MR. KAVANAUGH AND CONFIRMATION BIAS*

Afternoon Pasture, Oil on Panel, 18" x 24", Richard J Van Wagoner, Courtesy of Helen Bero- and Richard A. Van Wagoner**

In the face of a criminal investigation in which Mr. Trump is a subject if not the target, his appointment of someone to the Court who may sit in judgment of him creates an obvious and irreconcilable conflict of interest. The nomination and confirmation could result in decisions that appear, even more so than usual, to be made on political considerations rather than the merits.

Each independent branch of government purports to serve as a check on the others. Each has the ability to derail that train. If only one had the ethical wherewithal. Given that neither the Executive nor the Legislative Branch has a scintilla of credibility in this regard, it will be up to Mr. Kavanaugh himself to do the right thing, assuming his confirmation. We shall see.

This post is not about Judge Kavanaugh’s scholarship, competence or demeanor. This post is about propriety, the appearance of impropriety and the credibility, or lack thereof, of the judiciary as the least political branch of government.

EXECUTIVE

Conflict of Interest May Be The Point Of This Person’s Appointment.

The president demands loyalty. To him. The president, of course, could have delayed the appointment until after the criminal investigation and any prosecution or attempt to prosecute him. Or, he could condition the appointment on the appointee’s commitment to recuse him/herself from any decisions relating to the investigation and any prosecution, including adjudicating whether a sitting president is subject to grand jury subpoena, can be indicted and/or has the constitutional authority to pardon himself. (Some might argue that exacting such a commitment — to behave ethically in this specific contingency — would infringe the separation of powers, something Trump and the current congressional majorities are wont to do as often as necessary to achieve their conjoined agenda.) Given that Mr. Trump has no moral compass, demands loyalty to himself over any and every oath of office and the United States Constitution, and given the fury and disappointment he has directed at Mr. Sessions for choosing to recuse himself from the Russia investigation, I’m guessing these options are unavailable. Did he attempt to exact an oath of personal loyalty from the nominee?

LEGISLATIVE

We all know Mr. McConnell has the power to deny or delay Senate consideration of a Trump appointee. Indefinitely. Forever, actually. He too could condition the Senate’s willingness to consider (confirm) an appointee on that person’s commitment to recuse him/herself from any decisions relating to the criminal investigation or any prosecution of the president, including adjudicating whether a sitting president is subject to a grand jury subpoena, can be indicted, and/or has the constitutional authority to pardon himself. Given McConnell’s crowning achievement, I’m guessing those options aren’t available.

JUDICIAL

It is therefore up to the members of the Supreme Court to behave ethically. Thank god for an independent judiciary, unswayed by politics or partisanship, whose decisions are based solely on the merits. Under the Judicial Code of Conduct that applies to all federal judges, any newly-appointed justice would, of course, recuse him/herself, right? No justice could possibly believe it appropriate to adjudicate issues relating to the president if the issues are connected to a criminal or related investigation that was underway at the time of his/her appointment and could be construed as among the principal reasons that justice was nominated, that is, to weigh in on issues surrounding the investigation and possible prosecution of the person who nominated him. The appearance of impropriety. The clear conflict of interest. Public confidence in the judiciary. Right?

If that’s what you thought, you would be wrong.

“Since the seventeenth century, a fundamental axiom of Anglo-American law has been that ‘no man shall be a judge in his own case.’ In matters of judicial ethics, however, each Justice is precisely that. Their sometimes questionable decisions in these cases are an important reason why the Court’s standing in American life has declined notably since 2000. . . .

“In 2011, Chief Justice John G. Roberts, Jr., used his annual report about the state of the federal judiciary to defend the probity of his Court colleagues. He was responding to members of Congress, experts in legal ethics, and legal advocacy groups who wanted the Court to be subject to the Code of Conduct for United States Judges, which applies to all other federal judges.

“In the previous decade, a few of the Justices had not recused themselves from cases despite persistent doubts about their ability to decide them impartially. Most dramatically, Justice Antonin Scalia had rejected a motion that he recuse himself from a case that provided a textbook example of the circumstances a Justice should avoid.

“Scalia’s close friend Dick Cheney, who was then the Vice-President, was accused of lying about the composition of a White House group that was setting national energy policy. While the case was pending, Scalia and Cheney went duck hunting together, and Cheney gave Scalia and two of his family members a ride on a government Gulfstream jet from Washington, D.C., to Louisiana, where they did their hunting.

“Scalia eventually joined the majority of the Court in a procedural ruling that sent the case back to a lower court. But he was also the only Justice to join a separate opinion by Justice Clarence Thomas saying that the activities of the Vice-President should not be scrutinized in litigation run amok.

“If Scalia had been a member of the United States Court of Appeals for the District of Columbia Circuit, as he was before becoming a Justice, it would not have been up to him to decide whether he should be recused. Under the code of conduct, the chief judge for his circuit would have considered any motion calling for Scalia’s recusal, conducted an inquiry, and resolved the matter.

“As Roberts explained in his report, the code of conduct does not apply to the Justices because of ‘a fundamental difference between the Supreme Court and the other federal courts.’ The Constitution created the Supreme Court and gave Congress the power to establish lower federal courts. To set policies for those courts, including about recusal, Congress established a group of federal trial- and appeals-court judges called the Judicial Conference, and made the Chief Justice the presiding officer.

“’Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body,’ Roberts wrote. ‘The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.’”

“Lower-court judges are required to obey the principles. The Justices follow them, but they are not obligated to obey them. As a result, the Justices of the Supreme Court are the only judges in the United States who are not bound by a formal, full-blown ethics code.”

https://www.newyorker.com/news/news-desk/does-the-supreme-court-need-a-code-of-conduct

See also https://www.nbcnews.com/news/us-news/why-don-t-supreme-court-justices-have-ethics-code-n745236

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.