Derrick Watson, one of the federal judges who ruled against President Trump’s executive order imposing an entry ban on Muslim nationals, began receiving death threats and had to be given round-the-clock protection in the wake of his rulings. The chief instigator was president himself, whose habit of berating judges who don’t rule as he’d like has created the equivalent of a hostile work environment for them — yet another collateral consequence of the toxicity emanating from Washington.
But don’t bother Brett Kavanaugh with any of this. As the Supreme Court nominee faced his second and third rounds of questions on Thursday before the Senate Judiciary Committee, he declined, even as he professed judicial independence, to stand up for his brothers and sisters in the federal judiciary. Among them was U.S. District Judge Gonzalo Curiel, the judge who presided over legal challenges to the president’s fraudulent Trump University, and was once the target of racist rhetoric from Trump.
When asked by Connecticut’s Richard Blumenthal if he condemns questioning a judge’s impartiality on the basis of his or her ethnicity, as Trump did with Curiel during the presidential campaign, Kavanaugh chose to dodge and save face rather than display judicial courage. “The way we stand up is by deciding cases and controversies without fear or favor,” he replied.
On this score, Kavanaugh is a notch below the last addition to the Supreme Court, Neil Gorsuch, who drew Trump’s ire when it came to light that he told Blumenthal privately that he found the president’s attacks on the courts “disheartening” and “demoralizing.” The White House reportedly had to scramble to convince Trump to not pull Gorsuch’s nomination. That slip of the tongue did not happen with Kavanaugh, who held steadfast to his view that commenting on a federal judiciary under siege is somehow commenting about politics. “We stay out of politics, we don’t comment on comments made by politicians,” he told Hawaii’s Mazie Hirono, who had suggested that Kavanaugh was bending over backwards to not bite the hand that gave him the nomination.
For all his credentials and judicial record, which he’s repeatedly defended as worthy of a Supreme Court seat, Kavanaugh hasn’t done a good job explaining his sycophancy toward Trump. Near the close of Thursday’s 12-hour session, Dick Durbin of Illinois tried to understand the provenance of Kavanaugh’s introductory remarks to the American public on the day of his prime-time unveiling. “Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh said of Trump on the day of his nomination, all but kissing the ring of his benefactor.
“What did you witness about this president’s appreciation for the vital role of the judiciary?” asked Durbin, clearly in disbelief that Trump even knows the meaning of respect for the courts. Kavanaugh’s answer can be distilled to this: I met with him a few times and couldn’t wait to get the nod. “I witnessed his discussion with me in my interview. His discussion with me the night he announced me at the White House. His discussion on that Sunday night when … I went to the White House, [and] he and Mrs. Trump met with me,” Kavanaugh said. That’s it. A few courtesy meetings was all the evidence Kavanaugh took into account when he concluded the president is a paragon of justice.
But Kavanaugh’s obsequiousness doesn’t end there. During the same prime-time address, Kavanaugh’s groveling bordered on untruth the size of Sean Spicer’s inauguration crowds: “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination.” What? Blumenthal seemed taken by this outlandish statement, and so he asked the judge for the factual basis for those talking points. Kavanaugh said they were entirely his: “Those were my words.” Then he added that he knows a lot about the process, past presidencies, and the mind of Bill Clinton, who at one point also made his own consultations on his Supreme Court nominees. The answer made little sense.
“I did look into it the best I could, thinking about the technological developments. I did think about very carefully. [Trump] talked to an enormous amount of people, based on my understanding of those 12 days,” Kavanaugh said, referring to the period between Justice Anthony Kennedy’s retirement announcement and the nomination. At Wednesday’s session, Kamala Harris had already harped on this point, asking the nominee straight up if somebody had told him to parrot those exaggerations about Trump. Kavanaugh insisted it was all him.
It is possible that Kavanaugh’s own partisan conception of presidential authority is what is driving much of this outward subservience toward Trump. In his infamous memorandum to Kenneth Starr and his team suggesting a slew of sexually explicit questions for Clinton, Kavanaugh was adamant that the president had to be held to account for bringing disrepute to the presidency. “The President has 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 shambles,” Kavanaugh wrote in 1998, days before Clinton was set to testify.
During Thursday’s session, that abiding commitment to the integrity of the White House occupant was nowhere to be found. When Cory Booker of New Jersey asked Kavanaugh if he still believes that character matters for the president of the United States, the judge didn’t have a straight answer. “I need to stay so far away from any political controversy,” Kavanaugh said. “Can you say if you have great respect for Donald Trump?” Booker followed up. Again, no real answer. Where’s the Brett Kavanaugh who demanded vindication for the president’s worst sins?
One can forgive the nominee for refusing to commit, as he has, to voting to enforce a subpoena or invalidate a presidential self-pardon, each a reasonable, unresolved controversy that may reach the Supreme Court in this most unreasonable of times. But refusing to stand on principle or for your fellow judges — those on the receiving end of endless complaints and recriminations, and all thanks to the head of a coequal branch of government — is not exactly a model of judicial courage. This failure to rise to the occasion tells you more about Kavanaugh’s self-interest in not seeing his nomination pulled out of spite — a risk Gorsuch endured but survived — than about his self-ascribed independence, either as a judge or from the president he’s worked so hard to impress.