Someone Who Can Handle All This?

I like to read things that challenge me, and Reflections on Judging, by Richard Posner, fits that category.

Posner is a well-known legal writer and practitioner. He's an appellate judge for the Seventh Judicial Circuit, the federal area of jurisprudence which includes Wisconsin. The court meets in Chicago.

The book is an excellent compendium (so far, because I haven't read it all yet) of the legal challenges that awaits judges of all levels. It is theoretical and pragmatic. It discusses things that judges and lawyers, I would guess, discuss often over dinner and drinks and phone calls and the like.

Example: Legal formalism versus legal realism. Just the names would suggest a difference in inclination. The former basically means that a judge has a pre-ordained system in her head, and tries to fit a situation or decision into that template--kind of like finding shelves in a closet to organize new things that need to fit there because there's nowhere else to fit them. It isn't necessarily rigid, because the flexibility derives from the subject matter.

Legal realism, on the other hand, basically means that situations must be taken with acceptance of newness, and decisions must be fashioned from either previous reasonings (if they fit) or new reasonings (if they don't). So in that same closet, judges either build new shelves or rearrange items or tear them down and start over with a new configuration.

It's an interesting dichotomy. I appreciated reading about it. It expressed the depth at which judges must interpret cases--one of those who-knew aspects.

Just past that was a listing of, "Sources of Complexity That Are External to the Judicial System". Posner just mentioned things that he has encountered, like Biochemistry, Bite-Mark Evidence, Energy, Engineering, Environmental Evidence, Fertility and Pregnancy, Gun Violence, Immigration, Jury Psychology, Marketing, Mental Illness, National Security, Physics, Sociology, Statistics (including Multiple Regression Analysis), Survey Research, and Telecommunications. I just plucked from the list he made.

And just past that was a listing of "Fields of Law Affected by External Complexity". Ready? Antitrust, Bankruptcy, Computer Crimes, Contracts, Copyrights, Corporations, Criminal Law, Education, Election Law, Evidence, Property, Second Amendment, Social Security Disability, Torts, Trademarks--and that, too, is an edited list.

Now take, if you would, a sheet of paper. Make these lists on two columns heading down the page. Then start drawing what you would think to be relatively logical connections. You'll be right about some of them. You'll also miss a whole lot of them. Contracts and National Security? Of course there is a connection, and a strong one. The government contracts out to corporations (oops, there's another one), certainly to do Energy analysis (Statistics), and things like that. And on and on.

So when it comes to approving federal judges, these kinds of conversations are vital. Above all, someone on the top court in the country has to be ready to take on the most confusing, complex, and society-changing topics, and be prepared to explain the decisions made in both legal and pedestrian language, designed to engender respect for the rule of law, regardless of whether we agree or not. In other words, they have to be pretty smart cookies.

Some seat-of-the-pants courtroom experience would be nice, too. But the present candidate for the Supreme Court, Brett Kavanaugh, doesn't have any. He has never tried a case.

Which begs the following question: What the hell happened to that conversation? The Senate isn't having it. The Senate can't have it. It is paralyzed.

It is paralyzed because of its recent past, in which one process for Supreme Court selection was torpedoed by the party with the power to do so, never mind the spirit of the Constitution. It is paralyzed because of new accusations, corroboration for which cannot possibly be established because of a window of FBI investigation that is impossibly narrow--thus confirming that the control over the process never really left the White House. It is paralyzed because Kavanaugh, decided to shout and blame and cry and condemn the process--much like the person who nominated him--instead of riding the high wave and saying with a reasonable tone (crucial to selling one's legal position) that he's imperfect, like the rest of us, had to do a lot of growing up, and he regrets anything he might have done to hurt someone else during his immature wing-dings (which, I think, would have soothed enough raw nerves to have continued down the path without nearly the tension), which a lot of us had, including Yours Truly.

Chance alone saved many of us from crueler fates during those regrettable nights, and perhaps it saved Brett Kavanaugh, too. By flinging himself upon that bed, sending the three people flying and allowing Christine Blasey Ford to escape, Mark Judge may have unwittingly saved Brett Kavanaugh from a sexual assault charge at the point at which it could have ruined him in 1982, because though Ford was clearly traumatized by such a stupid, sexist, drunken frivolity, and though Kavanaugh may have tried to remove her clothes, he actually didn't--which, I believe, is the basis of his denials, regardless of his intent. So yes, he may indeed get to weasel out of it, in his mind if not universally. Under pressure, people can create enough of a tweaking of reality to get, or remain, comfortable with a situation they may not wish to face.

Let's pull off the road a minute. Is this what we want on the Supreme Court? We got that with Clarence Thomas. Now we'll have two--two of nine, who seem to agree philosophically on nearly everything. That's not called an exception: that's called a judicial bloc.

Meanwhile, Brett Kavanaugh, ever the victim here, has not had his life ruined if he doesn't get the vote he apparently so desperately wants. He's still a federal appellate judge in the DC Circuit, perhaps the most prestigious of them all. He resigned his teaching position. It was not taken from him. Yes, he's been compromised. But Clarence Thomas has been on the Supreme Court 27 years now, and though a shadow remains (caused partly by his bitter refusal to ask any questions from the bench for more than a decade after his confirmation), his decisions have now gained traction over time. And anyone who subjects herself to the vicissitudes of this incredibly high-stakes vetting process should understand that phony smiles and glad-handing may certainly not be all there is to it.

But the politics of judicial nominations, especially at the federal level, have to this point been fairly well a gray area, often opaque and almost always handled behind closed doors, with one party giving way to the other with the knowledge that tomorrow's another day and, in the larger scheme of things, the other side will have its moment, too. That day has ended.

It's showdown time for Roe v. Wade, showdown time for women's rights. Which is why the irony of a woman coming forward, albeit reluctantly, 35 years after being scared out of her wits by an act that was potentially illegal and criminally punishable is delicious from one standpoint, utterly infuriating from another.

We are at a frightening moment in our history. The nation seems to be a train hurtling downhill with no one, no barrier, to stop it, no ability to calm things down. The only way to head it off, if only temporarily, is to reject Brett Kavanaugh and replace him with someone whose past doesn't have hiccups this big--though judicially, there's no way that Democrats and women's rights advocates will stave off the tilting of the Court to the right.

The conventional wisdom seems to believe that should Kavanaugh lose, there won't be enough time to vet another Supreme Court nominee before the mid-terms. But 45 has defied all conventional wisdom to this point, and Mitch McConnell, infuriated as he now is, would do his best to usher another candidate through. Remember another unpleasantry: the president--the guy with the ongoing list of candidates--can, and certainly would, make Congress stay in town, regardless of the members' desires to go home and campaign, and vote on another Supreme Court candidate: It's right there in the Constitution. If you think that card can't be played, think again. If you think the Republicans can't move faster than this, think again.

Politically, Kavanaugh's tribulations have rallied Republicans. Interest in the upcoming off-year elections is now just as high on the right as on the left. Democrats may easily have it worse in the Senate. Their only hope is to retake the House, if they can even do that.

I wonder what Judge Posner thinks about all this. Maybe we'll learn one day. Someone should publish something about how judicial decision-making has never avoided, and nearly always has included, political interests and ramifications. (It actually accelerated and very definitely established itself in 1803, with John Marshall's decision in Marbury v. Madison, the holy grail of the Court's declaration of its final arbiter status.) We now have an example of that, turned raw with exposure.

Be well. I'll see you down the road.

Mister Mark