John Paul Stevens: Don’t Confirm Brett Kavanaugh

As I have written previously, I have long been a huge admirer of former Supreme Court Associate Justice John Paul Stevens — not just for being a fellow Cubs fan.  However, I was surprised to see that Stevens broke a long-standing uwritten rule of former and current justices not to speak on pending nominations or confirmations. According to The Palm Beach Post, Stevens spoke publicly at an event with a retirement group that Kavanaugh should not be confirmed. The event was described as “closed” so it is not clear that Stevens realized that he would be quoted, but it was obviously a large crowd setting. Stevens said that the anger and language used by Kavanaugh raises serious questions of his temperament.  

Stevens said “I thought [Kavanaugh] had the qualifications for the Supreme Court, should he be selected. I’ve changed my views for reasons that have no relationship to his intellectual ability … I feel his performance in the hearings ultimately changed my mind.”

I have previously criticized Kavanaugh for some of his language and his tenor, particularly his reference to Democratic Senators and the Clintons.  Many people view the withholding of the allegations as a “hit job,” as he stated, but he should have left such political analysis to others.  As a judge, he should have known better than let these circumstances trigger such emotive outbursts.

Having said that,  I do not believe that the temperament of Kavanaugh can be judged from this one, unique circumstance. He was accused, among other things, of leading a virtual rape gang in high school. That would leave most people rather ticked and angry.

Putting aside our assumptions as to temperament, there should be no question about the need for former justices to stay out of the politics of confirmation. Indeed, it was a curious moment and subject for Stevens to break from his long observance of this rule.  He is breaking a long tradition of avoiding comments on political matters in order to criticize a nominee for commenting on political matters.

Clearly, Stevens is not required to avoid such commentary but it undermines the Court for current or former members to be seen as participating in the debate for confirmations.  Like Kavanaugh, his points made be correct but he is not the proper messenger.

233 thoughts on “John Paul Stevens: Don’t Confirm Brett Kavanaugh”

  1. Judge Kavanaugh’s entire life has been spent building a stellar reputation that has been trashed by the Dems. His family, including his young daughters, have received all kinds of threats including death threats. I’d say the man is entitled to be more than a little upset. I sure as h*** would be.

    1. ted breslin

      Another long-standing tradition is that nominees to the U.S. Supreme court don’t perjure themselves, have a background that includes
      underage drinking, serious sexual assault accusations, alcohol and/or gambling problems, and sociopathic personalities.

      1. The underage drinking could be overlooked. The rest of his misconduct, particularly lying under oath and his general lack of candor toward the tribunal should be a deal breaker.

        1. Provide the in context quotes of the question and the lie. You can’t and that is why you stick with generalities that are being spoon fed to those of the leftist persuasion.

            1. If you truly understood or cared about the things that you so vociferously comment on, you would not repeat that garbage. This is about principles of law and faith in our institutions, not Facebook,Twitter, and “meme[s]”. I suppose that if one has no principles, they cannot believe that others do hold our institutions and leaders to a higher standard. Blow as hard as you want, Tabarrok. You just come across as miserable and empty.

              1. Stark, as DSS says you just “keep repeating that meme.”

                Provide the in context quotes of the question and the lie. You can’t and that is why you stick with generalities that are being spoon fed to those of the leftist persuasion.

              2. She comes across as well informed and bright, while you are boring and dim.

      2. He didn’t perjure himself. You’re lying about this as you do about everything you comment on.

  2. To Liberty – Justice Stevens is 98 years old.

    To Drifter – yes this about Roe v Wade.

    Kavanaugh has been a judge for how many years . Has his temperament ever been perceived as being a “problem” during this time .

    Certainly his bad temperament would have manifested itself and been called into question , if it were.

  3. Kavanaugh should not be criticized for calling a spade an “f…ing shovel”. The confirmation process is fundamentally a political one where tribalism prevails. The candidate did nothing more than forcefully state the obvious. Roe v Wade has been driving this debate since the Bork debacle.

