Uneasy Money

It now seems besides the point, but I want to go back and consider something Judge Kavanaugh said in his initial testimony three weeks ago before the Senate Judiciary Committee, now largely, and deservedly, forgotten.

In his earlier testimony, Judge Kavanaugh made the following ludicrous statement, echoing a similar statement by (God help us) Chief Justice Roberts at his confirmation hearing before the Senate Judiciary Committee:

A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy. As Justice Kennedy explained in Texas versus Johnson, one of his greatest opinions, judges do not make decisions to reach a preferred result. Judges make decisions because “the law and the Constitution, as we see them, compel the result.”

I don’t decide cases based on personal or policy preferences.

Kavanaugh’s former law professor Akhil Amar offered an embarrassingly feeble defense of Kavanaugh’s laughable comparison, in a touching gesture of loyalty to a former student, to put the most generous possible gloss on his deeply inappropriate defense of an indefensible trivialization of what judging is all about.

According to the Chief Justice and to Judge Kavanaugh, judges, like umpires, are there to call balls and strikes. An umpire calls balls and strikes with no concern for the consequences of calling a ball or a strike on the outcome of the game. Think about it: do judges reach decisions about cases, make their rulings, write their opinions, with no concern for the consequences of their decisions?

Umpires make their calls based on split-second responses to their visual perceptions of what happens in front of their eyes, with no reflection on what implications their decisions have for anyone else, or the expectations held by the players whom they are watching. Think about it: would you want a judge to decide a case without considering the effects of his decision on the litigants and on the society at large?

Umpires make their decisions without hearing arguments from the players before rendering their decisions. Players, coaches, managers, or their spokesmen do not submit written briefs, or make oral arguments, to umpires in an effort to explain to umpires why justice requires that a decision be rendered in their favor. Umpires don’t study briefs or do research on decisions rendered by earlier umpires in previous contests. Think about it: would you want a judge to decide a case within the time that an umpire takes to call balls and strikes and do so with no input from the litigants?

Umpires never write opinions in which they explain (or at least try to explain) why their decisions are right and just after having taken into account on all the arguments advanced by the opposing sides and any other relevant considerations that might properly be taken into account in reaching a decision. Think about it: would you want a judge to decide a case without having to write an opinion explaining why his or her decision is the right and just one?

Umpires call balls on strikes instinctively, unreflectively, and without hesitation. But to judge means to think, to reflect, to consider both (or all) sides, to consider the consequences of the decision for the litigants and for society, and for future judges in future cases who will be guided by the decision being rendered in the case at hand. Judging — especially appellate judging — is a deeply intellectual and reflective vocation requiring knowledge, erudition, insight, wisdom, temperament, and, quite often, empathy and creativity.

To reduce this venerable vocation to the mere calling of balls and strikes is deeply dishonorable, and, coming from a judge who presumes to be worthy of sitting on the highest court in the land, supremely offensive.

What could possibly possess a judge — and a judge, presumably neither an idiot nor insufficiently self-aware to understand what he is actually doing — to engage in such obvious sophistry? The answer, I think, is that it has come to be in the obvious political and ideological self-interest of many lawyers and judges, to deliberately adopt a pretense that judging is — or should be — a mechanical activity that can be reduced to simply looking up and following already existing rules that have already been written down somewhere, and that to apply those rules requires nothing more than knowing how to read them properly. That idea can be summed up in two eight-letter words, one of which is nonsense, and those who knowingly propagate it are just, well, dare I say it, deplorable.

Senator Kamala Harris asked Judge Kavanaugh if he considered the infamous Supreme Court decision in Chae Chan Ping v. United States (AKA Chinese Exclusion Case) as a valid precedent. Judge Kavanaugh disgraced himself by refusing to say that the case was in error from the moment it was rendered, no less, if not even more so, than was Plessy v. Ferguson overturned by the Supreme Court in Brown v. Board of Education.

The question is why would he not want to distance himself from a racist abomination of a decision that remains a stain on the Supreme Court to this day? After all, Judge Kavanaugh, in his fastidiousness, kept explaining to Senators that he wouldn’t want to get within three zipcodes of a political controversy. But, although obviously uncomfortable in his refusal to do so, he could not bring himself to say that Chae Chan Ping belongs in the garbage can along with Dred Scott and Plessy.

Here’s the reason. Chae Chan Ping is still an important precedent that has been and continues to be relied on by the government and the Supreme Court to uphold the power of President to keep out foreigners whenever he wants to.

In a post in March 2017, I quoted from Justice Marshall’s magnificent dissent in Kleindienst v. Mandel, a horrible decision in which the Court upheld the exclusion of a Marxist scholar from the United States based on, among other precedents, the execrable Chae Chan Ping decision. Here is a brief excerpt from Justice Marshall’s opinion, which I discuss at greater length in my 2017 post.

The heart of appellants’ position in this case . . . is that the Government’s power is distinctively broad and unreviewable because “the regulation in question is directed at the admission of aliens.” Brief for Appellants 33. Thus, in the appellants’ view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the “political” branches of Government, Congress, and the Executive.

These cases are not the strongest precedents in the United States Reports, and the majority’s baroque approach reveals its reluctance to rely on them completely. They include such milestones as The Chinese Exclusion Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149 U.S. 698 (1893), in which this Court upheld the Government’s power to exclude and expel Chinese aliens from our midst.

Kleindienst has become the main modern precedent affirming the nearly unchecked power of the government to arbitrarily exclude foreigners from entering the United States on whatever whim the government chooses to act upon, so long as it can come up with an excuse, however pretextual, that the exclusion has a national security rationale.

And because Judge Kavanaugh will be a solid vote in favor of affirming the kind of monumentally dishonest decision made by Justice Roberts in the Muslim Travel Ban case, he can’t disavow Chae Chan Ping without undermining Kleindienst which, in turn, would undermine the Muslim Travel Ban. 

Aside from being a great coach of his daughter’s basketball team, and superb carpool driver, I’m sure Judge Kavanaugh appreciates and understands how I feel.

Whatta guy.