By Tom Lamia
Like you, perhaps, I spent time recently watching the Kavanaugh confirmation hearings before the Senate Judiciary Committee. I have views on this sort of thing that are deeply associated with my past life as a lawyer. I went to Harvard Law School, graduating in the mid-1960s, a classmate and friend of Stephen Breyer. That experience and my ten years of law practice in Washington, D.C. have given me a certain perspective on these hearings. Of course, I know that Washington, D.C. is a politically partisan place. Still, I was uncomfortable with the highly partisan environment at the hearings.
A principle that was important to lawyering in the eyes of my law school professors was that every person deserved legal representation by competent counsel. A related principle was that lawyers had a professional duty to represent unpopular persons and unpopular causes. This duty is one of legal ethics, generally, and of the responsibility of the lawyer as an officer of the court, specifically. That is what I was taught and that is what I believed (and still do). To the extent that I thought about the reasons behind these principles back in that distant time, I accepted them as necessary to our system of justice, a system that prides itself on fair and equal treatment of all who come within it.
In my early years of law practice, in Los Angeles, I was with a respected law firm founded by three Harvard lawyers on their return from World War II military service. The senior partners at the firm insisted that each of us, no matter how junior, actively participate in at least one outside civic activity. No effort was made to direct our energies to points on the political spectrum. The activities pursued showed no pattern or bias. Mine were the Constitutional Rights Foundation and an African Law outreach group (I spent two years teaching law in Africa). I do not recall any partisan political issue arising in these activities.
My firm did have a political alignment, arguably, in that we represented only the management side in our core labor relations practice. I do also recall an occasion when an important client, Union Oil Company, mildly complained about a cover photo in the LA County Bar Bulletin of a drilling rig off Santa Barbara, for which one of my partners was given photo credit. This created a stir within the partnership, but no apology was given and we did not lose the client. My public profile in politics was as a speaker for Alan Cranston and Tom Braden, both Democrats running for statewide office in 1968. Both lost. Within the firm, my choice of candidates and my efforts on their behalf were casually derided as quixotic, but not regarded as contrary to the firm’s image or its client retention or recruitment efforts.
I went to Washington, D.C. in 1980 to open a branch office for the firm. It was there that the scales fell from my principled eyes. Lawyers and lawyering in the nation’s capital means one must work within the machinery of electoral politics to succeed. High-minded intentions to serve all persons and all causes wilt before the reality that the town is riddled with rivalries, ambitions, grudges and back-scratching favor trading. Attracting clients and serving them well is a sophisticated political game.
But, I did not appreciate how much the process for nomination and confirmation of Supreme Court justices had been infected by this game.
Judge Kavanaugh is certainly an able, well-trained Washington lawyer. I find that to be part of the problem, because that is all that he is or ever was. Listening to his testimony at the hearings, I marveled at the skill in obfuscation that went into his answers. Senators of both parties shared that skill. They were all playing from the Washington lawyer’s handbook. The senators were pursuing their party’s electoral goals, so the efforts of several to entrap or lavish false praise on the nominee can be explained as part of the game, but it does not make them a positive or productive part of the process. As for the witness, his tortuous efforts to transform penetrating questions into softballs by burying them in “context” could be accepted, to a degree, by the burden of partisanship he carries as the champion of his party, but it is no way to get at relevance or clear statement.
Even so, I cannot escape the disappointment I feel for the effect this partisanship had on the selection and confirmation process. At one point in the hearing, one of the Republican senators, Cruz perhaps, sought to resurrect Judge Kavanaugh from harm that might have been done by Democrats’ references to Kavanaugh’s employment in partisan positions for all but four of the thirteen years following his judicial clerkships before becoming a judge. Senator Cruz pointed out that Justice Breyer had been Chief Counsel to the Senate Judiciary Committee, a partisan appointment before his confirmation, and no issue was made of that. Justice Breyer’s service as Chief Counsel was for one year, in 1980, fourteen years before his confirmation to the Court in 1994. Breyer was a professor at Harvard for 29 years and a federal Circuit Court Judge for 13 years before being nominated. Those were not partisan positions.
I didn’t like either side of the argument, as it was unfair to both Kavanaugh and Breyer. There was a time when experience as a lawyer for a prestigious and respected congressional committee or for an Independent Counsel appointed by Congress was considered a high qualification for a judicial appointment. Now, apparently, it is a negative.