This clip of Senator Lindsey Graham questioning now Supreme Court Justice Sotomayor about her judicial temperament is less of a gotcha than I was hoping from the Crooks and Liars website headline. Sotomayor was nasty on the bench, according the lawyer ratings. Kavanaugh does not have a reputation of being nasty in an appellate argument setting, does he? His opinions, though, appear to be Scalia-like, much like Goresuch's were, which means they tend toward the nasty. Still, I learned long ago not to take those often anonymous lawyer comments about judges very seriously. Twenty-odd years ago, I had a trial with a judge in Los Angeles named Sherrill Luke, who had a scathing "record" regarding his so-called judicial temperament. Yet, Judge Luke remains one of the most thoughtful judges I have ever appeared before, and my opposing counsel and I each went on the record after the trial--this was before the Internet--to say so (For those keeping score, it was a case I won on the defense so I think it significant the losing side's lawyer agreed with me about Judge Luke as well). The lawyers who came in after us for another trial reported back to me the same conclusion. Now perhaps the lawyer comments changed Judge Luke, but I never ran across anyone thereafter who verified Judge Luke ever acted that way.
Oh, and Judge Luke was an African-American (I think he is now deceased). This is why I find the attacks against Sotomayor to be taken with the proverbial grain of salt. Puerto Rican woman in federal court cases with silk stocking lawyers more often in front of her? Well, you can guess that result when she catches them with some legal argument that strikes other practitioners as phony. And really, did any of those folks not go in front of federal judges before? Federal judges in Los Angeles alone had scathing personalities on the bench for decades--Manny Real anyone (though my own experiences with Judge Real were fairly routine and I never fell on his bad side, luckily)?
I think the thing that is probably bothering a lot of trial lawyers across the nation at this point about Kavanaugh is his overall political hack nature, which was on display for the nation at the hearing on Thursday. When one then reads some of Kavanaugh's nasty and ideological dissenting opinions, one senses the same hackery. And we know all about Kavanaugh's hackery in the Starr Investigation of Clinton, and his hackery while serving the Bush II administration regarding torture, and other matters.
I know if I was on the bench, no matter how much I hate Wal-Mart for its labor practices, I would be doing my damnedest to ensure Wal-Mart had its due process rights respected, and in the given case in which I presided, the benefit of the same assumptions of either innocence or righteousness that any other litigant would be given. The thing we are at least supposed to be trained to do as lawyers is to step outside ourselves, see other perspectives, and understand how language can be inarticulate but correct, or very articulate yet be misleading--in other words, to hear and observe, and to recognize that truth sometimes is located in places we would not expect, or even expect to like. I learned that long ago when I started representing Exxon during the mid 1980s through early 1990s. I learned a lot about Exxon's products and services, and communicated fairly often with its claims representatives, who worked directly for Exxon because Exxon had high Self-Insured Retentions (SIRs), and so unless it was over $10 million, the SIR limit, it was all Exxon's money in defending itself and there was no insurance company to deal with. I remember once, in a case, I said, "Guys, fight his lawsuit! We can win it! You are right and the plaintiff is wrong!" The lead claims rep replied, "Mitch, juries hate us"--this was a year after the Valdez "incident"--"and we can't take the chance. We appreciate your support, but...Settle it." I found the claims reps almost to a person consistently humane, fair, and firmly rooted in reality that had a moral basis for the decisions they made. Fancy that. Oh, and right now, some of my clients have been of people who, and businesses that, would surprise most people who read my political comments. But I define Truth in the particular less than the abstract, because we must always remember, especially in a judicial setting, our most dire "enemy" may be right in the instance that brings the person or company there, and that "enemy" deserves both respect and be found to be correct if the facts and circumstances otherwise move us there. The integrity of precedent, the integrity of consistency, and the integrity of a process that may change precedent or consistency if facts or circumstances are different, demand a fealty that must rise above our own political philosophies and proclivities.*
