Benjamin Wittes Of Lawfare Blog Wouldn’t Confirm Judge Kavanaugh To Be On Supreme Court


This is another must read analysis regarding why Judge Brett Kavanaugh should not be confirmed by the US Senate Judiciary Committee to become the next US Supreme Court justice by the editor of the Lawfare blog and a senior fellow at the Brookings Institute, Benjamin Wittes.

On October 2, 2018, Benjamin Wittes for the Atlantic penned the following analysis, “I Know Brett Kavanaugh, but I Wouldn’t Confirm Him” (“This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.”)

“If I were a senator, I would not vote to confirm Brett Kavanaugh.”

“These are words I write with no pleasure, but with deep sadness. Unlike many people who will read them with glee—as validating preexisting political, philosophical, or juris-prudential opposition to Kavanaugh’s nomination—I have no hostility to or particular fear of conservative jurisprudence. I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so. I have also spent a substantial portion of my adult life defending the proposition that judicial nominees are entitled to a measure of decency from the Senate and that there should be norms of civility within a process that showed Kavanaugh none even before the current allegations arose.”

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This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.

“I am also keenly aware that rejecting Kavanaugh on the record currently before the Senate will set a dangerous precedent. The allegations against him remain unproven. They arose publicly late in the process and, by their nature, are not amenable to decisive factual rebuttal. It is a real possibility that Kavanaugh is telling the truth and that he has had his life turned upside down over a falsehood. Even assuming that Christine Blasey Ford’s allegations are entirely accurate, rejecting him on the current record could incentivize not merely other sexual-assault victims to come forward—which would be a salutary thing—but also other late-stage allegations of a non-falsifiable nature by people who are not acting in good faith. We are on a dangerous road, and the judicial confirmation wars are going to get a lot worse for our traveling down it.”

“Despite all of that, if I were a senator, I would vote against Kavanaugh’s confirmation. I would do it both because of Ford’s testimony and because of Kavanaugh’s. For reasons I will describe, I find her account more believable than his. I would also do it because whatever the truth of what happened in the summer of 1982, Thursday’s hearing left Kavanaugh nonviable as a justice.”

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“A few days before the hearing, I detailed on this site the advice I would give to Kavanaugh if he asked me. He should, I argued, withdraw from consideration for elevation unless able to defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the “no asterisks” standard—that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice. His defense needed to make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade.”

“Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.”

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“Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

“A very different Brett Kavanaugh showed up to Thursday’s hearing. This one accused the Democratic members of the committee of a “grotesque and coordinated character assassination,” saying that they had “replaced advice and consent with search and destroy.” After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in:”

“When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.”

“Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.”

“When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then—and then as no doubt was expected, if not planned—came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred.”

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“He went on: “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, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

As Charlie Sykes, a thoughtful conservative commentator sympathetic to Kavanaugh, put it on The Weekly Standard’s podcast Friday, “Even if you support Brett Kavanaugh … that was breathtaking as an abandonment of any pretense of having a judicial temperament.” Sykes went on: “It’s possible, I think, to have been angry, emotional, and passionate without crossing the lines that he crossed—assuming that there are any lines anymore.”

“Kavanaugh blew across lines that I believe a justice still needs to hold.”

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“The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for the Washington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional.”

“What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh?”

Link to lengthy analysis:  I Know Brett Kavanaugh, but I Wouldn’t Confirm Him –


  1. Gronda, this is well described. I found him to be unbelievable as well. He gave me reason to dig into the issue, not less. I had equal disappointment for Grassley (for letting him belittle Senators) and Graham (who ranted with intent). Keith

    Liked by 1 person

    • Dear Keith,

      This is like the Russia-Trump saga. Every time, one digs a little, there is more dirt to be found. The only reason not to dig further is that there are those afraid of finding more dirt.

      I like reading this Benjamin Witte’s legal writings because he is fair. He gave his friend solid good advice but his friend’s hubris and ambition took over where his good sense went out the window.

      Hugs, Gronda


    • Dear Roger,

      You understate your case. If I were on the US Senate Judiciary Committee I would be voting nay on Judge Kavanaugh becoming a justice on the US Supreme Court, I would be arguing my stance based on his lack of temperament, and his obvious partisanship.

      That the GOP senators are continuing to back him has me suspicious as to what is really going on sub rosa, as he is easily replaced by a more competent, qualified conservative justice with time to place him/ her before those elected in November 2018 are seated on the 1st of January 2019.

      Hugs, Gronda

      Liked by 1 person

      • I’m a bit shaky of the Supreme Court process Gronda.
        Could you explain the mechanics of how that would work?

        Liked by 1 person

        • Dear Roger,

          The Supreme Court is the highest court in the US. If there are court decisions in different states that are different in their rulings, the state courts can ask for the supreme court to review their cases to come up with a ruling that all the lower courts are then bound/ obligated to honor.

          The justices on the Supreme Court are supposed to respect / honor prior supreme court rulings but they have the power to diverge if they choose to do so.

          If the lower courts should ignore their rulings, then that case can be reviewed at a higher court level.

          There are 9 justices that serve on a lifetime appointment. Recently, there have been 4 justices who lean progressive and 4 who lean conservative with one who was considered more centrist and this was Justice Anthony Kennedy who recently.

