Brett Kavanaugh is now an associate justice of the Supreme Court — but the hyper partisanship he showed to get confirmed disqualifies him from ruling in certain cases. Kavanaugh must recuse himself in politically charged cases to maintain the integrity and impartiality of the court.
Before the allegations had surfaced that he had sexually assaulted Professor Christine Blasey Ford as a teenager, Kavanaugh had serenely trotted out the tired old canard that as a justice he would be nothing more than a workman-like baseball umpire calling balls and strikes, putting aside any personal feelings or ideology as he interpreted the Constitution.
But when it came time for his testimony in response to Ford, Kavanaugh in both his prepared testimony and answers to the senators’ questions made clear that all of his prior protestations of a calm, apolitical, even-handed mulling of issues was pure showmanship to get confirmed.
In a Trump-like tirade that would have led to a lawyer being cited for contempt of court if spoken to a judge, Kavanaugh not only aggressively attacked the Democrats on the committee by claiming that Ford’s allegations were “revenge on behalf of the Clintons,” but he darkly promised that “what goes around comes around.”
Now that Kavanaugh has been confirmed, how does the court go forward with a justice who has openly and angrily revealed himself to bear a partisan vendetta?
Kavanaugh is aware of the potential damage he has caused the court, writing a begrudging mea culpa in The Wall Street Journal that protests, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle … I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”
But even if Kavanaugh sincerely means it, who is going to believe him? And there’s the rub, because as the justices themselves have repeatedly acknowledged over the years, the court — like Tinkerbell — depends on the public believing in it to have continued vitality.
The only possible answer is that Kavanaugh must recuse himself from all future cases where the court is deciding an issue with ramifications for the electoral system or the executive branch’s power. Canon 2 of the Code of Conduct for United States judges requires a judge to avoid “the appearance of impropriety,” commanding: “A judge should respect and comply with the law and should act all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There simply is no way after watching Kavanaugh’s belligerent outbursts that a significant portion of the country will have an iota of public confidence that his vote will not be influenced by his allegiance to President TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE who ridiculed his accuser or by his antagonism toward the Democrats who he declared were on a “search and destroy” mission.
Nor when it comes to recusal is it any defense whether, as some have argued including Kavanaugh in his op-ed, his rage was justified in defending his name and reputation. Justified or not, no one could watch him volcanically brimming over with partisan rancor and resentment without harboring deep doubts that he could now miraculously wipe the slate clean and be fair-minded.
The Supreme Court is sometimes depicted as the Mount Olympus of the legal system because of the immense power that the justices wield. But let us also remember that the tales about the gods of Mount Olympus are fascinating precisely because the gods often abused their powers out of very human feelings of jealousy, anger and revenge.
When Kavanaugh dons his black robe and is asked to rule on presidential immunity or gerrymandering or any host of issues affecting the balance of political power, no one should fall for the myth that he will be free of the very human emotions he put on full display at his hearing. If Kavanaugh truly cares about the integrity of the court as he professes in his op-ed, he will recuse himself.
Scott Sundby is a professor of law at the University of Miami.