    1. yes he can use strong words. i liked his strong words

      but don’t misunderstand: this is NOT about Roevwade. That will not change. it is only a red flag waved at prochoice women to rile them up.

      and prolifers to to some extent; trust me, it will not change. they may nibble at it, but it won’t be over turned any more than brown v board will be.

      this is as you say, about tribalism, however. it is what it is. on both sides. run with your car, build it, and hope you can carry the day.

  4. How old is Stevens? Would he defend himself if it got out that he had sex with a female law clerk when he was on the Supreme Court? What if he had to confront the likes of Feinstein in a Senate hearing?

  5. “Clearly, Stevens is not required to avoid such commentary but it undermines the Court for current or former members to be seen as participating in the debate for confirmations. Like Kavanaugh, his points made be correct but he is not the proper messenger.”

    You need to stop the pretense of law and order in this country. Senator David Perdue has stated what most Americans are thinking when it comes to the “Resist” anarchists. Senators Booker, Karris, Feimstin, Coons, et al and the “Fourth Estate” have taken us down this path. Kavanaugh did what any of us would have done. His detractors would be lucky to have half of the moral integrity and steerling character his life has exhibited. You would serve your readers well by reminding them that historically all geopolitical empires have collapsed and the USA is not immune from following such a trajectory. It starts with corrupt leaders and Kavanaugh stated what polls consistently state about Congress members but particularly the Clintons: they are all untrustworthy

    the thing speaks for itself

    1. Janelle:
      Exactly, a mob runs three Republicans out of restaurants in direct violation of the Rule of Law and Stevens stands mute. A guy gives as well as he gets to the progenitors of that mob and he’s the reprobate according to the hoary ex-justice. Shut up Stevens.

      1. It’s time for “the women of this country” to “shut up and step up for once” for Kavanaugh.

        1. I think that you should post your real name and photo. Perhaps you should post your comment on a poster at the Kavan-Nope rally on Saturday at the Capitol. Sounds like you are asking for a fight, so you might enjoy putting your money where your mouth is. I am sure no one else has been anywhere near your mouth in quite some time.

          1. Why is it ok for a female to spew almost the exact words but not me? Why are you against females standing up for people who have been witch hunted? Do you think they all have to think like you? Why do you hate females and need to control their thoughts? I think we need an investigation on you. You sound unhinged and have a bad temperament.

            As for going to the Capital, from your tone, it sounds like a threat. Anyway, I can’t, I have too many lazy liberals needing my tax dollars.

            1. The sexist drivel pouring out of your keyboard/mouth is appalling. It is so easy to play “keyboard warrior” when you are anonymous. Go ahead, post your real name and a photo, and then just walk around in your neighborhood, proud to have told women they should shut up and do as you say. I dare you.

              1. every body come forward with your names now, the leftist doxxing and retribution crews are waiting to take your names and numbers and put them on long lists that will outlive us, so that you can be punished at any opportunity, for expressing ideas they don’t like

                that’s how they roll. maybe the right needs to roll that way too.

                1. Exactly. Stark is that brave (keyboard) warrior that knows her opponent not only won’t violate the rules of war, but will not fire unless fired upon.

              2. What was written that was sexist? You are the sexist thinking no women would stick up for Kavanaugh. Was Hirono a sexist? You’re the one making threats and trying to be the “tough guy”. The left really is unhinged today.

  6. So I guess Justice Stevens is ready for his character and family to be smeared, right? Let’s evaluate his absurd partisanship in election races, and scathing commentary about a conservative President. ANd some good old logical fallacies right? Stevens was divorced. – Divorced men are often cheaters in their marriage. Thus, Stevens cheated on his first wife and possibly even his second wife. Oh and another logical fallacy. Rich prep school kids like Stevens drink and are part of a rape culture – Stevens is a rich prep school kid and probably drank and raped women. This guy should be careful about casting the first stone in today’s world

    1. hes 98 and a legend. trust me he does not care. guys like this are way way beyond what anybody can do to hurt him., that’s one of the good things that come with age

  7. “Judicial temperament” is displayed on the bench. Kavanaugh before the Committee was the man in the dock.

