Federalist #78 requires a thorough review of the Kavanaugh accusations
Many conservatives tend to align themselves with the Federalist Society and the Federalist Papers. What may not be surprising is that most who cite the Federalist have never read any portion of that work. To summarize, the Federalist is a collection of 85 essays by Alexander Hamilton, John Jay, and James Madison that argued in favor of a new federal constitution. The counter position were the anti-federalists, the most famous of which was Thomas Jefferson. For purposes here, the relevant essay is Federalist #78 which discusses the propriety of a federal judiciary.
Federalist #78 begins by examining the existing confederation as being somewhat dysfunctional because of the lack of a federal judiciary. The context of a federal judiciary was considered in the context of the two other departments: the executive and the legislature. Collectively, these 3 departments, the legislature, executive, and judicial were codified in Articles I, II, and III respectively in the US Constitution. #78 address 3 primary things re: the judiciary: appointment, tenure, and the judicial authority between different courts. As to appointment, what we’re seeing now re: Judge Kavanaugh and the SCOTUS, #78 makes reference to the process being the same as enumerated in # 76 and 77. To summarize, such appointments are nominated by the executive and confirmed by advice and consent through the legislature. Accordingly, there is a bright line between the process of getting onto the bench and being on the bench. The former is an inherently political process. The latter, which the political process must take notice of, is to, or at least is supposed to be beyond the political process. The question then must turn to what the role of the nominee once confirmed. And to answer that, for the benefit of my conservative friends, I’d like to address that through a conservative modality by relying on Federalist #78.
The anti-federalists were concerned that a federal judiciary would be unaccountable and would operate with unchecked power. The federalists argued that the judiciary had neither the sword or the purse. The sword was about the executive. The purse was about the legislature. Both the executive and legislature can take active measures to attain a resolution. The courts instead, must wait for aggrieved parties to seek relief. It is there that courts, as intended by #78, have neither force nor will, but rather, only judgment. #78 also delves into the concept that neither the executive or legislature is in a position to decide whether their respective conduct is valid under the constitution. This is the basic notion that an accused cannot sit in judgment of himself and to some degree, argues against the notion that the President could parson himself. The idea of checks and balances is central in the Federalist and specifically in #78.
On checks and balances, the #78 goes on to say that the complete independence of the courts is “Peculiarly essential” in a limited constitution. By limited constitution, #78 meant limited government and limited legislature, something near and dear to modern conservatives. By limited legislature, that mean no bills of attainder (there must be courts an accused may available himself of) and no ex post facto laws (newly passed laws that make past legal conduct retroactively illegal). One of the essential elements to an independent judiciary is the tenure judges serve. The tenure in #78 is defined not by time, but by conduct and specifically, the conduct of “Good behavior.” In modern language, this means a lifetime term, subject to impeachment when conduct is not proper.
Good behavior is just that. #78 states that the “Standard of good behavior of office of judicial majesty is certainly one of the most valuable improvements in the practice of government.” Per #78, a sound judiciary affords us a barrier to despotism and a barrier to oppression from the representative body. The judiciary was intended to be the “Least dangerous” of the departments, again because it neither as the sword of the executive or the purse of the legislature. What’s implied is that for a proper working judiciary, the office holders (the judges) must be people of virtue. That’s really what good behavior is all about. It doesn’t mean one is perfect or a saint. Explicitly, it does mean that one is independent of either the executive and legislature. That’s why lifetime terms exist. And that’s why the current political process is entirely appropriate because realistically, there’s only one bite at the apple. The Federalist makes it clear that its intent is that office holders in the federal judiciary, must be of the highest virtue.
The question then must turn to how this affects the Kavanaugh nomination and to a large degree, whether Kavanaugh should be on the bench at all. That’s for the Senate to decide now. It seems to me the conservative viewpoint that would honor the Federalist and in particular Federalist #78, the Senate would want to have as much information as possible to make an informed decision where there would be confidence that Kavanaugh exhibited “Good behavior” during the confirmation process such that he would be qualified to serve on the SCOTUS in an independent way.
What is one key source of information? An FBI investigation. While it is true the FBI has looked into Kavanaugh’s background, it doesn’t mean that such investigation was perfect. It’s important to note that Kavanaugh is a sitting appeals judge on the DC Circuit. That would imply that any FBI investigation for him wouldn’t necessarily be as extensive as somebody else who wasn’t already vetted. FBI investigations don’t recommend or conclude. Rather, they merely provide a report of factual findings. Sometimes, those findings are contradictory to one another. To judge the weight and credibility thereof, that’s for the Senate to assess and it should do so with an eye to Federalist #78. However, it can only do so if it has as much relevant information as possible. And anytime an entity doesn’t want to avail itself of information, it wants in the alternative, ambiguity such that it no one side could be proved more likely than not. In our system, under such circumstances, the benefit of the doubt, under our system of due process (to the extent it applies) tends to go to the accused. That however, in this case, will be deemed to be a results-oriented outcome as opposed to a search for the truth. And that…puts things back to the political process because at the end of the day, the Legislature, the Senate in this case, is accountable to the people. And lest any conservative suggest that is unfair and not proper, I’ll respectfully point one back to the Federalist and illustrate where it states otherwise.