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Can Supreme Court Nominee Be Seen As Objective After His Testimony?

Oct 2, 2018
Originally published on October 2, 2018 11:56 pm
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AILSA CHANG, HOST:

When Brett Kavanaugh sat down before the Senate Judiciary Committee to respond to charges that he had sexually assaulted Christine Blasey Ford, this is some of what he had to say.

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BRETT KAVANAUGH: This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

CHANG: So what could the consequences of statements like this be for Judge Kavanaugh whether or not he's confirmed to the Supreme Court? To answer that question, we're joined by Stephen Gillers. He's a law professor at New York University, and he specializes in ethics. Welcome.

STEPHEN GILLERS: Thank you.

CHANG: So I first want to get a sense from you of how rare it is to hear a Supreme Court nominee talk the way Kavanaugh did in that moment. I mean, have you ever heard such partisan language like that during a confirmation hearing?

GILLERS: No, I haven't, not even during the confirmation of Clarence Thomas. It was nothing like that.

CHANG: So let's say Kavanaugh is confirmed to the Supreme Court. Do you think that he can be seen as an impartial arbiter in cases with political undertones?

GILLERS: It depends upon who's doing the seeing. I think the losers will not see his decision as impartial. He is now branded as favoring the right over the left. So in political cases, the left will expect to lose, and they'll attribute that loss not to a disinterested treatment of the law but to a political agenda.

CHANG: I mean, there's this ideal that a lot of people have about the Supreme Court that these justices, that this court is above politics or should be above politics. But let me ask you. How far removed is that ideal from reality?

GILLERS: Very far removed. First of all, the justice has been appointed by a president of a particular party who, if he's doing his homework, will be sure to appoint a justice who will likely agree with the political position of that party. So while we have decisions use the language of law, we know that the court's decisions, the justices' decisions are influenced by their political allegiance.

CHANG: So I guess what I'm really asking is, how productive is it having a conversation about impartiality when impartiality is a bit of a fantasy?

GILLERS: There are - this is a challenging question. And we don't want any judge to favor a litigant because of particular animus toward a particular litigant. So impartiality at the very least means unbiased towards the litigants. It doesn't mean unbiased toward the issue that has come before the justice. The justice may have very definite views on the meaning of the Fourth Amendment or the meaning of privacy.

CHANG: Right.

GILLERS: And that is not bias.

CHANG: But you're saying even a very minimal understanding of impartiality - even working from that minimal understanding, you think Judge Kavanaugh jeopardized any appearance of impartiality after what he said last Thursday.

GILLERS: Yes because his tirade, his fury toward what he called the left will cause great doubt about the disinterestedness, the objectivity of decisions he makes where there are different views, divergent views on the left and the right.

CHANG: Finally, just stepping back from Kavanaugh for a moment, how does what we saw play out last week before the Senate Judiciary Committee - how does that affect the credibility of the Supreme Court as an institution?

GILLERS: I think that Judge Kavanaugh has done great damage to the credibility of the Supreme Court in the manner in which he testified, his discourtesy, his failure to answer questions from the Democratic senators, the tone, the anger. He will always be the justice who behaved the way he did before the Judiciary Committee, and that will forever color how the public views his decisions on legal questions.

CHANG: Stephen Gillers is a professor of law at New York University. Thank you very much for joining us.

GILLERS: Thank you. Transcript provided by NPR, Copyright NPR.