I have been having a great deal of difficulty figuring out whether or not to say something here about Brett Kavanaugh. I actually wrote a post about a week ago on the subject, but then did not publish it. It is being written over and deleted while I type this.
I have come at this from a number of angles, not the least of which is I was not there. I did not see anything. I did not hear anything. Nobody who was there at the time has told me anything about the incident over the past thirty-six years. I have no basis for any kind of a belief about this one particular incident whatsoever.
Then I saw portions of the hearing this past Thursday. Based upon the testimony, while I suspect Dr. Blasey is telling the truth, I have come to another realization, or rather had it confirmed for me by watching Judge Kavanaugh's performance. This realization is based upon the fact that for the past thirty-six years I have made a living as a trial attorney. While the decisions of judges effect people every day, even if they do not realize it directly, as a trial attorney, not only am I affected by a decision that corporations are people, that maybe I do not have as much of a right to privacy as I thought the constitution granted me, or that friends and members of my family may not be fully protected by that constitution and the laws of this country because of who they choose to love, but I am directly effected by the person sitting at the bench every time I go into court to practice my profession.
There are thousands of Judge Kavanaughs sitting on the bench all over the country. Those of us practicing know any number of them. They are the ones that we roll our eyes over each time they are assigned to our cases. They include:
1. The judge who sat in Manhattan for several years on the trial bench in spite of the fact that the judge's ability to speak or understand English was so very tenuous that an interpreter was in the courtroom or in chambers for all conferences so the judge could understand what was being said in the court's presence. Frankly, even a translator did not help getting decisions that made sense.
2. The judge who sat in Queens who took the bench and asked how I was doing that day, and then kicked me out of the courtroom when I said I was leaving for vacation the next day, so how bad could it be? Before kicking me out, I was subjected to a long diatribe about how he did not get to take a vacation.
3. Another judge who sat in Queens years ago who would let you know that you were about to have an adverse ruling during oral argument by sticking pencils up his nostrils and staring at you with the pencils hanging there while you finished making your point.
4. The judge who sat in the Bronx and then in Brooklyn, who refused to help settle a case on trial in front of him, telling us to work it out ourselves, and then who on motion days seemed more intent on berating every single attorney in front of him over anything he could think of, rather than discuss the merits of any given application in front of him.
There are any number of other judges out there, but you get the point. Some people may be brilliant, but they are not cut out to be judges. They are in turn, condescending, rude, smug, know it all or just plain nasty. Those of us who have practiced for a while and who have risen to a certain level in the profession and within the firms we have worked at have figured out how to send young associates to court in our place on days when we are supposed to be in court in front of one of those judges. There were any number of ways to get round the nasty or just downright incompetent judges.
But we cannot get around a justice on the United States Supreme Court.
And putting aside how he is going to rule on any particular issue before him, I ask my fellow attorneys:
After watching his sneering performance before the Judiciary Committee, his blaming everyone in sight and few who were not, basically everyone except himself, his blatant disdain for anyone even an inch politically to his left, the downright anger, the hedging answers on simple questions we all knew the answers to, and finally, the completely bald statement that he is going to take this out on anyone he thinks is his enemy once he is on the bench, as if the bench in any court, let alone SCOTUS, is a place to exact revenge, is this the kind of person you want to practice law in front of? Is this the person you would trust to render a fair and impartial decision? I am, as those who know me well, an unashamed liberal. I have no confidence at all if I were to be in front of a Justice Kavanaugh that I, and more importantly, my client would be treated fairly by him if he even suspected I am a liberal.
And while it is highly unlikely that I would ever appear before a Justice Kavanaugh, especially considering that I am now semi-retired, and about to be completely retired shortly, and it is further unlikely that Justice Kavanaugh would know my political leanings were I in front of him, consider this:
He certainly is going to know that a litigant in front of him is a woman seeking justice after having been subjected to sexual harassment or abuse.
He certainly is going to know if a litigant is a person seeking protection afforded under the Constitution fleeing the certainty of persecution and perhaps death in his/her homeland and asylum in this country. He certainly is going to know at least something about that litigant if they have an Hispanic or Arabic sounding name.
He certainly is going to know that a litigant before him is not a "traditional" heterosexual if the case before him seeks the right of that person to marry a person of the same sex.
By the same token, he certainly is likely to know from looking at the record before him that a litigant before him is a rich male child from old money who has led a sheltered and pampered life, going to all the finest schools, and having just about everything handed to him in life -- you know, just like him.
So I ask this further question of my fellow attorneys, and now everybody else:
Consider the above and any number of examples you can come up with as well. Look at the expression on his face in any number of photographs from the hearing. Listen to his tone of voice and his chosen words themselves in response to questions he did not want to answer. Consider the temperament he displayed at the hearing, and then ask yourself:
Would you want this guy on the bench of the United States Supreme Court deciding any of these cases if you were the attorney or one of the litigants?
