Kavanaugh and Judicial Impartiality

The standard to keep in mind regarding the confirmation of a Supreme Court Justice is found in 28 U.S.C. section 455(a): “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Let’s set aside for now the fact that as drafted, the statute seems to apply only to men (did Congress really not envision women judges?).  Comments have been made recently about Supreme Court nominee Brett Kavanaugh being “innocent until proven guilty.”  That’s actually the standard for a defendant in a criminal trial.  Because we as a society recognize how terrible it would be to send an innocent person to jail, possibly for many years, our legal system has established a standard that is willing to allow many who are guilty of crimes to go free, because we find that result preferable to ruining the life of an innocent person through wrongful conviction.  Therefore, where the evidence establishes, for example, an 85 percent likelihood that the defendant committed the crime, a finding of not guilty is warranted, as the remaining 15% constitutes “reasonable doubt.”  Of course, wrongful convictions still happen in practice, but nevertheless, the theory behind a presumption of innocence and a standard of “beyond a reasonable doubt” in criminal proceedings remains a noble one.  

Not being allowed to serve as a Supreme Court justice is a far, far cry from being convicted of a crime and sent to prison.  Realize that there are only nine people in the whole country who are Supreme Court justices.  Many who have never been appointed to the Supreme Court have nevertheless gone on to lead happy, productive lives; some have amassed significant wealth, others have even held positions of trust and respect in society.

In choosing a Supreme Court justice, the ideal candidate is not someone who hasn’t been proven guilty beyond a reasonable doubt of some horrible act.  Rather, it’s someone whose impartiality is beyond questioning.  This is because in a democracy, faith in our judicial institutions is paramount.  Society will abide by judicial outcomes that they disagree with if they believe that the “wrong” result was made by impartial jurists who were genuinely trying to get it right.  Abiding by unpopular judicial decisions is the key to democracy.  It is what prevents angry mobs from taking justice into their own hands.  In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

A primary reason Republicans are so anxious to “plow through” (as Mitch McConnell, using the rapiest terminology imaginable, unfortunately phrased it) the nomination of Kavanaugh is because of how he might rule on abortion rights, an issue of great importance to the party’s base.  Nearly all of the Republican Senators seem to believe that as long as Kavanaugh has not been found guilty beyond a reasonable doubt of attempted rape, then he is fully qualified to serve as the deciding vote in taking away a right that has been constitutionally guaranteed to women for the past 45 years.

However, the three Republican Senators who at the last second requested an FBI investigation into the charges against Kavanaugh may have realized that their colleagues were not applying the correct standard.  Abortion rights involve a woman’s right to control her own body.  Yesterday, the country heard very detailed and articulate testimony from a highly credible and courageous witness.  What she described involved her being deprived of the right to control her own body, by a male who physically pinned her down, covered her mouth when she tried to scream for help, and tried to forcibly remove her clothing against her will.  Her violator then added insult to injury by laughing at her in a way that still haunts her to this day.  The credible witness stated that she was 100 percent certain that the male who violated her rights in this despicable way was Kavanaugh.

The evidence goes directly to the question of the candidate’s view of a woman’s right to control her own body.  The question that Senators should be considering is how much public trust there will be in the impartiality of a decision that involves such right in light of the past actions of the justice casting the potential deciding vote.

Senators who will nevertheless vote for Kavanaugh will say that in spite of the testimony, they cannot be sure of his guilt.  Or they may state that they are strongly convinced of his innocence.  Regardless, many people might reasonably question Kavanaugh’s impartiality based on the evidence they have heard.  (And remember, there have been two other women leveling similar accusations as well).  Even those who believe him innocent should at this point realize that in light of public perception, the appearance of impropriety should disqualify Kavanaugh from consideration.

Should those Senators deciding the issue ignore the above, we will all likely live with the consequences for decades to come.  Although it would not undo the damage, let us hope the public will respond quickly and decisively in voting the offenders out of office in November.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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