The Honorable Susan Collins
United States Senator
68 Sewall Street, Room 507
Augusta, ME 04330
RE: October 5, 2018 Speech on the Brett Kavanaugh Supreme Court Confirmation
Dear Senator Collins:
After much consideration, I have chosen to express my thoughts concerning your now-famous October 5, 2018 speech in the form of an open letter posted on my personal blog, Blindspot: A Blog about Law, Politics & Culture. When I started my blog in March 2017, I carefully selected the name. I had become increasingly persuaded not only that we all have blindspots, but also that we are almost invariably better off for having them pointed out. I am writing this letter to you in that spirit.
I have been a law professor since 1992, and in that time, I have focused primarily on Constitutional Law and Law and Economics, while teaching at two very different law schools: George Mason Law School, widely viewed as conservative or libertarian, and the University of Maryland Carey School of Law, often regarded as liberal or progressive. Although I am a life-long registered Democrat, I have always considered myself a political moderate, and I believe that this is amply reflected in my blog posts and scholarly writings.
Along with the nation, I anxiously awaited your 3 pm speech this past Friday. Many on the left immediately attacked you, with several maintaining that your prior assertions of uncertainty masked a fait accompli supporting the nominee. In my own brief post following your speech, I expressed a different view. I do not doubt that you struggled with this critically important decision. I also do not question the sincerity of your personal convictions. I especially appreciate your publicly defending the honor of ranking committee member, Senator Diane Feinstein (D. CA), your colleague and friend. At the same time, I believe that your substantive analysis is mistaken and that the norms you embraced are deeply problematic for important institutions in ways that I do not believe you necessarily intended.
Assessing your speech requires close study of two critical interlocking features: rhetoric and persuasive analysis. You are a skilled rhetorician. I am persuaded, however, that in this instance, the power of your rhetoric masked a problematic substantive analysis, with potentially lasting consequences beyond the confirmation of Justice Kavanaugh.
Early on in my brief career practicing law, I learned a powerful lesson that has remained with me ever since. The organizational structure of any well-crafted legal document must be careful and deliberate. The structure must always serve the substantive content, never the other way around. Your 43-minute speech (transcribed here) conveyed that you also internalized this critical insight. One consequence is that owing to the deliberate structure of your speech, those lacking critical analytical skills might wrongly infer that you have favorably resolved certain issues that you either altogether avoided or failed to discuss in meaningful depth.
The Kavanaugh hearings shifted their focus over four separate lines of inquiry: (1) judicial ideology; (2) the sexual assault allegations; (3) Kavanaugh’s judicial temperament; and (4) Kavanaugh’s judicial candor. By the time you gave your speech, the central focus among those opposing the nomination had clearly shifted. Although I have no hard data, my strong sense is that by then, the ultimate focus had centered onto factors three and four, temperament and candor, rather than factors one and two, judicial ideology and the merits of the sexual assault allegations. As one datum, my final blogpost of four on the topic was titled “On Character and Temperament.”
A speech that wrestled seriously with these critical concerns would not have labored through competing claims respecting allegations that, even with the benefit of the second FBI report, had become impossible to prove. Instead, it would have focused on issues related to behaviors witnessed in real time, namely judicial temperament and candor. Such a speech might also have explained the need to take questions of judicial ideology off the table, except perhaps in the most extreme cases, which you personally did not find present. Elections have consequences, and whatever one thinks of the man, and whatever lessons one draws from the peculiarity of the processes by which he was elected, the fact remains that Donald Trump was duly elected President. As such, he alone is empowered select Supreme Court nominees based on his perceptions concerning their judicial philosophy. The speech would necessarily acknowledge the very real pain exhibited by Dr. Blasey, and perhaps by Judge Kavanaugh, respecting the decades old sexual assault allegations.
You and I might have differing views as to the relative veracity of the two witnesses, but I believe that we are apt to agree on this: As is often the case, when confronted with sharply conflicting evidence, including witness testimony, the standards one employs to assess the underlying claims often control the ultimate disposition. Ultimately these standards are better understood as allocations of the burden of proof, rather than as firm commitments presuming guilt or innocence. In the context of a judicial confirmation, this is all the more complex. After all, this was not a judicial proceeding.
