Senate Should Worry More About Judicial Independence Than Character of Brett Kavanaugh

By Tim Büthe

Too much of the discussion about Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court has been about alleged sex abuse and drunkenness. To be sure, the issues of sexual violence and the abuse of privilege, raised in the context of the Kavanaugh hearing, are very important and warrant more than the one-day perfunctory, partisan Senate hearing they have received.

But the discussion of whether the 1978 social mores of “Animal House” and corresponding behavior of teenage boys is relevant for the decision about elevating Judge Kavanaugh to the Supreme Court today distracts from an extremely important issue at stake in the Kavanaugh confirmation process, which is not getting nearly the amount of attention it deserves: judicial independence.

There are big questions about Judge Kavanaugh’s independence, which should worry all of us, regardless of partisan affiliation or whether we believe Christine Blasey Ford’s allegations of sexual assault or his denial.

There are numerous reasons to worry about Brett Kavanaugh’s independence as a judge and justice. Maybe most disconcerting are major open questions about how Mr. Kavanaugh has financed his lifestyle, from the purchase of his $1.2 million “starter home” in 2006 to major credit card debt suddenly paid off, to how he paid for a $92,000 country club initiation fee on a government salary in 2016.

He may have had perfectly legitimate sources of income beyond his salary. But his disclosures so far don’t add up. And as long as he is trying to keep sources of substantial income secret, citizens and Senators ought to worry about his susceptibility to blackmail or other undue influence by those who are in a position to spill those secrets.

His partying in high school and college also matters for this reason. I generally don’t care what or how much a middle-aged man liked to drink back in high school or college. In fact, it’s really none of my business, nor the Senate’s. But there is a wealth of evidence now, including multiple eyewitness accounts, suggesting that Kavanaugh was a heavy drinker in high school and well beyond — and that it affected his behavior. He categorically denies any of this, but his protestations don’t add up.

It’s Kavanaugh’s attempts to maintain a public appearance at odds with some witness accounts that should worry us. Greatly.

When public figures have dirty laundry to cover up, they are easily compromised. In the case of former House Speaker Dennis Hastert, attempting to hide earlier sexual misconduct from public exposure led him to pay hush money in illegal ways. Here as so often, the cover-up was far worse than the original transgression. In that case, it was the illegal payments that ultimately landed him in prison.

Similarly, anyone in a position to disclose what Judge Kavanaugh is trying to keep secret would be in a position to gain leverage over him to get him to do things he knows he shouldn’t be doing.

In my research on law and politics, I have found judicial independence to be an important determinant of whether law and courts work as they should. Those who are hiding secrets lack true independence. We shouldn’t put them on America’s highest court.

Tim Büthe is a senior fellow of the Kenan Institute for Ethics at Duke University, as well as a professor for political science and public policy at the Technical University of Munich, Germany.