Court Battles

The lasting effect of Kavanaugh’s confirmation hearings

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The Senate fight over Brett Kavanaugh is finally over, but legal experts say the bruising confirmation battle could have a lasting effect on his Supreme Court career and the public’s perception of him.

Kavanaugh’s charged response to allegations of sexual assault, in which he accused Democrats of orchestrating a political hit fueled by “apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons,” has raised concerns among some court watchers about how his anger might influence his conduct on the bench and whether it will prevent him from being an independent and impartial justice.

{mosads}Jeffrey Rachlinski, a professor at Cornell Law School who has studied the influence of human psychology on judges’ decisionmaking, said research shows that judges react to their emotional state.

“There’s really no study that runs the other way,” he said. “Anytime researchers look for an influence of emotion on judges, we find an effect.”

Rachlinski said it’s hard to imagine how Kavanaugh’s confirmation process could not affect him.

“This is the central event of one’s life for a Supreme Court judge,” he said. “Every federal judge that goes through the confirmation process remembers every detail. A traumatic event is something you remember really well.”

Many have drawn comparisons between Kavanaugh’s confirmation hearings and those of Justice Clarence Thomas, whose nomination was upended when Anita Hill accused him of sexual harassment. But Rachlinski said those similarities might also extend to his life on the bench.

“Justice Thomas, by all accounts, is still very bitter,” he said. “Even after decades of having a record as a Supreme Court justice, he is still really angry.”

In Thomas’s 2007 memoir “My Grandfather’s Son,” he provided his first detailed comments on the scandal that threatened to derail his nomination.

“The mob I now faced carried no ropes or guns,” he wrote, recounting the 1991 hearings. “Its weapons were smooth-tongued lies spoken into microphones and printed on the front pages of America’s newspapers.”

“Mere confirmation, even to the Supreme Court, seemed pitifully small compensation for what had been done to me,” he added near the end of the 289-page book.

Some say Thomas’s resentment is one reason why he never speaks during oral arguments before the court — though he has given various explanations over the years for his silence — and why his public speaking appearances are only for conservative audiences.

“Some judges can’t shake the asterisk,said Jonathan Turley, a George Washington University professor of law and an opinion contributor to The Hill. “Thomas hasn’t, and I don’t think Kavanaugh will. It’ll be part of the indelible record of his career.”

Turley said Kavanaugh will likely carry resentment over the confirmation process.

The anger you saw in the confirmation hearing was honest and, to a degree, understandable,” he said. “I think anyone would carry a lasting sense of injury and a degree of resentment over how he was treated. I think that’s human.”

Kavanaugh has since walked back some of the remarks he made during the special Senate hearing that included testimony from Christine Blasey Ford, who has accused him of sexually assaulting her at a party in 1982, when they were both in high school.

A week after the hearing he took the unusual step of writing an opinion piece for The Wall Street Journal, acknowledging that he was perhaps “too emotional at times” and that he had said a few things he should not have.

Kavanaugh said his response was a reflection of overwhelming frustration at being wrongly accused.

But that feeling won’t be short-lived, according to Daniel Epps, an associate professor of law at Washington University School of Law.

“It will definitely have a big impact on the rest of his life and how he sees himself and how he sees other people view him,” said Epps, noting the possible effects on how he rules on Supreme Court cases.

“You could say he could care about trying to restore his reputation, or it could cause him to be really frustrated with the left and be really conservative,” Epps said, adding there might also be no impact on his jurisprudence.

Turley, however, said he doesn’t expect Kavanaugh to deviate from his judicial philosophy as he replaces former Justice Anthony Kennedy.

“People who are anticipating some type of grotesque transformation really don’t know Brett Kavanaugh’s record,” Turley said. “He was already to the right of Justice Kennedy. There is not much further you can go to the right when you’re at that spot.”

Kavanaugh is expected to be on the bench Tuesday for oral arguments. The court, which began its most recent term on Oct. 1, is closed Monday in observance of Columbus Day.

For retired Supreme Court Justice John Paul Stevens, Kavanaugh’s public display of anger at the Senate hearing should disqualify him from a lifetime seat on the high court.

Stevens, who was nominated by President Ford, said in public remarks that Kavanaugh’s performance suggests he lacks the necessary temperament for the demands of the job, according to The Palm Beach Post.

While it remains to be seen how Kavanaugh will respond, some say he’s already shown a level of bias that will be hard to forget.

“I think there will be a perception if nothing else that he is unlikely to give certain groups the same level of consideration,” said Carolyn Shapiro, an associate professor of law and co-director of the Institute on the Supreme Court of the United States at the Chicago-Kent College of Law.

Shapiro, who joined more than 2,400 other law professors in a letter opposing Kavanaugh’s nomination, said cases that could present a problem are those where Democratically aligned groups are challenging a Republican-backed action. She pointed to the North Carolina partisan gerrymandering case that’s making its way back before the court as an example.

While legal experts say outside groups will likely call on him to recuse himself from certain cases, Supreme Court rules say individual justices decide whether their recusal is warranted.

“They are not subject to anyone else’s authority other than their own,” Epps said.

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