One problematic aspect of your speech, and I do not doubt your good faith in expressing it, is the statement as to the relevant standard by which you assessed the evidence. The preponderance of the evidence standard, lower than the criminal law standard of proof beyond a reasonable doubt, and higher than the baseline for an indictment, probable cause, sounds like a reasonable compromise. But in the context of a political process concerning a judicial confirmation, any formal articulation of a standard, especially by the Senator whose vote ultimately controlled confirmation, is misleading. Individual Senators might consider the sexual assault allegations as one factor among many, with the others weighing more heavily; or they might consider deficiencies in the evidentiary record so profound that they are unwilling to take a risk that the allegations might be true; or they might find his judicial ideology outside the mainstream; or they might vote as they do for any number of other reasons. A danger with a formally articulated standard is that those without the requisite training and analytical skills might assess the seeming judgment that evidence of sexual assault did not satisfy your preponderance standard as a vindication, or conversely, had the vote gone the other way, as proof positive of guilt. The vote to confirm or not confirm Judge Kavanaugh was not a judgment on whether he did or did not engage in sexual assault. I fear that many will view the matter otherwise, and I also worry that at least some Senators, now or in the future, will regard making such an assessment under your articulated standard as their personal responsibility, citing your speech. This would lead to the perverse result that a Senator might vote against a nominee against whom no such allegations are made, but be disinclined to vote against a nominee facing such allegations for fear of impugning his character in the event that the articulated standard of review is not met. If this seems implausible, consider that President Trump publicly apologized to Brett Kavanaugh at his swearing in and further stated that the Justice had been proven innocent, when clearly this was not the case.
My larger concern is that your speech failed to address the two strongest bases for opposing the Kavanaugh nomination, each of which is founded upon observed behavior by the judge himself. I do not believe it is necessary to detail each aspect of Judge Kavanaugh’s testimony that raises concerns about his judicial temperament. It is worth mentioning that I, along with more than 2400 other law professors, signed a letter expressing this concern, and that the ABA, whose earlier support you cited, requested time to reconsider, specifically on grounds of temperament.
Separate from temperament are concerns about candor, and these concerns are connected with the limited nature of the FBI follow-up investigation. This is also notable as it relates to formally articulating a standard of proof. In a judicial proceeding, in which such standards are firmly established, the parties would more freely have had the opportunity to introduce evidence going to credibility. Applying a preponderance standard to deliberately limited evidence, disallowing statements by persons who wished to speak to the FBI, only exacerbates the resulting misunderstanding as to what the ultimate vote demonstrated concerning the underlying allegations.
You certainly know as well as I do that Judge Kavanaugh declined to answer particular questions, turned questions against the Senators who asked them, opened with allegations of a left wing conspiracy linked to the Clintons, and more generally, behaved in a manner ill-fitting someone holding the great honor of being an Article III judge. In the aftermath of his testimony, many commentators on the right, along with several Republican Senators, took the view that virtually anyone wrongly accused of a horrible crime, perhaps especially attempted rape, should be deeply angry and should be expected to express that anger. With respect, I believe that this argument is fundamentally misleading.
No one could plausibly deny that a man falsely accused of sexual assault would experience, and perhaps express, intense anger. As previously noted, we do not know whether Justice Kavanaugh was false accused. Even so there is a larger concern. No matter how angry a nominee might be, the Senate Judiciary Committee should be able to command appropriate restraint, at a minimum respecting pure partisanship, with respect to an Article III judicial nominee. And this is all the more vital in the context of a nominee to the Supreme Court.
In my related post, I observed that “temper,” at the root of temperament, is a Janus word, or contranym, meaning that it simultaneously embeds two opposing meanings: (1) to express rage, as in a temper tantrum, and (2) to contain rage, as in “to temper one’s emotions.” Both are essential features of judicial temperament and character. We want our judges to experience the full range of human emotion as they confront realities that violate their core values and values that we, as a nation, rightly embrace. And certainly, those on the left or on the right, should appreciate that if Judge Kavanaugh was wrongly accused, which we cannot know, he will naturally experience great anger and pain. But just as surely, those on both sides should expect, indeed demand, that in the course of a Senate Judiciary Committee hearing, that anger should be “tempered,” in the sense of controlled, as would be expected of anyone appearing before a judicial tribunal.
We all know that many persons within our system of criminal justice are false accused, and yet, it is difficult to imagine that you, Justice Kavanaugh, or any other any Senator would condone in a related judicial proceeding the response of uncontrolled rage, a failure to respond forthrightly to questions, or having the witness spit back questions to those who ask them. Indeed, our system of criminal justice disproportionately operates against persons of color, and the #metoo movement, which you cite, amply demonstrates that our judicial system more generally too often gives inadequate recourse to women who are victims of sexual assault, who often internalize the consequences for years or decades silently and on their own. Even if not so intended, those defending, or merely condoning, Judge Kavanaugh’s expression of rage as righteous anger have signaled that, somehow, the anger of a potentially accused white men is more credit worthy than the anger of those African Americans, who are often falsely accused or who suffer disproportionate consequences even when legitimately charged, or of women, who for far too long have felt compelled to endure silently with their voices and stories suppressed.
