My colleague Bill Widen asked me to post this for him. (I added the photo.)
Honor Him
(cc: Senators Flake & Kyl)William H. Widen
We respect John McCain for choosing honor over convenience under the extreme conditions of captivity and torture. A great man filled a large office. We too often fill large offices with small people—people who fail the test even when the test posed is less severe. Failing the test of telling the truth under oath—even when uncomfortable—might result in being disbarred for perjury. The testimony of Dr. Ford at the confirmation hearings for Judge Kavanaugh was compelling. Her testimony raises a serious question about the truthfulness of Judge Kavanaugh under oath. To believe her is to believe that Judge Kavanaugh is either lying about the event or lying about the degree to which, as a young person, he allowed alcohol to impair his judgment and memory.
Jeff Flake recently expressed support for Judge Kavanaugh while simultaneously expressing serious doubts about who to believe. He expressed a wrong idea about the standard required for Senate advice and consent—stating that due process and the rule of law required his support because allegations against Judge Kavanaugh were not proven. Tragically, this is the wrong standard.
A public office is not the property of its holder (or would be holder). The standard for Senate advice and consent to hold office is to error on the side of protecting the Republic. This standard will deny office to some unjustly, but that is the price paid by those who would seek and hold public office. The Federalist Papers make this abundantly clear. Impeachment proceedings illustrate the point most clearly. An office holder, such as a President, should be removed, with the Senate erring on the side of removal to protect the Republic. Only after removal do we apply notions of due process to protect the former office holder in his life, liberty and property. The humiliation of removal from office goes with the territory of submitting to service, but due process protects thereafter. So too with considerations of appointment to office. The failure to appoint may be humiliating and unjust—but there is no remedy for this. The public offices are our offices, not the property or entitlement of individuals. No appointment should be made here—even though, in fact, this may work an extreme injustice to Judge Kavanaugh. In the face of serious doubt, the exercise of Constitutional authority requires a “no” vote.
One cannot suspend Constitutional duty to properly exercise Senatorial advice and consent to exact a political price on fellow senators for bad behavior—that is a reckoning for another time. Bad behavior by small people is a bipartisan activity. The cycle of tit for tat must stop. When a large office is filled by an ordinary person, sometimes the ordinary person rises to the demands of that office by choosing honor when confronted with adversity. Allow a Gladiator moment in this American tragedy. John McCain was a soldier of the Republic. Honor him!
Professor William H. Widen
University of Miami School of Law
I agree with the author’s conclusion, but not how he gets there. For example, this is not true: “To believe her is to believe that Judge Kavanaugh is either lying about the event or lying about the degree to which, as a young person, he allowed alcohol to impair his judgment and memory.”
Memories fade. And eye witness accounts, even fairly fresh ones, are unreliable. Worse, over time, memories change. It is entirely possible that Ford honestly believes one thing and Kavanaugh honestly believes another. And still possible that an entirely different third set of events is actually what transpired. After 36 years, and on this record, there is simply no telling.
I would argue for a “no” vote because Kavanaugh’s statement and testimony yesterday, while powerful and largely convincing (I, like the author, believe that his testimony about his youthful drinking and shenanigans was dishonest, but I also believe that it was largely inconsequential) showed a man who has, probably as a result of the crucible of this process, become so bitterly partisan that he could never be expected to act as an unbiased neutral on the Court.
I am sure that the Justices on the Court have their share of human bias. But Kavanaugh showed such a degree of anger and bitter partisanship (probably justified at this point) that I think he has disqualified himself from serving on the Supreme Court.
I think the real lesson from the hearings is Kavanaugh’s behavior when he is challenged: he is evasive, angry, tearful, self-pitying, whiny, disrespectful, egotistical (it’s a conspiracy!), entitled, and offensive (as in going on the). I know the other SCOTUS justices don’t get a vote, but I can kept imagining them watching the display and thinking in dismay, “I might have to work with this guy?”
I don’t agree that there is no telling. That’s what the FBI is for. They can certainly take the clues we have and build a report that improves the balance of probability. In any case, this isn’t a court of law that needs to establish guilt beyond all reasonable doubt; I do believe due process is important. But here, the question is whether BK is fit to serve in the Supreme Court. For that, the onus of proof is in fact on him. As Samantha Bee said this week, “Millions of people are not on the Supreme Court and their lives are not ruined.” (Or something close to it.)
wg