How to judge a judge
By Scott Sumner
Some people favor conservative judges while others prefer liberal judges. I like fair and unbiased judges. Consider Judge Kavanaugh, who once was in a position to investigate President Clinton:
Mr Kavanaugh, who at the time was an an associate counsel for Ken Starr, the man leading the probe, wrote he was “strongly opposed to giving the President any ‘break'” in questioning unless he “resigns” or “confesses perjury”.
Entitled “Slack for the President?”, the memo dated 15 August 1998, he wrote: “The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behaviour that has somehow gotten lost in the shuffle.”
He added: “He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behaviour clear — piece by painful piece.”
He went on to recommend 10 questions he wanted posed to Mr Clinton, suggesting the then president would be required to answer them “to make his pattern of revolting behaviour clear”.
After seeing how investigations impacted the Bush administration, he changed his mind:
In a 2009 Minnesota Law Review article, Kavanaugh detailed his concerns about indicting a sitting president, saying his views had changed over the issue since the 1980s and 1990s.
“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
This reminds me of some poll results I saw a few months back:
Notice that the title of the graph does not accurately characterize the question. The title implies a normative judgment “accepting”, whereas the poll is about a purely positive question; can those committing immoral acts do a good job on public policy questions? I could imagine someone thinking a sleazy politician could do a good job, and yet still not be accepting of their behavior.
Also notice the particularly large shift in the views of white evangelical Protestants. (I wish black evangelical views had been reported.) In 2011, many poll respondents might have visualized Bill Clinton when answering the question. In 2016, Donald Trump may have been on people’s minds.
Just to be clear, I have no problem with anyone changing their mind, whether it be Judge Kavanaugh or evangelical voters. However, I would hope that views on issues of principle do not reflect political calculation. Thus one’s view on the constitutionality of the so-called “Muslim travel ban” and/or Obamacare should not in any way depend on whether the judge views these as sensible public policies.
Special prosecutors seem like a good idea to me—a way of preventing presidents from becoming too authoritarian or corrupt. Having said that, I’m in no position to judge whether this particular institutional setup is constitutional. So I am not going to offer an opinion on that question. However, considerations such as:
Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible . . .
The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behaviour that has somehow gotten lost in the shuffle.
do not have any bearing on whether special prosecutors have a constitutional right to investigate US Presidents. Will Judge Kavanaugh be able to separate his personal views from his decisions on the constitutionality of various laws? Perhaps, but this case doesn’t exactly inspire confidence. After all, it’s not just that his views changed when the US switched from a Democratic to Republican president, even the tone of his remarks feels quite different. Let’s hope he will be equally willing to provide “slack for the President” of either party if he is confirmed to a position on the Supreme Court.