In your speech, you devoted a single paragraph to the issue of judicial temperament, which I quote in full:
"Judge Kavanaugh has received rave reviews for his 12-year track record as a judge, including for his judicial temperament. The American Bar Association gave him its highest possible rating. Its standing committee on the federal judiciary conducted an extraordinarily thorough assessment, soliciting input from almost 500 people, including his judicial colleagues. The ABA concluded that his integrity, judicial temperament and professional competence met the highest standards."
Once more, you neglected to mention that on the day you gave your speech, the ABA sent a letter to Chairman Grassley explaining that in light of recent developments, it requested additional time to reevaluate its earlier assessment concerning Judge Kavanaugh’s temperament. You also stated that “Judge Kavanaugh forcefully denied the allegations under penalty of perjury,” yet you did not confront the judge’s evasiveness in answering questions concerning his drinking and possible blackouts, his behavior under the influence of alcohol, his sometimes questionable explanations of terminology used in his yearbook and calendars, and the many persons—none interviewed by the FBI—who let it be known that the image that Brett Kavanaugh painted of himself both in his FOX interview and before the Senate Judiciary Committee did not align with the Brett Kavanaugh that they personally knew in high school or in college.
To be sure, it is problematic to deny an appointment for most immature high school behaviors (here I am not referring to such serious allegations as sexual assault, which in my view, if proven, would be disqualifying). But the issue before the Senate was not simply how Brett Kavanaugh behaved in high school or college; it was whether he testified with candor before the Senate Judiciary Committee immediately prior to the confirmation vote. Once again, if we excuse misstatements under oath, on penalty of perjury or felony, based on the intensity of emotion, how do we reconcile the treatment we accord Judge Kavanaugh with that which we expect of others who are called upon to be interviewed by the FBI or other agencies, or to testify under oath in civil or criminal trials? Anger does not justify declining to answer questions or making false statements, and it certainly does not justify disallowing an investigation into whether false statements have been made.
I do wish to also address some of the issues on which you focused most of your speech: the veracity of the allegations and the question of judicial ideology. Although I respect the care with which you addressed these issues, I do not embrace your reasoning. Like you, I do not know the merits of the assault allegations. I found Dr. Blasey’s testimony extraordinarily compelling. I found Kavanaugh’s testimony self-righteous and often misleading. He would not endorse a further background investigation, and he too often resorted to reciting his academic achievements as if that answered questions as to character, drinking, or other potential youthful misbehavior. Without an opportunity to assess the veracity of the picture he painted of himself, it is not possible to know how credible he was as a witness. Outbursts of anger do not answer that question.
Finally, having taught constitutional law since 1992, I am compelled to make a few observations about your lengthy discussion as to Justice Kavanaugh’s jurisprudence. You stated that Judge Kavanaugh explained that stare decisis was not merely a judicial norm; it is also grounded in Article III of the Constitution. And you mentioned four cases that Judge Kavanaugh identified as singularly important precedents: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which established the power of judicial review; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which disallowed President Truman to seize and operate the steel mills in furtherance of the US interest in the Korean War; United States v. Nixon, 418 U.S. 683 (1974), which disallowed President Richard Nixon to decline to produce critical documents related to the Watergate break-in based on his own assessment of executive privilege; and Brown v. The Board of Education, 347 U.S. 483 (1954), which formally ended race-based public-school segregation in the South, although meaningful integration took fully a generation or more thereafter. You mentioned this in connection with concerns about the Supreme Court, with Justice Kavanaugh as a member, possibly overruling of Roe v. Wade, 410 U.S. 113 (1973). Roe established a woman’s constitutional right to terminate an unwanted pregnancy, a right that the Court sustained, yet notably modified 19 years later in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
Your presentation emphasized the importance to Justice Kavanaugh of two cases setting limits on presidential powers and one landmark case involving the desegregation of public schools. The implication was that because stare decisis is rooted in the Constitution, and because Justice Kavanaugh embraced a precedent that many view as a landmark Warren Court ruling, concerns about the risk of overturning Roe v. Wade are exaggerated. With respect, I think the implication rests on a number of unfounded logical steps. Whether precedent is a judicial norm or a constitutional command, no one believes it is absolute. Individual justices will weigh various considerations, for example as set out in Casey, as they deem appropriate. And although Judge Kavanaugh has described Brown as “the single greatest moment in Supreme Court history,” he has described Roe as "important precedent" and Casey as “precedent on precedent.” Earlier in his career, in an email discussing Roe, Brett Kavanaugh mentioned that precedent can be overturned. These differential assessments provide a legitimate basis for concern as to Roe’s status in Justice Kavanaugh’s hierarchy of precedent.
