If I were a Senator having a bourbon on this Friday night what would I be thinking; thoughts on the Kavanaugh/Ford Drama

This blog is not political. It is about whiskey, and generally affiliated with the cocktail party and not the Republican or Democratic Party. However, all of the events over the past two weeks surrounding our Supreme Court have been weighing heavily on my mind, so I hope this side track into political and legal issues won’t be too bothersome to my friends. I hope folks that who are my friends of various political persuasions will read this whole thing before rushing to judgment and unfriending me on Facebook or whatever. But, this whole situation has been on my mind, and I wanted to write and share my thoughts. Being an extreme extrovert, I have no idea how to process things internally. So over a little Buffalo Trace bourbon and dinner delivered by Waitr as I imagine some Senator in Washington might also be doing after a grueling week, these are my thoughts.

By way of background I am a lawyer who has considered the possibility of a federal judgeship someday or a possible career in politics. I even interviewed with Senator Cassidy’s judicial commission for a judgeship on the U.S. Court of Appeals for the Fifth Circuit. It was an honor to have even been considered. I have watched with great interest the confirmation process involving Judge Kavanaugh, as most of America has. As most of you know, I am a staunch Republican, am active in the party, but am known for sometimes having my own unique views of things. My Dad is a federal district judge and I was working for him at the firm at the time he went through the confirmation process, and am probably more familiar than most with the inner workings of the sausage machine that turns out federal judges. I also clerked for a federal judge, albeit a bankruptcy judge appointed by the court of appeal rather than the President and confirmed by the Senate. Both the judge I clerked for and my father have been inspirational for me; scholarly, smart, hard working, but above all I have been inspired about how they strive to do the right thing and the consideration they give to the parties litigating before them and the parties yet to be before them. I have had the honor of appearing before the federal judiciary all over the country and in state courts across Louisiana as a lawyer. Despite our latest conflagration over the Supreme Court, the judiciary is, in my mind, the best and most functional part of our national and state government today.

I also am keenly aware that judges are human, and imperfect. I have been in front of some judges that were pretty bad because of their humanity and imperfections. But, I will say that I see our legal system and particularly our judges strive for justice almost every day. This struggle is never easy.

I have also been through a lot of life that has nothing to do with the law. I was a wild college fraternity president who became a churchman. I am a few years junior to Judge Kavanaugh, but I remember my high school and college days back then and the stuff we did would be unacceptable today. Hazing, drinking too much, lewd behavior, you name it. The times were only beginning to change back then, and all I can say is that they have changed dramatically since then. I often think this is for the good but some part of me bemoans the fact that some of those wild and crazy things we did were fun, and it’s a shame we can’t do those things anymore. However, my mother, a daughter of an Air Force Colonel and a grand daughter of a Rapides Parish Judge, always impressed upon me one thing – one person’s freedom has to stop where another person’s starts. The fun you have has to yield to the safety and dignity of the people around you.

So, I have a theory about what happened, and some ideas about what the Senate should do here. I urge you, my readers, to read the whole thing, and to not rush to judgment. My conclusions may surprise you.

I think Brett and Chrissy were at a house party in July of 1982, long before they were Judge Kavanaugh and Dr. Blasey Ford. I think they were both drinking along with the other teenagers that were there. I think Mark Judge was there too, drinking. Much like I did during my high school and college career. I think what happened was two drunk seventeen year olds thought what they were doing to a fifteen year old girl was funny and harmless fun; I do not think their intent was to actually rape Ms. Ford. Their drunken teenage selves merely saw this as rough housing, and often reminds me of such things that went on at my fraternity house in college or things I heard about.

In any event, the fifteen year old girl didn’t see what happened to her as fun with good reason. Pinned down, feeling powerless, she was scared out of her mind. Traumatized. And these two kids were laughing about it. She was only freed because Mark kept on trying to join in the fun by jumping on top of Brett and Chrissy.

What happened to Dr. Ford and what she felt is exactly why we don’t tolerate such behaviors anymore. But, back then, things were different. Think of the movie Animal House where one of the Deltas pulls off a girl’s dress during the homecoming parade or is a statutory rapist of the Dean’s daughter. The National Lampoon media of the time made this sort of behavior seem ok. Something to be emulated. Well, at some point our attitudes began to shift and we, as a people, began to realize that one person’s freedom to have fun has to yield to not causing extreme emotional and/or physical damage to someone else. It’s why fraternity hazing causes fraternities to get shut down nowadays. It’s part of the #metoo movement; it’s not just about stopping sexual predators; it is about treating people how they ought to be treated.

But, to insert myself into this, I could have easily been one of Judge Kavanaugh’s friends or fraternity bothers, young, drunk and a little bit crazy as a result. However, without saying too much, I have three daughters and a step daughter and could also be like Dr. Ford’s Dad, given what happened to one of them that was far worse than what Dr. Ford experienced.

