Lawyers for Good Government (L4GG) is a non-partisan, non-profit organization made up of more than 125,000 lawyers, judges, law students, and supporters across the country. Our mission is to strengthen democratic institutions, resist abuse of power and corruption, and defend individual rights. We write to express our deep concerns regarding the potential confirmation of Judge Brett Kavanaugh to a lifetime appointment to the Supreme Court.
Based on Judge Kavanaugh’s sworn testimony during his confirmation hearings, and the sworn testimony of others who have made credible allegations against him, we strongly believe that Judge Kavanaugh’s nomination should not be confirmed.
In addition to our substantive concerns regarding Judge Kavanaugh’s suitability for the role of Supreme Court Justice, the manner in which this nomination has proceeded, including the limited nature of the “supplemental” FBI investigation conducted over the past several days, is itself problematic. The failure of the FBI (presumably under the direction of the White House) to interview as many as 40 key witnesses who might have corroborated allegations against Judge Kavanaugh raises serious questions regarding the future integrity and independence of the judicial branch, an essential component of the “checks and balances” system established by our Constitution to protect this country and its citizens from governmental overreach.
The issues in this nomination process now extend far beyond resolution of the credible allegations of sexual assault that prompted last week’s hearings.
Recent events reveal that Judge Kavanaugh lacks the requisite judicial temperament, respect for due process, impartiality, and regard for the rule of law paramount to the role of Supreme Court Justice. In his responses to Senators posing reasonable questions, Judge Kavanaugh demonstrated glaring disrespect for the process, and a shockingly cavalier approach to telling the truth under oath. He has echoed politicized calls from Republican Senators and President Trump to disregard the testimony of those who contradict his accounts. He has put forward conspiracy theories driven by anger and partisanship. Taken together or separately, these actions are disqualifying and should be sufficient to defeat Judge Kavanaugh’s confirmation.
The Code of Conduct for United States Judges states that a judge should act with integrity, and avoid impropriety and the appearance of impropriety in all activities.
More specifically, Canons 1 and 2 provide, in relevant part, as follows:
Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
Judge Kavanaugh has failed to comply with the standards set forth in Canons 1 and 2 of the Code of Conduct for United States Judges, as set forth below.
Perjury and Lack of Candor
Throughout his sworn testimony before the Senate Judiciary Committee, not only did Judge Kavanaugh repeatedly engage in evasion by failing to forthrightly and directly answer numerous questions from Senators, he failed to answer questions truthfully in many cases.
For example, when repeatedly asked by several Senators on the Judiciary Committee if he would be willing to ask for an FBI investigation into the allegations made against him by Dr. Ford and others, Judge Kavanaugh demurred and evaded the question, repeatedly responding by stating he would “do whatever the committee asked” or that “he had asked for a hearing the very next day.” Neither of these answers was responsive to the question of whether he would affirmatively request - or even welcome - an FBI investigation. When he was specifically asked if he was afraid of what an FBI investigation would reveal, he called it a “phony question,” and seemed to belittle the idea of an FBI investigation by stating it would fail to provide any conclusions.
Perhaps even more problematic than Judge Kavanaugh’s non-responsiveness is the clear pattern of misleading answers he provided when he did, in fact, answer questions.
For example, Judge Kavanaugh asserted, numerous times, that the statements of the four witnesses whom Dr. Ford identified as being present at the home where she was attacked indicated that “[the alleged assault] never happened.” This was a clear mischaracterization of those statements, which reflected only that the witnesses did not recall the day or events in question.
Additionally, Judge Kavanaugh asserted that he could not have participated in the assault on Dr. Ford because his high school calendar from July 1982 showed that he attended parties, and drank, only on weekends, and that Dr. Ford reported the incident occurred on a weekday. Yet, in the process of being questioned by Rachel Mitchell, the prosecutor hired by Republican Senators, it became clear through Judge Kavanaugh’s own testimony and calendar evidence that he had attended at least one weekday house party (Thursday, July 1, 1982), and that he drank beer (“skis,” short for “brewskis,” which is slang for beer) at that party.
Judge Kavanaugh testified under oath that references on his high school yearbook page to the “Devil’s Triangle” and “boofing” were names for a drinking game and flatulence, respectively. These statements are quickly refuted through cursory Internet searches as well as statements from a variety of Judge Kavanaugh’s Yale classmates, several of whom the FBI refused (presumably at the direction of the White House) to interview.
Inability to Maintain Impartiality
Pursuant to Canon 3(C)(1), a judge is required to disqualify himself in proceedings in which the judge’s impartiality might reasonably be questioned, especially in instances where “...(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…”
Judge Kavanaugh’s statements under oath at his confirmation hearing, especially his alarming accusation that Democratic Senators were attempting to avenge the Clintons by orchestrating Dr. Christine Blasey-Ford’s testimony (whose testimony was deemed credible by observers on both sides of the political aisle), indicated a clear partisan bias.
