FacebookTwitterRedditEmail

Justices Go to Cocktail Parties and Brett Kavanaugh’s Confirmation

The emotional outrage over the nomination of Brett Kavanaugh to the Supreme Court raised numerous questions about who determines what is right or wrong. Kavanaugh’s defense – superbly satirized by Matt Damon on Saturday Night Live– was an equally emotional counter-attack to defend his reputation. After Kavanaugh had passed examination of his legal qualifications, allegations of improper behaviour called into question his personality. Who is Brett Kavanaugh? Should he be a judge on the Supreme Court?

Justice is not a simple concept to grasp. We sense what is right or wrong, but one’s sense of justice may not coincide with someone else’s. How to decide what is just? Who is to decide? There are courts, lawyers and judges just because there are no computer algorithms to render an objective verdict.

Professor John Rawls’s Theory of Justice set off an academic cottage industry in 1971. Rawls tried to set down a set of rules to determine what could be generally accepted as just. Rawls attempted to place justice on an even-handed basis to arrive at some form of consensus based on reasoning more than power or personality.

The logical rules Rawls developed were based on impartiality. He attempted to show that behind a hypothetical veil of ignorance, people could be impartial in reaching agreement about what was right or wrong. According to Rawls, the decision-making process could be rational and neutral.

Beyond Professor Rawls’s formalistic veil of ignorance, we all hope that justice will be impartial and neutral. It is in this sense that the rule of law is sacrosanct to liberal politics. The separation of the judicial from the executive and legislative is a fundamental part of any functioning democracy. It is not surprising, therefore, that for over 500 years Lady Justice has often been depicted as wearing a blindfold. The first known representation of blind justice is Hans Gieng‘s 1543 statue in Berne. Given Switzerland’s historic neutrality, the blindfold is an apt representation of justice’s supposed impartiality.

As Judge Kavanaugh wrote in his article in the Wall Street Journal trying to make amends for his emotional self-defense: “an independent and impartial judiciary is essential to our constitutional republic.”

But at the end of the day, people make decisions, and not blindfolded. Judges decide cases in courts of law. Human beings say what they believe is right or wrong.

Before Rawls’s tome and the Kavanaugh nomination, the famous American historian Henry Steele Commager said in a class discussing the role of the Supreme Court; “Justices go to cocktail parties.” What I believe he meant was that there is always an element of politics in judicial decisions, even on the highest courts. Justices on the Supreme Court, like justices everywhere, are influenced by who they are and what is going on around them. They cannot be perfectly neutral or impartial.

But they should try. In an illuminating article about Justice Ruth Bader Ginsburg in The New Yorker, Jill Lepore quotes the Supreme Court justice during her confirmation hearing on the difference between an advocate and a judge: “We cherish living in a democracy, and we also know that this Constitution did not create a tricameral system. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.”

Justices do go to cocktail parties. (Hopefully they don’t drink too much beer.) The rule of law depends on human judgment. The judgments must somehow go beyond prejudices or intuitions. The judges must strive to be impartial. There is a reason why Lady Justice is so often positively depicted as being blind.

Is justice ever really blind? Can countries or organizations be truly neutral or impartial? Switzerland’s neutrality, for example, like the declared impartiality of the International Committee of the Red Cross (ICRC) is very complex. A Swedish diplomat once explained to me that “Neutrality is the foreign policy of a small country surrounded by large neighbors.” That is the political reality behind the declared ideal of neutrality.

Rawls’s vision of a veil of ignorance, like the blindfolded Lady Justice or the ICRC’s impartiality are ideal types impossible to actualize in the real world. But that doesn’t mean justices shouldn’t try to be impartial. The law is always unfolding towards the ideal. Justices may go to cocktail parties, but we count on them to be more than sober when they make their decisions.