So, where does that leave me on the issue of confirmation of Judge Kavanaugh to the Supreme Court? To me, there are two issues. First, is whether Judge Kavanaugh is a sexual predator who should not be on the bench. Second, should Judge Kavanaugh be on the U.S. Supreme Court.

As to the first issue, I am convinced Judge Kavanaugh is not a sexual predator. Given my theory above, the axiom that a tiger cannot change his stripes, that he has had more female law clerks as a federal judge than any other without any complaints of sexual harassment of any kind, that his record post-college has been impeccable, and his personal life after those times is, as Senator Cruz put it, boy-scoutish and boring, bears this out. He’s a guy that lived an Animal House lifestyle when he was young, settled down, had an illustrious legal career and children, and is the guy handing out food to homeless people after his nomination because he signed up at his church to do so before he was nominated. I posted that story to my Facebook, and I identified with him very much. I think he is a good person and I am convinced he would bring no dishonor to the court or the country if confirmed to the Supreme Court because of anything he might do outside of his judicial office.

So, if the issue before the Senate as to confirmation of Judge Kavanaugh is whether or not he is a sexual predator, then he should be confirmed.

But that isn’t the issue. It’s a disqualifying factor, but it’s not the issue.

The issue is whether he should be a Supreme Court Justice.

The Justices and Judges I have admired the most have always remained above the political fray, and let their own principles guide their decision making. One of the best examples of this is when Chief Justice Roberts upheld the Obamacare mandate as within Congress’ taxation power. The Republicans were furious at his decision. As much as I didn’t and do not like Obamacare and its individual mandate, I always thought it was a legal exercise of Congress’ taxing power, and took some pride among my colleagues who banter about such things when Chief Justice Roberts ruled the way he did. Justice Scalia is another prime example of principles trumping politics in his judging, although he wrote a scathing dissent to Justice Roberts on Obamacare. He decisions were often in line with Republican views but often they weren’t, because his principles often cut against the results the Republicans wanted in numerous cases. Moreover, his intimate friendships with Justices Ginsburg and Kagan further illustrate how he was above the political fray. Justice Kennedy, the quintessential swing vote on the Supreme Court and whom the Senate is considering confirmation of his replacement, clearly responded to cases with principles, rather than fealty to his Republican appointment. Those are the types of Justices who should be appointed to the Supreme Court. Consummate lawyers above the political fray, who are going to do their very best to discern the law and apply it to the facts, realizing what they do is not all about them.

Given how this process has played out, I do not think Judge Kavanaugh is cut from that same cloth. While on the U.S. Court of Appeals for the D.C. Circuit, relatively undisturbed by politics, his decisions have been from all accounts, principled, well reasoned, and would certainly qualify him to be a Justice on the U.S. Supreme Court. But, given what has gone on of late in the confirmation process, I fear he may not be above the political fray once on the Court. I know the timing of how the Democrats handled Dr. Ford’s allegations has been despicable. He and his family have been put through absolute hell in this process. He was right to be angry yesterday. But, it was at that precise time, his judicial temperament should have shown through. And it didn’t.

He made it all about him in the end. To me, the job of any judge is really about two groups of people, and neither of them are the judge or Justice. It is primarily about the parties before the court in the present case, and secondarily about every other party that will be before the courts in the future. To do that, it requires a judge to really squash so many of your own internal feelings to keep yourself out of it. But, this is necessary as justice hinges on it.

It is presumptuous of me to opine on what Judge Kavanaugh should or should not have done in this situation. But, here it goes anyway. I do believe my theory above is likely to be true, and if that is the case I think Judge Kavanaugh is telling the truth when he says that no sexual assault occurred. But, he has not acknowledged that something did occur, something that traumatized Ms. Ford, and that he had some part in it. All the political consultants, the White House, and so on I am sure have told Judge Kavanaugh what he should and should not do in this highly charged and political process, but these are not folks who think and act like judges.

There have been a lot of non-denial denials. When Senator Kennedy asked him to look him in the eye yesterday, and asked him if Dr. Ford’s accusations true, he responded and said they were inaccurate. Not untrue, but inaccurate. Inaccurate is not the same thing as not true or false.

When Kennedy asked about the other allegations, Judge Kavanaugh was far less equivocal saying these were not true, not even a scintilla, swear to God. To me, that is different than what he said about Dr. Ford’s allegations.

So, I think, assuming my theory about his encounter with Dr. Ford is true, which I think is reasonable given his non-denial denial, he should have acknowledged what happened, made clear he meant no harm, expressed regret for the trauma caused to Dr. Ford, and let his nomination fall where it may. He didn’t do that; instead he was in the political fray, including claiming this was retribution for his work for Kenneth Starr against the Clintons. I fear Judge Kavanaugh may not be able to stay above the fray as a Supreme Court Justice because of that. I have real concerns that he does not have the makings of a Justice Roberts, Scalia, or Kennedy.

