Tribe on Kavanaugh and Judicial Recusal

In a New York Times op-ed, “All the Ways a Justice Kavanaugh Would Have to Recuse Himself,” Laurence Tribe asserts that statements Brett Kavanaugh made during his nomination hearing should disqualify him from hearing cases involving left-of-center litigants.

Professor Tribe focuses in particular on this passage in Judge Kavanaugh’s opening statement:

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. . . . This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Accordingly, Tribe argues that canons of judicial impartiality demand that Kavanaugh recuse himself from any future case involving Democrats or liberals. Here’s the heart of Tribe’s argument:

“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.”

Tribe makes an important point about the necessity of judicial impartiality. But it is also true that a similar recusal argument could be made with regard to Justice Ruth Bader Ginsburg.

During a July 2016 interview in her Supreme Court chambers, Justice Ginsburg launched an extraordinary public attack on Donald Trump, declaring:

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

She went on to say that if her late husband were alive, he would advocate moving to New Zealand rather than live in America under Trump.

Ginsburg continued the attack in two other interviews. In a CNN interview, Justice Ginsburg called Trump a “faker.”  She even chastised the media for its insufficiently critical coverage of Trump, asserting:

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

During an Associated Press interview, Ginsburg reiterated her fear of a Trump victory, proclaiming: “I don’t want to think about that possibility.”

Neither Kavanaugh’s opening statement nor Ginsburg’s election commentary reflected well on the Supreme Court. The politically-charged nature of their remarks only served to fan the flames of ideological polarization and partisan acrimony, two things the country already has in distressing abundance. The Kavanaugh and Ginsburg episodes also raise a worrying possibility that the pervasive erosion of political norms has now begun to extend to judicial norms. Regardless of where one might stand on the ideological spectrum, no one should welcome such a development.  

In an era of toxic partisanship, the legitimacy and impartiality of the courts has never been more important. Although Supreme Court justices cannot be forced to recuse themselves, they need to keep in mind at all times the critical and unique role they play in our system of government. The rule of law depends on public confidence in the fairness and objectivity of the judiciary. Justices and nominees forget that fact at their peril, and at our peril.    

The complete transcript of Judge Kavanaugh’s opening statement is available here and Professor Tribe’s New York Times op-ed is available here.

Comments

[anon]

ONe cannot do anything other than completely agree that the labeling of the SCOTUS members as "Republican" and "Democratic" justices, the sanctification of "RBG" (which has clearly gone to her head) by the left, the truth of the remarks by KAV about the forces arrayed against him, etc., signal the demise of the SCOTUS as an esteemed institution.

The question, who to blame?, will be answered, predictably, differently by persons wearing different team colors. The red will blame the blue, and the blue the red.

All that said, vicious attacks on KAV for pointing out the truth - a literal army was gathered to oppose his nomination even BEFORE it was announced (see, the "fill in the blank" press releases, released minutes after the name was known), see, e.g, NYT "Brian Fallon, a 2016 campaign adviser to Hillary Clinton ... helped start a group called Demand Justice to fight conservative judicial nominations") -- are totally unjustified.

A remark was heard: "What sort of evil creature is this, that defends itself when attacked?"

[concerned_citizen]

"But it is also true that a similar recusal argument could be made with regard to Justice Ruth Bader Ginsburg."

Yes, I believe the good professor Tribe has made this argument numerous times.

Oh, wait; nope. Instead, what Prof. Tribe says about Justice Ginsburg are things like (tweeted earlier this year):

"Great news: Justice Ginsburg has hired a full slate of law clerks through 2020. Take that, “stable genius” Donald."

I understand that there is no requirement for Professor Tribe to be impartial as a judge. But, c'mon. Has he ever suggested that Justice Ginsburg must recuse herself from any cases involving the executive branch's administrative agencies while Mr. Trump is president?

As for "inconceivable that he could ‘administer justice without respect to persons,’ ... 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..."

I could be wrong, but I don't believe these above are "outside left-wing groups" which have poured in "millions in dollars of money"[1] to oppose the nomination. Or if they have, I haven't seen any reporting on it. Maybe I haven't been paying close enough attention.

[1] You'd think a prepared comment would be a bit more artful. Given it probably wasn't millions in dollars of burritos, the "of money" should have been edited out.

[Brett Kavanaugh Macho Macho Man Association of America]

He would have to recuse himself on any litigation involving the beverage industry. He openly declared his love for beer. He is a Bud Man

[Anthony Gaughan]

concerned-citizen, thank you for your comment. I didn't catch the "millions in dollars of money" typo in Judge Kavanaugh's prepared statement either until you pointed it out.

The typo may confirm the accuracy of the first paragraph in Judge Kavanaugh's opening statement, in which he says, "[T]hank you for allowing me to make my statement. I wrote it myself yesterday afternoon and evening. No one has seen a draft of it except for one of my former law clerks. This is my statement." If more people had read the judge's statement in advance, I think someone would have caught the "millions in money" typo.

And if more people had read the statement beforehand, they might have been able to persuade Judge Kavanaugh to eliminate its partisan tone. But who knows.

Thanks again for your comment.

[anon2]

fwiw, Kavanaugh has now apologized for his tone, similar to how RBG apologized for her comments.