Indeed, “Vengeance” seems to be the operative word surrounding Democratic reaction to new charges leveled by two New York Times journalists who have authored a new book about Supreme Court Justice Brett Kavanaugh. We’re not judging whether or not Kavanaugh did or didn’t assault an unnamed student, as alleged, while a student himself at Yale. We’re certainly in no position to make such a judgment. Suffice to say, however, that the female student, who is the alleged victim, has no recollection of the alleged incident and has refused to be interviewed about the allegation. She has accused Kavanaugh of nothing.
The allegation mirrors the accusation made by former Yale student Deborah Ramirez during Justice Kavanaugh’s confirmation hearings a year ago at which Christine Blasey Ford leveled assault charges against Kavanaugh dating back to his days at Georgetown Prep High School in Bethesda Maryland. Suffice to say, Justice Kavanaugh vigorously denied the allegations and he was confirmed along party lines. No one has alleged any such misconduct by Justice Kavanaugh in the thirty-six years since he graduated law school.
Our point is not to defend Justice Kavanaugh. Frankly, we wish President Trump hadn’t nominated him in the first place. His equivocation about whether he would respect repeated established judicial precedent recognizing a woman’s right to terminate a pregnancy during the first trimester casts a dark shadow over Row v. Wade. We also found his dissenting opinion to be troubling in another case in which a lower court found that a pregnant undocumented teenage immigrant, who had fled abusive parents and was being detained by the government, was entitled to elect to have an abortion. The Trump Administration’s obstructive tactics risked forcing a delay that would have caused the pregnancy to run past the first trimester, which many observers believed was the government’s intention. The appellate court ultimately found for the pregnant teenage immigrant, in spite of Judge Kavanaugh’s position that the court, instead, should have ordered that a sponsor should first be found for the teenager, which was viewed by many as a further delaying tactic.
Our purpose is not to relitigate the Kavanaugh appointment, but rather to express our concern over the new groundswell of impeachment rhetoric emanating from prominent Democrats in Congress, including various presidential aspirants. Going after Justice Kavanaugh, yet again, over an alleged incident of which the alleged victim has no recollection and no interest in pursuing has, in our view, the likelihood of backfiring badly.
In their zeal to relitigate the Kavanaugh confirmation through impeachment, a process that cannot succeed, the Democrats risk creating sympathy for Kavanaugh and for the President who nominated him. Our concern is centered on the cries for Kavanaugh’s impeachment based on an assault which allegedly took place nearly forty years ago, of which the alleged victim has no recollection and no interest in pursuing.
Kavanaugh’s supporters claim that he is not the ultra-conservative originalist that many, including us, fear he is. They point to the high correlation between his voting record in United States Court of Appeals for the District of Columbia and Clinton appointee Merrick Garland’s voting record. We think that’s a spurious argument, given that they are both appellate judges.
As the non-partisan Congressional Research Service has observed, the difficulty in attempting to predict how a nominee will approach the job of being a Justice remains even when the nominee has had a lengthy federal judicial career prior to nomination. Federal judges on the courts of appeals are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law. As a result, the courts of appeals consider “many routine cases in which the legal rules are uncontroverted.” Because lower court judges are often bound by Supreme Court and circuit precedent, the vast majority of federal appellate opinions are, in fact, unanimous.
So, in our opinion, it is still too early to tell what kind of justice Brett Kavanaugh will be. But huge cases are headed to the Supreme Court involving issues, such as a woman’s right to choose, that still fester in the body politic as they have for decades. To date, the courts have been resolute in upholding a woman’s right to choose during the first trimester of a pregnancy. We have no idea how Justice Kavanaugh will vote on these issues. We do harbor considerable concern, however, that zealous Democrats who are pursuing impeachment based on new allegations that no victim is alleging will almost certainly fail. Antagonizing a supreme court justice with a weak case for impeachment seems, to us, to have the potential of causing much more harm than good. As they teach first-year medical students, “above all, do no harm.”