However, maybe my theory about what happened is wrong; maybe it is a case of mistaken identity in the midst of trauma for Ms. Ford. I don’t believe that for a second, but suppose that is the case. A hypothetical, a common tool in legal thinking to make sure all of your bases are covered. Also, is it really fair to judge Kavanaugh’s potential to be a good Supreme Court Justice given the daily assault of scurrilous and often ridiculous allegations being made against him? That is really hard to say. I freely admit that I may be judging him too harshly under the circumstances, which are extremely tough.

There is one last thing that really has stuck in my mind that makes me doubt Judge Kavanaugh should be a Supreme Court Justice.

This one issue frankly makes me think he isn’t much of a lawyer, or at least a trial lawyer anyway. Yes, my criticism is indeed harsh but it is not unfounded.

During most of his illustrious career, he’s been a lawyer in politics, and even his brief stints in private practice at Kirkland & Ellis, he’s been working on important appeals and Amicus briefs. Principal author of the Starr Report. Filtering documents given to Presidents. A career I could never have hoped to aspire to.

However, I am convinced he has never tried an actual case as lead counsel. He made a huge mistake in preparing for his testimony Thursday. A rookie mistake. A mistake no lawyer worth his salt would ever make.

Judge Kavanaugh was asked during his testimony yesterday if he had watched Ms. Ford’s testimony before he came to the Senate Judiciary Committee to testify. His response was that he had not because he was busy preparing his own testimony, but that he would.

Big record scratch. What?

I have tried a whole lot of cases, both state and federal. After I got to the point where I could justify bringing a colleague with me to court, partner or associate, because the cases are big enough, I have always done so. Do I need the help in trying a case? No. Not really. Two heads are often better than one, but the principal reason I bring co-counsel with me to court for big trials is very simple. There needs to be a lawyer the client can talk to as they react to the witness testimony or the other lawyer’s arguments. Because they will; they will want to tell you what to say when it is your turn to argue, what questions to ask on cross exam, complain about the testimony, and so on. I can’t listen to all that. Because if I am lead counsel on the case, I don’t want the client or anyone else talking to me. I am listening to the witness testimony, what the other lawyers are saying, and observing the judge or jury’s reaction to the foregoing. Keenly. Intensely. Because you need to be alert and astute about the proceedings if you are going to win your case; you need to be in that moment to gauge everything that is going on. At the point before I cross examine a witness or start my case or argument I absolutely listen to what my co-counsel and client have to tell me. But in the middle of any proceeding I am not going to miss one word of what it is said. Not one.

Because if you are going to present your side of a case, you need to know, and I mean actually know, what the other case is. Not what you thought it would be, not what you planned on the other side thinking or doing, but what is actually being presented in the proceedings. Whether it is witness testimony or oral argument on appeal (including the Supreme Court), 90% of good lawyering is listening to what is going on. Not your brilliant arguments, not your thundering cross exam, not your meticulous preparation of your witnesses. It is about having your head completely in the game. Because, in that moment, you aren’t trying or arguing the case you thought about in your head beforehand. You are trying the actual case; you have to address what is actually being said. In my experience, what is actually said or argued is often different from what I thought was going to be said or argued. You often to have to re-evaluate your strategy on the fly. More often than not.

So, Judge Kavanaugh, in preparing for his confirmation hearing where he was to put on testimony and argument to rebut the allegations being made by Dr. Ford, didn’t bother to listen to what she had to actually say before he sat at that table and to make his own case.

He tried to make his own case without knowing what the other side’s case actually was.

That’s a fatal mistake as a lawyer. It also gives me great pause that a judge would do that.

A judge who doesn’t listen is not good. That’s basically your whole job once you cease being an advocate and put on the black robe.

So, do I think Judge Kavanaugh should be confirmed to the Supreme Court? Not that it matters, but I have to say no. Even though we might be of the same political persuasion on a lot of issues, and I am pretty sure he would rule my way on those hot button cases that consume so much of the time in the media and in politics. The thing is, those hot button cases are pretty rare even at the Supreme Court. As a lawyer and citizen I want to know that he’s going to do a great job in considering that vast bulk of the other cases that aren’t going to be reported on the news and cause massive protests outside of the Supreme Court, but that matter to real people’s lives because they have a real case or controversy before the court and the outcome of which will determine a few hundred more cases before the lower courts that also affect real people. A Supreme Court Justice really has one job; to read the briefs and listen intensely and keenly, which is the backbone of good judging.

Would Justice Cavanaugh be listening, or trying to figure out what to say next? Unfortunately, I think it will end up being the latter. For that reason, I do not think he should be confirmed.

3 thoughts on “If I were a Senator having a bourbon on this Friday night what would I be thinking; thoughts on the Kavanaugh/Ford Drama

  1. Of all the (too) many commentaries I have read on this debacle, none has struck me as more conscientiously thoughtful and equitable than yours. I write as one who has never been a “staunch” member of any political party, as well as one who has a preference for whisky over whiskey! Together with my skepticism about Kavanaugh’s seemingly disingenuous non-explanation of his Yearbook’s slang/code, your own specified reasons for concluding him less than Top Shelf have shifted me in the same direction. Thanks … sort of!

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