Kavanaugh’s Farcical Supreme Court Job Interview: Guest MINDSETTER™ Geoff Schoos

Thursday, September 06, 2018

Guest MINDSETTER™ Geoff Schoos

Brett Kavanaugh

Imagine that an applicant seeking employment walks into the office of, say, a local online news organization. He gets a meeting with the publisher and submits his credentials, which upon inspection are incomplete. A significant portion of the applicant’s work history is missing along with relevant educational credentials.

Because the publisher’s a nice guy, and because he has a reporter’s position to fill, he inquires about these gaps. The applicant explains that while he didn’t major in journalism, English, or communications, he did take an Intro to Journalism class and earned an “A.”

When asked about his missing work history, the Applicant explains that he’s eager to discuss it with the Publisher, but his former employer has imposed a confidentially agreement forbidding such discussion. But the Applicant assures the Publisher that he handled complex issues with his former employer, who in turn was thrilled with the job the Applicant did. He just can’t discuss it.

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Because the Publisher is a nice guy he tells the Applicant that he’ll keep his credentials, consider them, and get back to him. After the Applicant leaves, the Publisher is left to wonder whether the Applicant’s visit was some form of practical joke or was the result of a full moon?

A couple of hours after the Applicant’s departure, the Publisher receives a phone call from his biggest advertiser asking how his nephew did on his interview and when he would start his new position? The Publisher must tell the advertiser that there’d be no start date for his nephew as he didn’t provide any detailed information as to his education or experience in journalism.

Advertiser takes this news very badly, rants that the Publisher misled the nephew and that if he isn’t hired, an advertiser will pull all his advertising from the news organization, and urge his friends to do likewise, thereby threating the news organization’s financial viability.

The Publisher finds himself in a quandary. If he hires someone presumably unqualified (we don’t really know whether the Applicant is or isn’t qualified due to lack of information), he risks jeopardizing the integrity of his news organization. If he stands firm and doesn’t hire the Applicant, he risks the financial viability of the organization, thus putting at risk the fates of employees who had no say in the matter.

If you think that this is implausible, think again. At play here are the professional integrity and the financial viability of a news organization. Any organization that operates in the public sphere, be it a news organization or a legal corporation or even a governmental agency, relies on the trust and confidence of the wider public to do its job. No matter the level of confidence enjoyed by such an organization, all it takes is a poison pill employee to undue years, if not decades, of building goodwill and community trust.

And if you’re thinking that the local fast food burger joint wouldn’t use this practice to hire counter help, you’d probably be correct. Nobody in their right mind would.

So here’s the Zen question of the day: why is this process being used to “hire” a Supreme Court Justice for a lifetime gig?

To be fair, we know a lot more about Brett Kavanaugh than we do about our fictitious Applicant. We know that he’s well-educated, that he worked in various jobs in his profession, and that for the past twelve years has served on the Circuit Court for the District of Columbia, a prestigious judicial appointment.

He has a body of written work that can be reviewed, but not all of it. Evidently, there are hundreds of thousands of documents that are under seal, documents that might shed light on Judge Kavanaugh’s judicial reasoning. We have some insights and are told that those insights are sufficient to inform us of Kavanaugh’s legal reasoning process. But is it?

Most of us have heard some version of the old trope, “If you ask two lawyers the same question, you’ll get five answers.” In some part, that’s true, but not for the reasons most think. The law is not a binary either/or entity, but is complex and often nuanced. What is the law ’s language? Is it clear or obscure? What are the facts to which the law will be applied? Is the law valid or does it run afoul of constitutional doctrine? What rights are impacted in this matter? Are any of the parties a legal protected class, which will determine the analysis of the “law?” What does the case law say relative to similar factual situations?

I came up with six legitimate questions and I have no idea what the facts and issues are! And trust me, there are at least twenty more questions that can be posed once the underlying facts of a matter are revealed.

Let me give a real example from the first day of the Senate Judiciary Committee’s hearing on the Brett Kavanaugh appointment. It’s clear that the Democrats want to slow the process until all the documents are obtained and analyzed. It’s equally clear that the Republican majority wants to wrap this up, if possible, before the weekend. It is in this context that a colloquy occurred between Committee Chair Grassley (R-IA) and Senator Blumenthal (D-CT) over Committee Rule 4.

The genesis of the colloquy was Blumenthal’s motion, under Rule 4, to adjourn the public hearing, go into Executive Section to resolve several procedural issues before resuming the public hearing. Blumenthal argued that Rule 4, a motion properly made required a vote of the full Committee. Grassley ruled that had the motion been made in Executive Session it would have been proper, as Rule 4 applied only to Executive Sessions. Blumenthal argued that there was no language of limitation in the Rule, and Grassley challenged Blumenthal to show in the Rule’s text that it could be employed in a public hearing.

Several minutes of hilarious hijinks ensued until Grassley prevailed. After all, he had the gavel. But that’s not the point. In this matter, we had a factual issue, a Rule’s text seemingly applicable to these facts, inconclusive language, and two equally valid views of its relevance. This is not unlike many issues that appear before courts, especially appellate courts. There was and will never be a neutral arbiter to decide the issue.

As this was going on it occurred to me, why doesn’t Kavanaugh turn to one of his handlers, say “hold my beer,” and set out to decide the conflict? Doing so would’ve been more instructive as to his thought process and judicial temperament than the multi-day kabuki job “interview” that we’ll witness.

Kavanaugh’s Farcical Supreme Court Job Interview: Guest MINDSETTER™ Geoff Schoos

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