  8. “I have previously criticized Kavanaugh for some of his language and his tenor, particularly his reference to Democratic Senators and the Clintons. “

    Get falsely accused of a heinous crime and sit there and take it? Why must one be a pajama boy, beta male to sit on SCOTUS? Stevens needs to get “Granny” Ginsburg to follow his lead and resign so they can address retirement groups together and ramble on about the good ol’ days when liberals could go around the legislative and executive branches to get what they wanted from the bubble-bound, “we got this” federal courts. These liberals remind me of the last of dinosaurs wailing about while sinking in the tar pits of history. Shut up JPS you had your day! And Kavanaugh was “righter”than you think since what comes around does go around.

    1. Congratulations on some of the finest intellectual flatulence around! Enjoy your tribalism!

      There are at least a dozen Federalist Society clones that could take the place of Kavanaugh, and their votes on the Court would not differ in any material respect from Kavanaugh’s if they joined the Supremes as opposed to him joining the Supremes. The factory that manufactures those clones doesn’t need Kavanaugh to be on the Court in order to protect the owners of that factory. Any one of the clones will do. They would offer the necessary protection to the owners of the factory without tarnishing the public image of the Court. Bad move by the owners in allowing the nomination of Kavanaugh.

      And if you think this is about “principles” as opposed to money and power, your intellectual flatulence is among the finest in the land.

      1. Leonard Leo didn’t put Kavanaugh’s name on The Federalist Society short list. Trump did by way of Don McGahn, presumably. Exactly how Ed Whelan and the infamous swift-boat firm Creative Response Concepts got hired to swift-boat Chris Garrett is a subject that our glorious free-press ought to be investigating. I would love to have enough information to cook up a conjecture or three about blackmail. It does look awfully suspicious. If Kavanaugh’s circle of friends were anything like Mark Judge’s portrayal of them, then there could be a great deal of compromising information against the whole lot of them. It’s a shame that the press doesn’t do it’s job anymore.

        1. Kav wasn’t on the Federalist Society “short list” because he’s not as right-wing as their recommended nominees. He’s a moderate, George W. Bush conservative and some of the rabid right wingers are going to be disappointed by him. I’m not a big Kav fan but I’m o.k. with him because anyone replacing him from the Fed Soc list would be way, way worse.

          1. yes Kav is pretty moderate. that didn’t matter to the Dems. they just want blood.

            1. Mr. Kurtz, I think you’re right. It’s about power more than anything else. They still can’t get over that Hillary lost.

      2. OC:

        Congratulations on some of the finest intellectual flatulence around! Enjoy your tribalism!
        Solidifying your position as Pajama Boy-in-Chief around here! Bravo.

    2. Does Stevens need slap therapy for sudden sleeping episodes, cervical bracing surgery, anti-sialagogues like Ginsburg? She is the best advertisement for term limits on Justices in the Supreme Court I can think of. As a general concern, we voters need to rethink the whole concept of term limits – for all of them.

      1. President Gerald Ford successfully nominated Stevens to the Supreme Court to fill the vacancy caused by the retirement of Justice William O. Douglas. He became the senior Associate Justice after the retirement of Harry Blackmun in 1994. Stevens retired during the administration of President Barack Obama and was succeeded by Justice Elena Kagan.

        They say that Kennedy retired specifically for the sake of Kavanaugh. But if you simply must amend the Constitution for the sake of preventing strategic retirements of Supreme Court Justices, then you’ll only need three-fourths of the State legislatures. Presumably you will need a Grandmother clause for RBG in order to get 38 out of 50 State legislatures to ratify the proposed Amendment.

  9. Retired Justice Stevens saw his war time service stateside doing the honorable job of code-breaking. At no time in his life was the ex-Justice in the line of fire like Judge Kavanaugh. He needs to walk in Kavanaugh’s shoes for a couple of weeks and then let’s see what his judicial temperament is.

    Right now I want the fiesty Irishman on the court. If Sotomayer can be the wise Latina, Kavanaugh can be the Fighting Irishman. 😉 Fair is fair.

