Hindsight is 20/20. And Americans on both sides of the political spectrum have demonstrated there had to be a better way to conduct the confirmation process for Brett Kavanaugh. IF only senators from both parties had taken a lesson from the hiring practices of others.
Ewing Marion Kauffman (or Mr. K as he was known in his hometown of Kansas City, Missouri) had an interesting way of assessing the character of those he employed, whether for his pharmaceutical company, the front office of the Kansas City Royals or his charitable foundation. He would count on his fingers the number of times an applicant used the word “I” during the interview. When the job candidates reached 10 self-references, Mr. K would thank and dismiss them.
I thought about Mr. K when I read Kavanaugh’s open letter in the Wall Street Journal. My finger count reached 10 in the middle of the third of eleven paragraphs. Kavanaugh uses “I” a total of 56 times. He would have been gone from Mr. K’s office long before he finished his defense.
Even though Mr. K passed away before I interviewed for a position at the foundation he endowed, his spirit permeated every inch of the building which bore his name. In particular, I recall my last of not less than 12 conversations with current associates during the interview process. Foundation CEO Lou Smith started the dialogue as follows, “Everyone else has asked you about your background and what you have done in the past, I want to find out who you are.” He asked about instances where I had helped people in need and how I made tough personal decisions. In other words, Lou was telling me there were dozens of people with the education and job experience to qualify for this position. He wanted to make sure the selection was someone who shared Mr. K’s values and fit in with the organization’s culture.
That’s what was missing in both Kavanaugh’s testimony last week and the WSJ op-ed. Without every having personally met Mr. K, I know exactly what he would have asked.
Mr. Kavanaugh, I’ve heard a lot about the culture at Georgetown Prep, where you went to high school. It appears you partied as hard as you studied. One of your classmates has even written a book about it. And it’s made people wonder if you had ever done anything which you regret or for which you are ashamed. But, I don’t care about that. I have different questions. Did you ever see either a young man or woman in distress or danger at one of these parties? And if so, how did you respond? Did you ever tell a classmate he’d had enough to drink? Did you ever stop a classmate from taking any inappropriate liberties with a young lady?
It’s not always a case of what you did. Sometimes it is more important what you didn’t do.
Sadly, Democrats also had an opportunity to make it easier for Republican senators to reject Brett Kavanaugh. There are dozens of ideological conservatives who Donald Trump could have picked to fill Justice Kennedy’s seat on the court. Democrats could have made a strong case we already have a shameless narcissist in the White House; we don’t need another one on the Supreme Court. But to do that they needed to concede that a replacement Supreme Court nominee would be a conservative.
If only they had gone to a few sympathetic Republicans and said, “If you tell Trump you cannot vote for Kavanaugh, Democrats will support another nominee who has the temperament which we all expect of a Supreme Court justice.” Ironically, that approach would have mirrored Supreme Court decision making at its best. The Court often looks for the easiest way to decide a case without delving into broader legal precedent or issues which defy finite resolution.
For example, even if you disagree with the Court’s decision to side with a Colorado baker who would not make a wedding cake for a gay couple, pay attention to Justice Kennedy’s writing on behalf of the 7-2 majority. It side-stepped the generic issue of gay rights verses religious freedom. It ruled on the specific issue in this case that the the Colorado Civil Rights Commission had demonstrated bias against the plaintiff. Justice Kennedy wrote:
At the same time the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression, neutral consideration to which Phillips was entitled was compromised here. The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.
Yes, someone other than Kavanaugh might also consider Roe v. Wade an example of judicial overreach and vote to reverse it. He or she may also think sitting presidents should not be forced to spend their time and energy on legal encumbrances. But, we should be much more comfortable if we feel the justices hearing such cases will be swayed by constitutional arguments rather than personal animus toward one of the litigants or if they rule based on logic and reason rather than raw emotion.
IF only Delaware Senator Chris Coons would huddle with his new BFF Arizona Senator Jeff Flake and agree that the Senate will consider and vote on an alternate nominee during the lame duck session. This would separate the important responsibility of advice and consent from the politics of the mid-terms. No one would be completely happy. But isn’t that what compromise and accommodation are all about?
For what it’s worth.
Dr. ESP