          Because this is a lifetime appointment, in the past presidents have tried to pick top notch judges who reflect either a progressive or conservative way of thinking.

          In the case of Judge Kavanaugh, he was thought to be a conservative leaning judge but who was very qualified until anyone interested in an above board judicial system reviewed his history which shows him to be an extreme conservative ideologue. Then add to that negative, the fact that a credible woman Dr. Christine Blasey Ford and then others have come forward with allegations of having been sexually abused by him. When he participated in a recent hearing in front of US Senators, he performed poorly. President Trump and his base of supporters loved his performance but any truly objective review would indicate that his temperament and ability to an objective fair jurist was shown to be questionable at best.

          The republican lawmakers in the US Congress are thrilled at the idea that they would be placing a 5th conservative jurist on the Supreme Court which tilts the court towards more conservative thinking but also that he is a partisan who they can count to rule in their favor no matter what laws they write regarding voting rights, the environment, immigration rules, etc.

          That is why US citizens are fighting against this man becoming the 5th conservative jurist.

          This country is already divided. This confirmation exacerbates this condition.

          But President Trump and his ilk are doing the happy dance because their man is close to being confirmed.

          I hope this cliff notes version of the US Supreme Court helps.

          Hugs, Gronda

          Liked by 1 person

        • Thanks for that background Gronda. Very helpful.
          So are there no constitutional processes whereby ordinary citizens can challenge the validity of a Supreme Court Judge as fit to hold office once they are instated?

          Liked by 1 person

        • Dear Roger,

          It is possible. The process is called impeachment which is a lengthy cumbersome process which would require the democrats to be the majority position in both the lower (House of Representatives) and the upper house (the US Senate) and this process has never been successfully executed in the past.

          It really would be best if he is not appointed, period. The protests and activity against this nominee here in the USA is off the charts.

          But it is President Trump’s folks who are running the show.

          If I were running the show, when the Democrats win the majority of seats in the lower House ( House of Representatives) then I would order a proper investigation into the youthful background of Judge Kavanaugh and I would subpoena what ever the republican senators on the Judiciary Committee had in their possession regarding his history prior to Dr. Ford going public with her allegations of being sexually assaulted by the judge in her high school years.

          If the results warrant it, I would proceed towards impeachment, no matter how difficult it is.

          By the time this happens, it will be close to 2020 elections’ season.

          In 2018, the map is horrible for democrats to win the majority position in the US Senate (the upper house). It would have to be a blue tsunami for this to happen in 2018.

          Hugs, Gronda

          Liked by 1 person

        • Yes I thought the Impeachment would be the only way.
          And of course the latest news strikes a cruel blow.
          Both our nations live in times when division and petty folk stalk the lands
          Take care Gronda.

          Liked by 1 person

        • Dear Roger,

          As you might guess, I’ve been giving recent events in US a lot of thought. The GOP won this skirmish but it will be short lived. I was thinking impeachment but then I started pondering along the lines what if I’m right regarding Dr. Ford’s allegations.

          As a former Guardian Ad Litem who used to work with abused children going through the court system to make sure their best interests were represented, I came to know a little about this subject.

          Child abusers, any abuser can look like the nicest people. There was a psychiatrist who I worked with who specialized in the treatment of sexually abused children. There was this one social services representative who we all thought the world of, to where we would have sworn to his great treatment of children. It turned out that he was a serial child molester. This caused such a shock in the community.

          The point is that those GOP Grumpy Old Perverts in the US Senate think they helped a good man from being falsely maligned. What happens when there is proof uncovered which will eventually happen, that Dr. Ford was the one telling the truth; and that they backed the wrong horse. Frankly, I found Dr. Ford to be very credible.

          Judge Kavanaugh may be forced to resign. This would be the likely outcome.

          If these GOP senators hadn’t backed the wrong horse, then they could have easily replaced Judge Kavanaugh with a more qualified conservative nominee.

          Their mistake may have given Democrats a little more wiggle room while women are looking for their blood at the ballot boxes this November 2018.

          As for the UK situation, to block the rise of Boris Johnson, someone should initiate a real investigation into how Russia meddled in the Brexit movement. I know that you don’t agree but that’s my thinking.

          Hugs, Gronda

          Liked by 1 person

        • If Kavanaugh were forced from office it would set off a chain of events which would rock right back to the Whitehouse. Normally I would say ‘Highly Improbable’; in these turbulent days, who can say?
          Here Gronda, ‘The Russia Card’ is a non-starter on this issue.
          Those who have voted Leave are firmly entrenched and see it only as a last gasp desperate bid by Remain.
          The Opposition Labour Party has a strong wing who simply pretend Russia never does anything wrong. Tell them it was the CIA and they would be out squeaking away…rather pathetic really.
          Johnson on paper is vulnerable to the British Electorate for the following reasons:
          1. Class is still a powerful factor in our realm. This fellow is a man of a privileged up-bringing, and is thus open to be pilloried for that reason alone
          2. He has a very tawdry past of adultery and excess which calls into question his character.
          3. His tenure as Foreign Secretary was terrible, which most importantly calls into question his fitness’ for office.
          By those reasons alone Labour should be able to demolish him. But Labour is a Party riven by its own civil war and has a nasty taint of anti-Semitism for which I will not forgive them until it is purged.
          We, like yourselves live in uncertain times.

          Liked by 1 person

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