Yes. It’s not all that matters, but it’s a factor that senators should consider as more than an afterthought

Daniel Hemel
Jul 11, 2018 · 6 min read

Judge Brett Kavanaugh is a nice guy. That understates the point. As his former clerks (many of whom are registered Democrats) write in a letter to the Senate Judiciary Committee, “He is unfailingly warm and gracious with his colleagues no matter how strongly they disagree about a case, and he is well-liked and respected by judges and lawyers across the ideological spectrum as a result.” I clerked for a different D.C. Circuit judge, but I experienced Judge Kavanaugh’s grace and generosity in small ways too. He made an effort to learn the names of all the clerks for other judges in the courthouse — and to learn something about them as well. (We talked about the race that I was training for then.) He listened to our views on cases. Even after I clerked, he e-mailed me out of the blue with thoughtful comments on a law review article that I co-authored, along with suggestions for future research.

Kavanaugh’s grace and generosity are not directed only at D.C. Circuit clerks and law professors. We’ll hear more in the coming weeks about the girls’ basketball teams that Kavanaugh coaches and the elementary school students whom he tutors. And I expect that we’ll hear from many more people whom Kavanaugh has helped in much more profound ways than, e.g., offering tips about how best to approach the Boston Marathon’s Heartbreak Hill.

But does it matter — for purposes of his confirmation — that Brett Kavanaugh is nice? An interesting discussion on Twitter between Washington University School of Law’s Dan Epps and my colleague Todd Henderson prompted me to think more deeply about the question. My view is “yes”: It matters — and not just at the margins. It’s not the only thing that matters. For example, if I were a senator in 1930, I would not have voted to confirm the notoriously racist Hoover nominee John J. Parker — regardless of what he was like in personal interactions. And if I were a senator in 1939, I probably would have voted to confirm Felix Frankfurter even though he was, by many accounts, not nice.

Still, niceness — and more broadly, the moral qualities distinctive to an individual (what we might call “character”) — should matter, for at least five reasons:

— (1) Empathy. I agree with former President Obama that empathy is a quality of good judging. (For a defense of this view, see this excellent essay by George Washington University Law School’s Thomas Colby.) An empathetic judge still might vote to overrule Roe v. Wade, and might take any number of other positions with which I disagree. But an empathetic judge will take seriously the plights of the people who come before her or his court — whether they be teenage women seeking to end a pregnancy or nonviolent criminal defendants facing draconian sentences or refugees fleeing persecution and seeking asylum in the United States. The fact that a judge is gracious, generous, and kind in personal interactions is at least an indication that empathy is a quality that she or he possesses. In this regard, of course, it matters much more how Judge Kavanaugh interacts with people who are not Yale Law School graduates with coveted clerkships or law professorships.

— (2) Role Model. Supreme Court justices are, or should be, role models. Justice Ruth Bader Ginsburg’s remarkable second career as a pop culture icon is perhaps a case in point. While I would be surprised if teenagers start wearing “BMK” t-shirts any time soon or if Judge Kavanaugh’s life becomes the subject of children’s picture books, he too has the potential to be a role model. We should ask of potential role models that they display the qualities in their daily interactions that we would want to see emulated in our children (and ourselves). Grace, generosity, and kindness certainly are such qualities.

— (3) Power. Supreme Court justices occupy positions of power. The #MeToo movement has illustrated the ways in which people who occupy positions of power can use that power to extract and abuse. (Bill Clinton illustrated that too.) Before elevating someone to a position of even greater power, we should ask how they will use it. Judge Kavanaugh, by all accounts, has treated clerks, colleagues, and staff members with the utmost respect. It is, though, entirely legitimate and important for senators to ask Judge Kavanaugh what he knew about allegations of sexual harassment against former Ninth Circuit Judge Alex Kozinski, for whom Kavanaugh clerked in 1990–1991. Of course, I don’t think that everyone who worked closely with Judge Kozinski and maintained cordial relations with him afterwards should be disqualified from higher office, any more than I think the same about those who worked closely with President Clinton. Details matter, and hopefully the confirmation process will bring more of those details to light.

— (4) Incentives. The universe of people who stand a chance of becoming Supreme Court justices is small. The universe of people who stand a chance of becoming federal judges or Senate-confirmed executive branch officials is larger — in the tens of thousands. Making character one of the criteria for confirmation to these positions will likely have positive incentive effects, though I don’t want to put too much emphasis on this point. Anecdotally, I have a number of friends who comply with nanny tax obligations in part because they think that they might be nominated to something-or-other in the future and they don’t want to suffer Zoë Baird’s fate. There are probably many more cases of individuals who have chosen not to lie, cheat, or treat those around them with disrespect because of some fear about how this might look on C-SPAN one day. In Judge Kavanaugh’s case, I think he is gracious, generous, and kind because he is gracious, generous, and kind — not because he anticipated that the people whom he has treated well in life will go to bat for him in a future Supreme Court confirmation hearing. But if a character criterion for confirmation contributes positively to civility in Washington, D.C., and other seats of power, well, that’s a nice result.

— (5) The Functioning of the Court. Finally, and probably most importantly, I think our polity is stronger when the Supreme Court works well. Some will disagree with this point — they see the Court as an obstructionist institution and are happy if it is paralyzed by internal conflict. I disagree. First, I want the Court to enjoy popular legitimacy so that it can act as an effective check against an overreaching president or a runaway Congress and so it can serve as a safeguard of individual rights in times of war, terror, hysteria, et cetera. Second, much of what the Court does on a day-to-day basis is the mundane but important work of resolving circuit splits and providing clear guidance to lower court judges — ideology aside, we should want our governing institutions, including the judiciary, to operate smoothly. The Court performs its constitutional and quotidian functions better when its members work across ideological lines, listen to each other’s views, and strive — where possible — to find common ground. The fact that Judge Kavanaugh surrounds himself with ideologically diverse law clerks and maintains good relations with liberal colleagues on and beyond the D.C. Circuit is an indication that he will contribute to the Court’s institutional strengths.

To repeat: Niceness is not all that matters in a Supreme Court justice. Senators will likely learn more about Judge Kavanaugh’s views from his Bush administration e-mails, and maybe (though doubtfully) from his testimony in front of the Judiciary Committee. They (or their staffers) will pour over the hundreds of opinions that he has written as a D.C. Circuit judge and the law review articles he has published. If we learn (to use an unlikely hypothetical) that he has secretly committed himself to overruling Roe v. Wade, then all the niceness in the world shouldn’t save his confirmation. But Judge Kavanaugh’s niceness — as evidenced by his interactions with colleagues and clerks, with his daughters’ basketball team and his elementary school mentees, and with hundreds of others — should matter in the confirmation process as more than an afterthought.

Whatever Source Derived

Thoughts on tax and the law

Daniel Hemel

Written by

Assistant Professor; UChicago Law; teaching tax, administrative law, and torts

Whatever Source Derived

Thoughts on tax and the law

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