In his opening statement to the Senate Judiciary Committee, for example, Judge Kavanaugh stated: “in the political system of the early 2000s, what goes around comes around,” indicating an inability to remain fair and impartial following a confirmation process that Judge Kavanaugh views as a “national disgrace.” Judge Kavanaugh also specifically attacked Democratic Senators during his opening statement, as well as throughout his testimony. This is not compliant with Canon 2(A), as it demonstrates an inability to remain impartial when there are political parties involved in a dispute, or when a political issue is at stake.
Under both our country’s expectations of our Supreme Court and the Canons of Ethics, such overt and hostile bias and partisanship has no place in our judiciary.
Partisan politics and bias tarnish the reputation for due process, impartiality, and fair-mindedness that is key to the legitimacy of the United States Supreme Court.
Were Judge Kavanaugh to be confirmed, he would doubtless need to recuse himself from many cases that go to the heart of our jurisprudence. He has demonstrated on numerous occasions - including at his confirmation hearing - that he has a clear bias against and disdain for certain segments of the American public.
Of additional concern, beyond any answers Judge Kavanaugh gave (or failed to give) at the hearings, is Judge Kavanaugh’s general demeanor and conduct during these hearings, which demonstrated that he lacks the requisite temperament and demeanor to be a Supreme Court Justice. We are not alone in expressing this concern.
As stated above, Canon 2A requires that a judge respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The Commentary to Canon 2A also notes:
“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.”
Rather than striking the proper respectful, deferential, and cooperative tone that would have been expected of a federal judge during such a proceeding, Judge Kavanaugh was overtly combative, confrontational, and often disrespectful to the duly elected representatives of the people of the United States.
He yelled, blustered, and even attacked those questioning him, rather than provide the sort of candid and thoughtful testimony we witnessed from Dr. Christine Blasey Ford that very same day.
For example, when Judge Kavanaugh was being questioned by Senator Klobuchar regarding whether he had ever experienced an alcohol-related memory lapse, Judge Kavanaugh replied, “You’re asking about a blackout. I don’t know, have you?” This response is unprofessional, disrespectful, and unacceptable.
Allegations of Misconduct
In addition to Judge Kavanaugh’s performance during the Senate Judiciary Committee hearings, there are numerous allegations regarding his conduct that call into question his fitness to serve on the United States Supreme Court. Most notable of these are the allegations of Dr. Christine Blasey Ford (and others) that Judge Kavanaugh committed sexual assault.
Dr. Ford gave credible direct testimony regarding her assault, under oath, to the United States Senate.
In contrast to Judge Kavanaugh, Dr. Ford stated numerous times that she would welcome an FBI investigation into the facts of her allegations. She was honest about where her memory failed her, and she was extremely clear and detailed regarding the specific criminal behaviors in which Judge Kavanaugh and his high school era friend, Mark Judge, engaged during the assault. Dr. Ford also named specific individuals who were friends of Judge Kavanagh at the time and who were present at the gathering where she was sexually assaulted. Finally, Dr. Ford provided evidence that she twice reported the assault to her therapist years before Judge Kavanaugh was on any list of potential nominees for the Supreme Court.
Several more women have since come forward with credible allegations of sexual misconduct by Judge Kavanaugh.
These women have provided specific details about non-consensual sexual acts that Judge Kavanaugh engaged in during high school and college, many of them occurring while he was highly intoxicated. In particular, Deborah Ramirez, a fellow Yale graduate, has accused Judge Kavanaugh of exposing his penis near her face, causing her to have to push him away to avoid further contact. Ms. Ramirez provided the names of mutual friends and acquaintances who can corroborate this report because they were either witnesses at the time or learned of it contemporaneously when it occurred. Based on the information currently available regarding the FBI’s “supplemental” investigation, many of the individuals on Ms. Ramirez’ witness list have not been questioned by the FBI.
Whether or not he is guilty of the crimes of which he has been accused, Judge Kavanaugh’s attitude and behavior in response to the allegations against him were indicative of a cavalier and irresponsible attitude toward survivors of sexual assault.
As lawyers, we are committed to the principle that in the criminal justice system, the accused are innocent until proven guilty. We’re not arguing here that Judge Kavanaugh should be criminally prosecuted, jailed, or otherwise punished for the crime of sexual assault based on the publicly available evidence.
Our argument is simple:
When a nominee for the Supreme Court of the United States responds to credible, serious allegations of criminal activity primarily with evasion, anger, misleading answers, disrespect, and partisan outbursts, it is the responsibility of the United States Senate to advise the President to choose a different nominee.