Likewise, although virtually all jurists rightly commend Brown v. Board of Education, the endorsement is quite uninformative. Supreme Court justices have long embraced juxtaposed understandings of Brown, as expressed most prominently in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007). In that case, the more conservative jurists interpreted Brown in a manner that disallowed any permissible use of race, a color-blind view, and the more liberal jurists construed it to permit voluntary efforts by school districts to employ modest race-affirmative measures as a means of counteracting a trend toward single-race schools. The same divide pervades affirmative action in state institutions of higher learning, a context in which Justice Anthony Kennedy, whom Justice Kavanaugh has now replaced, was the controlling justice on the Court, permitting the use of race, as seen in Fisher v. Texas (Fisher II), 579 U.S. __ (2016), as was Justice Sandra Day O'Connor in Grutter v. Bollinger, 539 U.S. 306 (2003), and Justice Lewis Powell in Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). Embracing Brown tells us little or nothing about Justice Kavanaugh's approach on these critical issues separating members of the Supreme Court. The common voting record that you cite as between Judge Kavanaugh and Judge Merrick Garland, Barack Obama's nominee to replace Justice Scalia, with Kavanaugh joining 96 percent of Garland's majority opinions, is also uninformative and potentially misleading. Like all circuits, the United States Court of Appeals for the D.C. Circuit follows Supreme Court precedent. The Supreme Court generally reviews those cases that divide lower courts, and it is here that individual judicial philosophies take on great importance.
Please allow me, in closing, to tell you what I had hoped you might say. I imagined that you would explain that in light of the powerful testimony on both sides, you simply cannot draw any definitive conclusion respecting Dr. Blasey’s sexual assault allegations. You are not in a court of law, the evidence was limited or incomplete, and it would be a disservice both to Dr. Blasey and to Judge Kavanaugh, to declare any public judgment on that issue, whatever your personal views. I further imagined that you might formally take judicial ideology off the table, observing that elections have consequences. You might have added that even if you personally disagree with some aspects of Judge Kavanaugh’s jurisprudence, there is no question that his record of professional experience amply qualifies him for a seat on the Supreme Court.
I thought you might then say that for the moment, let’s assume that Judge Kavanaugh was wrongly accused, which again, we cannot know. Giving him the benefit of the doubt, not as the basis for a judgment, but simply to contextualize the issues that are front and center, you would go on to say that we all must appreciate the intense anger that the judge experienced and his desire to express that anger in an effort to clear his name. But you would go on to acknowledge that in spite of that, you are deeply troubled by the problematic signal it would send to the nation were he to be confirmed for a seat on the Supreme Court. You would justify that conclusion by explaining it simply is not possible to elevate a person to that tribunal who has presented himself before the Senate Judiciary Committee, even under the most intense stress and scrutiny, as a partisan and who has done so in a manner that has inhibited the search for truth. This is especially so when the confirmation vote comes down to the competing words of two persons. You might also have added that to demonstrate that this is not about judicial ideology, there’s little doubt that President Trump will, in fact, appoint Justice Kennedy’s successor, and that he will do so from a list of judges that includes other extremely qualified candidates sharing Donald Trump's understanding of judicial ideology. And in closing, you might have said that you personally feel great personal pain for Judge Kavanaugh and his family, and for Dr. Blasey and her family, but that sometimes we make hard decisions in spite of, not because of, the impact on specific individuals. This is one of those times.
Early in my career, a younger, wiser colleague did something that upset me. Going into a faculty appointments meeting, we both strongly supported a candidate. Realizing that the room was near-evenly divided, my colleague voted otherwise. At the time, I was upset, and I let my colleague know. In hindsight, my colleague was right. Justice Kavanaugh was confirmed by an unprecedented 50-48 vote. The President won the Electoral College, but lost the popular vote by 3 million votes. The Senate is as near-evenly divided as possible. The House is also closely split and might even flip toward Democratic control in the upcoming mid-terms. And now the Supreme Court includes as a member a Justice who received the absolute minimal support, following the abandonment of the filibuster. You had the opportunity to say “enough.” Like my colleague, you could have demonstrated greater wisdom. Doing so might have cost you an election, but it might have earned you a very special place in history.
I appreciate your time, and I wish you the best. I know that this has likewise been stressful for you.