Courts

Justice Brett Kavanaugh Charms Judicial Conference But Ducks Supreme Court Ethics, Partisanship Concerns

When asked about the recent spate of Supreme Court ethics scandals, Kavanaugh deferred to what Chief Justice John Roberts said about that (which hasn’t been much).

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Justice Brett Kavanaugh (Photo by MANDEL NGAN/AFP/Getty Images)

Unlikely though it may seem, I have a bit of a special fondness for Justice Brett Kavanaugh. This might have something to do with the fact that his personal finances were the subject of my first substantive column when I started writing for ATL five years ago.

Plus, you’ve just got to be able to find something to like about a guy who shouts, “I still like beer!” at the U.S. Senate. While he has certainly made some bad decisions as a Supreme Court justice, and despite the allegations raised at his confirmation hearings, he does at least occasionally buck partisan expectations to make the right call in a case. That’s admirable.

So, when I heard Kavanaugh was going to speak at the Eighth Circuit Judicial Conference, I thought it would be worth my time to fill out the press registration paperwork. The event did not disappoint.

The first thing that struck me about Kavanaugh in person was his overwhelming physical ordinariness. Had he not been sitting up on stage speaking during his allotted time, I’m not sure I would have recognized him. He could be Tom Wambsgans’ older brother.

As soon as he opened his mouth, though, the façade of intense regularity crumbled. Kavanaugh is a very smart, well-spoken guy. He’s charming. And that voice is quite distinctive.

The format was a question-and-answer session with a pair of interviewers (both federal judges themselves). A good deal of the time was spent exploring the day-to-day operations of the Supreme Court.

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How often do the justices all have lunch together? About 65 times each year (and the rule at lunch is that you can’t talk about work). What does a typical day look like for the justices? Mostly reading alone, and writing, writing more, and rewriting, although oral argument weeks are more of a flurry of activity. What should a justice look for in selecting a Supreme Court law clerk? Someone who both has the backbone to tell you when you’re wrong and can easily get along with three dozen other law clerks.

Kavanaugh really was at his finest when discussing work at the Supreme Court that he’s most proud of. “Racism has no place in the criminal justice system,” he said, citing his concurrence in Ramos v. Louisiana which indeed dissects the racist origins of non-unanimous jury verdicts. Kavanaugh also mentioned his concurrence in NCAA v Alston where he sharply criticized NCAA practices as potential antitrust violations. Kavanaugh is well-known as a sports fanatic and quite a bit less well-known for his interest in antitrust law.

There were many moments of levity. The crowd’s favorite, based on the volume of laughter, was when Kavanaugh was asked about the Supreme Court’s take on the use of technology in the legal profession. “We’re probably not at the forefront,” he cut in with perfect timing, leaving his response at that.

Of course, there were undercurrents of some not-at-all funny themes as well. Kavanaugh repeatedly claimed the Supreme Court has lived up to deciding cases on the ephemeral idea of “the law” rather than on a partisan or political basis. The idea that “the law” is a tangible unchanging thing written down clearly somewhere and Supreme Court justices are simply discovering it for us might satisfy a certain segment of the lay population, but any decent lawyer can see how many Supreme Court rulings not-so-coincidentally align with the political viewpoints justices were specifically selected to promote.

When asked about the recent spate of Supreme Court ethics scandals, Kavanaugh deferred to what Chief Justice John Roberts said about that (which hasn’t been much). To be fair, Kavanaugh himself hasn’t been personally embroiled in these particularly controversies.

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Subjectively, I started to feel a little dizzy when I thought too much about the power in that room. The person up on stage, even if he’d really believed it to be the right call legally, had a direct hand in a decision that will result in thousands of unaddressed pregnancy complications, thousands of preventable medical issues, thousands of unwanted children coming into the world. The room was packed with judges. Years, decades, centuries of human lifespan had been confined to the penitentiary by the people in that room. My queasiness subsided after the session in the long line for the men’s room, waiting to unzip my trousers and relieve myself like everyone else. The lot of us were only regular human beings after all.

Well, there’s a little glimpse into the Eighth Circuit Judicial Conference, and specifically Kavanaugh’s remarks. There were other interesting goings on — I’ve got to at least mention that the Honorable Billy Roy Wilson is a delightful man — but I suppose those are stories for another time. Perhaps, one day, we can talk it through over beers with Justice Brett Kavanaugh.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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