In the mid-1990s, I was once invited to sit at a table at a lawyers' function as the late CA Supreme Court Justice Stanley Mosk. A woman at the table, the wife of a lawyer, asked how he remained even handed after all the years he had been on the bench and knowing he was a political liberal. Mosk struggled for words, and finally said, "I struggle." He then asked the table of lawyers, "How does one continue to maintain neutrality in any practical sense?" While I sensed he meant this rhetorically, I asked if I could offer a reply to the question. I then replied, "Whenever we are ready to make a decision as a judge, I think we should turn around and ask, 'If I am the losing side's lawyer, what would I make of the reasoning for my decision? Does it have the integrity of being reasonable and consistent with good sense and overall law?'" Mosk sat back and smiled. He then hit the table with his hand, and said that was the best explanation for being neutral he ever heard. Tom Umberg was at the table, who was a former Assistant Attorney General and at that time a local political figure I knew. Umberg had been the one who invited me to sit down. He sat back too and I felt he felt I was a bit too bold to have the temerity to reply to a question Justice Mosk meant to be rhetorical. Mosk, though, loved it, and we talked a bit into the night. It never got me anywhere of course, as I never learned to be a player, and Mosk was way too high in the elite sky to ever deign to speak to a lowly lawyer like me again. Sometimes I have thought over the years I am too much of a maverick mind to work in a judiciary that so often, these days, rewards political fealty and increasingly identity-politics status--though I am the first to say, if a minority or woman appears mediocre, "Why should only white male judges get to be mediocre?" To me, the beauty of affirmative action is it gives everyone a true chance. The belief in "meritocracy" is overrated, and sometimes there are true diamonds in the rough. Sotomayor benefited from affirmative action, as did Clarence Thomas. But they have each become people to reckon with as Justices of the Supreme Court and their backgrounds and philosophies are at least as important as Justices Butler or Fuller or any number of justices over the decades and now centuries. And Sotomayor has impressed me with her opinions in a way I was less sure about before she ascended to the Supreme Court. I thought she would probably be a female, Puerto Rican Breyer, and I sense she is moving into the realm of my hero of the past 50 years as far as Justices go, David Souter.
As I say, that is how life's experience works. It is messy, it is a continual trial to recognize others' points of views in any judicial setting. With regard to Exxon, I remain of the political view that oil and gas should be even more regulated like any other utility upon which our society relies (whether individuals or businesses), and would still support nationalization of oil companies. But that should not and does not matter in a judicial setting. When Exxon comes to the court, it deserves respect and it deserves fairness. Same with Wal-Mart. The 20th Century philosopher John Rawls was right. Justice is procedural, and Justice is best defined through a lens of fairness, or what is fair. My only additional sub-category about this is that justice sometimes has a long arc, and sometimes can be rough.
This has been especially true when we consider the plight of and oppression of minorities in our nation, of women in our nation most definitely. At some point, there is a political response that creeps into judicial ones, such as with Brown v. Bd. of Education, where the Supreme Court tired of legislative inaction to overturn segregation, which the Court members recognized had wrongly been given sanction in the Courts of the 1890s. I have seen Brown more as a restoration of what many framers of the post-Civil War constitutional amendments had sought, and the arguments that animated the Fourteenth Amendment continued in various guises. I am impatient with arguments which strike me as overly theoretical when I hear or read discussions about "substantive" v. "procedural" due process, since both types of due process often overlap when evaluating cases that touch either, particularly in "right to privacy" cases. I also tire of those who live in a world where they worry about whether "liberty" is "positive" or "negative."
This has been especially true when we consider the plight of and oppression of minorities in our nation, of women in our nation most definitely. At some point, there is a political response that creeps into judicial ones, such as with Brown v. Bd. of Education, where the Supreme Court tired of legislative inaction to overturn segregation, which the Court members recognized had wrongly been given sanction in the Courts of the 1890s. I have seen Brown more as a restoration of what many framers of the post-Civil War constitutional amendments had sought, and the arguments that animated the Fourteenth Amendment continued in various guises. I am impatient with arguments which strike me as overly theoretical when I hear or read discussions about "substantive" v. "procedural" due process, since both types of due process often overlap when evaluating cases that touch either, particularly in "right to privacy" cases. I also tire of those who live in a world where they worry about whether "liberty" is "positive" or "negative."
Anyway, what I find infuriating about Kavanaugh is he acts like the same political bomb thrower he was when working for Ken Starr and GW Bush, and in his Thursday outburst posing as testimony, he showed that tendency again.
Oh well. Let's see what happens this coming week.
* I use the word "integrity" from my close reading of the late legal philosopher, Ronald Dworkin.
* I use the word "integrity" from my close reading of the late legal philosopher, Ronald Dworkin.
