps the politicians' dilemma is best summed up by a (possibly apocryphal) quotation attributed to French politician Alexandre Ledru-Rollin:

"There go my people, I must find out where they are going so I can lead them."

The American electorate is fractured into so many divisive elements right now, with few of them traveling in even approximately the same direction, that it must be a nightmare for politicians to figure out to which faction(s) they should pander.  If they get it wrong, they're going to be in a world of hurt come November.

Pass the popcorn, please.



Topher_Henry said...

If he had been emotionless and tempered, they would have criticized him for that. They would have said he had the temperament of a guilty man, and that someone who was truly innocent would have been more emotional in their own defense. Whatever his reaction was, it was decided it was wrong before he ever spoke.

urbane legend said...

That may put off many of them from accepting nomination . . . which might, of course, be precisely what at least some politicians hope to achieve.

This exactly what is desired. The left will use anything to achieve its agenda. How can it be that their supporters, many of whom in everyday life are decent people, don't notice this? Or care about it?

Jess said...

The Democrats want a judge that will only have opinions that match their agenda. Other than that, they can eat puppies, push old people into traffic, rape goats, and sell their children into slavery. Of course, they have to be as discrete as Bill Clinton.

McChuck said...

The Democrat senators did not "allow the process to be hijacked.". They arranged the process to suit their liking and their goals. They carefully selected the means to suit their ends.

Dad29 said...

The Senators conducting this inquisition are guilty of allowing the process to be hijacked for partisan purposes, with little or no regard to their responsibilities to the nation. They exemplify pandering to their political base, seeking electoral advantage rather than the good of the country.

A cynic might say that the above applies to both sides.

If K. fails to obtain confirmation, Trump & Co. will win a bunch of Senate seats and probably keep control of the House. If K. DOES obtain confirmation, same results.

Trump (and McConnell) played this with great expertise. They knew exactly when to introduce the hearings, they knew that the Liar's Party would come up with a Clarence Thomas obstruction, they knew it would be fake, they knew the Liar's Party would over-play its hand and swat a hornet's nest in so doing....

What? You're surprised??

LindaG said...

I wonder that every time they carry voters who should be conservative according to how they act and believe, but then vote liberal.
I just don't understand.

LindaG said...

And the Republicans let them.

danielbarger said...

It matters not how Judge Kavanaugh acts or reacts. Because to the left it does not matter. ANYTHING he says or does is "evidence" he is unfit for office. And if he says NOTHING he is unfit. NEWSFLASH!!!
Nobody that does not openly embrace communism/socialism/progressivism will EVER be qualifed to hold ANY office or public position as far as the left, the demonrats or the media whore are concerned. And as for "standards".....if it were not for double standards the left would have NO standards whatsoever. They only have one rule.....WIN. By any means necessary. Fair or unfair, legal or illegal, moral or immoral. As long as they win anything they do is acceptable.

Jonathan H said...

it doesn't surprise me that the Democrats are attacking Kavanaugh any way they can - what DOES surprise me is that they DIN'T do it to Gorsuch.
Some of these accusations, like the ones brought against Trump during his campaign, are so patently false that they (or similar ones) could be brought against anybody - and I'm sure they will continue to bring them against anybody that stands up against them. It isn't just happening at that level; it is also happening in schools around the country, aided and abetted by school administrators and local police. Girls and women around the country are making false accusations to get back at men or to hide their own misdeeds; they have been for years and it is getting worse now. Here is the story of someone it happened to 30 years ago:

Jim22 said...

If Kavanaugh is confirmed he will have every reason to vote against every case that is supported by the progressives. He knows, as well as any other, just how mean spirited and evil they are. After this hearing I would expect him to obstruct every thing they desire. Actually, it doesn't make any difference if he's confirmed to the highest court. If not he still has his seat on the federal court he would have had to vacate to join the Supremes.

HMS Defiant said...

To paraphrase Monty Python and the Holy Grail, "how do you know he is a republican judicial nominee?" Answer, "because he's covered with shite."