By Laurence H. Tribe From [HERE] Much might be said about Judge Brett Kavanaugh’s possible confirmation to the Supreme Court: in terms of his still only partly disclosed professional record, the allegations of sexual assault and his candor, or lack of it, in testifying before the Senate Judiciary Committee.
But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court.
His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament. They disqualify him from participating in a wide range of the cases that may come before the Supreme Court: cases involving individuals or groups that Judge Kavanaugh has now singled out, under oath and in front of the entire nation, as implacable adversaries.
Well before last week’s hearing, public officials and scholars of legal ethics were already debating whether a Justice Kavanaugh, with his unusually expansive views of presidential power, would be required to recuse himself from cases involving the legal fate of the president who nominated him.
This is not an abstract concern: I was a co-author of a Brookings Institution report concluding that conflicts of interest, and the appearance of such conflicts, would be pervasive in cases arising from the special counsel’s inquiry into Russian meddling in the 2016 elections.
The Supreme Court may have to consider questions about whether a sitting president can be indicted or subpoenaed, and what effect pardoning a federal offense would have on state charges for the same conduct — an issue bound up in Gamble v. United States, a double jeopardy case already on the court’s calendar. Many have argued that Judge Kavanaugh should not be confirmed unless he commits in advance to recusing himself from such cases. He has predictably refused to do so.
The accusations made by Christine Blasey Ford raise another order of concern. Some might argue that the unresolved cloud over his past would require a Justice Kavanaugh to recuse himself from any case involving sexual assault or harassment. That might well be, but I have in mind something more sweeping and fundamental.
To be sure, the rules of recusal that bind lower federal court judges do not technically apply to Supreme Court justices — at least according to the self-interested interpretation of the justices themselves. But those rules are not the only source of legal principles requiring all judges, of whatever court, to step aside when the institutional integrity of the judicial process is incompatible with their participation.
Apart from formally promulgated codes of judicial conduct, the Supreme Court has recognized that those whom our legal system entrusts to resolve controversies among litigants have a constitutional duty to step aside whenever a conflict of interest — or the public appearance of such a conflict — is so powerful as to erode public trust in the fair and impartial administration of justice.
In Caperton v. Massey Coal, the court held that a judge politically beholden to one of the litigants must recuse himself, and in Williams-Yulee v. Florida Bar, it held that the need to preserve judicial impartiality trumps the rights of judicial candidates to solicit campaign contributions.
Judge Kavanaugh’s attacks on identifiable groups — Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons” — render it inconceivable that he could “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, Naral Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.
For a Justice Kavanaugh to participate in internal court discussion or oral argument of such cases, much less vote on their resolution, would involve not just an undeniable appearance of conflict but an actual conflict, given his stated animosities and observation that “what goes around comes around.”
My decades of observing the court’s work and arguing cases there convince me that his required recusal would extend to a very broad slice of the Supreme Court’s docket during his lifetime tenure as a justice. That would leave the court evenly split in far too many cases, for years on end, if he were to recuse himself as required — or deeply damaged in the public’s trust if he were not.
It is up to the president and the Senate to decide whether this situation makes him unacceptable as a nominee. But should he be confirmed, it is impossible to see how Judge Kavanaugh could discharge his responsibilities as an associate justice of the Supreme Court.
Laurence H. Tribe (@tribelaw) is a professor of constitutional law at Harvard Law School and the co-author, most recently, of “To End a Presidency: The Power of Impeachment.”