Kavanaugh’s confirmation process showed the tension between the actual and the ideal. The process removed any veil of ignorance. It revealed Kavanaugh, warts and all. Based on what we saw, we can no longer say that in Kavanaugh’s case Lady Justice is blind. Judges do go to cocktail parties, in his case rowdy beer parties. And no letter in the Wall Street Journal will erase what we saw during Kavanaugh’s self-defense. We saw who Kavanaugh really is, someone incapable of striving towards the impartial, neutral ideal of justice.

More articles by:
bernie-the-sandernistas-cover-344x550
Weekend Edition
September 20, 2019
Friday - Sunday
Ismael Hossein-Zadeh
Unipolar Governance of the Multipolar World
Rob Urie
Strike for the Environment, Strike for Social Justice, Strike!
Miguel Gutierrez
El Desmadre: The Colonial Roots of Anti-Mexican Violence
Jeffrey St. Clair
Roaming Charges: Pompeo and Circumstance
Andrew Levine
Why Democrats Really Should Not All Get Along But Sometimes Must Anyway
Louis Proyect
A Rebellion for the Wild West
T.J. Coles
A Taste of Their Own Medicine: the Politicians Who Robbed Iranians and Libyans Fear the Same for Brexit Britain
H. Bruce Franklin
How We Launched Our Forever War in the Middle East
Lee Hall
Mayor Obedience Training, From the Pet Products Industry
Louis Yako
Working in America: Paychecks for Silence
Michael D. Yates
Radical Education
Jonathan Cook
Israelis Have Shown Netanyahu the Door. Can He Inflict More Damage Before He Exits?
Valerie Reynoso
The Rising Monopoly of Monsanto-Bayer
John Steppling
American Psychopathy
Ralph Nader
25 Ways the Canadian Health Care System is Better than Obamacare for the 2020 Elections
Ramzy Baroud
Apartheid Made Official: Deal of the Century is a Ploy and Annexation is the New Reality
Vincent Emanuele
Small Town Values
John Feffer
The Threat of Bolton Has Retreated, But Not the Threat of War
David Rosen
Evangelicals, Abstinence, Abortion and the Mainstreaming of Sex
Judy Rohrer
“Make ‘America’ White Again”: White Resentment Under the Obama & Trump Presidencies
John W. Whitehead
The Police State’s Language of Force
Kathleen Wallace
Noblesse the Sleaze
Farzana Versey
Why Should Kashmiris be Indian?
Nyla Ali Khan
Why Are Modi and His Cohort Paranoid About Diversity?
Shawn Fremstad
The Official U.S. Poverty Rate is Based on a Hopelessly Out-of-Date Metric
Mel Gurtov
No War for Saudi Oil!
Robert Koehler
‘I’m Afraid You Have Humans’
David Swanson
Every Peace Group and Activist Should Join Strike DC for the Earth’s Climate
Scott Owen
In Defense of Non-violent Actions in Revolutionary Times
Jesse Jackson
Can America Break Its Gun Addiction?
Priti Gulati Cox
Sidewalk Museum of Congress: Who Says Kansas is Flat?
Mohamad Shaaf
The Current Political Crisis: Its Roots in Concentrated Capital with the Resulting Concentrated Political Power
Max Moran
Revolving Door Project Probes Thiel’s White House Connection
Arshad Khan
Unhappy India
Nick Pemberton
Norman Fucking Rockwell! and 24 Other Favorite Albums
Nicky Reid
The Bigotry of ‘Hate Speech’ and Facebook Fascism
Paul Armentano
To Make Vaping Safer, Legalize Cannabis
Jill Richardson
Punching Through Bad Headlines
Jessicah Pierre
What the Felicity Huffman Scandal Says About America
John Kendall Hawkins
Draining the Swamp, From the Beginning of Time
Julian Rose
Four Funerals and a Wedding: A Brief History of the War on Humanity
Victor Grossman
Film, Music and Elections in Germany
Charles R. Larson
Review: Ahmet Altan’s “I Will Never See the World Again”
David Yearsley
Jazz is Activism
Elliot Sperber
Captains of Industry 
FacebookTwitterRedditEmail