    1. Paul – Being Irish myself, I don’t really see Kav as a “Fighting Irishman.” He certainly looks like an Irishman; in fact, with his looks, I could see him climbing out of an HVAV or plumbing truck in the Home Depot parking lot. But his family has been elite for at least three generations; his parents were both lawyers (and mother a judge!), and his grandfather graduated from Yale. I’m more typical of the Irish who came over during the famine; working class family and the first to graduate from college. I don’t have anything against Kav, but I don’t feel any affinity towards him as an Irish person either. He is a moderate conservative of the Geo W. Bush variety who will favor corporate interests over the workers, which isn’t Irish. But anyone who thinks he’s a right-wing zealot who will reverse a half-century of court precedent on social issues is delusional. Maybe if Clarence retires, Trump can appoint a right-wing extremist, but Kav isn’t the guy.

      1. Kitty Wampus – Release the Kraken!!! Bring us an abortion case to overturn!!!

  10. I’m sure the Dems will renounce Stevens and his advice because, you know, he’s an old white guy.

  11. First I looked at his comments and sensed “Follow The Leader.” Then I looked up his past. The most common comment was ‘reliable liberal.’

    The one word that was missing was Constitutional.

    Summation. A drone useful as ballast but only if one knows what that means

    That was enough. Further comment or credence was irrelevant.

      1. Nixon nominated eight people for the Supreme Court in a little less than six years. The four who were confirmed were Burger, Blackmum, Powell and Renquist. The four who were not confirmed were Haynesworth, Carswell, Hershel Friday and Mildred Lillie. IOW, there’s nothing especially new about Supreme Court nominees failing to be confirmed. The allegations of sexual assault against Kavanaugh are, indeed, unprecedented. The allegation against Thomas was sexual harassment. Chances are that a political scientist could explain why Burger, Blackmum, Powell and Renquist were confirmed while Haynesworth, Carswell, Friday and Lillie were not. I’d bet it has something to do with the much pejorated art of politics.

        1. He never nominated Friday or Lillie. John Dean interviewed Friday and determined he was unsuitable, a decision accepted by higher ups. Richard Poff, also considered, declined the appointment. Nixon rolled over when the ABA committee made a ridiculous objection to Lillie.

  12. There you go again, Turley. Criticizing the person who criticizes the person who deserves the most criticism instead of directing the brunt of your criticism to the person who deserves it most. How may other Supreme Court nominees have ever engaged in the kind of conduct during the course of their confirmation hearing such that they felt the need to pen an “apology” in the WSJ ? That unprecedented, cynical “apology” was not designed to smooth his relationship with the large number of people he completely alienated during his confirmation hearing and was not designed to get the votes of Democratic Senators. It was designed to shore up support of some Republican Senators who are now concerned about voting for him.

    You don’t put someone on the Court who verbally wags his finger at Democrats and says “what comes around goes around” during their confirmation hearing. It’s too late for any “apology.”

    Don McGahn screwed the pooch on this nomination, and Trump knows that. Heck, you should be criticizing McGahn if you realistically hope to get that Judgeship from the “Tax Planner in Chief.”

    1. “There you go again, Turley. Criticizing the person who criticizes the person who deserves the most criticism instead of directing the brunt of your criticism to the person who deserves it most.”
      This little gem of circular prose reads like the equally meaningful lyrics of Shama Lama Ding Dong from Otis Day:

      ‘Cause You’re
      Shama Lama
      Rama rama rama ding dong
      Baby huh
      You put the
      Ooh mou mou
      Oh oh oh oh
      Back into my smile, child
      That is why
      That is why
      You are my sugar dee dee doo

  13. I sense justice Stevens never went through the grilling that Kavanaugh is going through. From now on this could be what appointees will be put through. Who the hell wants to go through a process like this.

  14. Entertaining Justice Stevens opinion and take on Judge Kavanaugh’s magnafied dilemna leads me to inquire of his opinions on two of his former SCOTUS law clerks, namely Larry Rosenthal and Edward Siskel. Being that we all maintain a political connection to Chicago, his opinion on these latter two gentlemen would serve a much greater purpose than publicly critiquing Mr. Kavanaugh.

  15. Ruth Bader Ginsburg broke with tradition by making political comments while still a sitting justice, so the comments of a retired justice, while not ideal, are certainly less egregious. Another retired appellate court judge (NY State) was in the news tonight opposing Kavanaugh for the same reason – not the underlying charges, but his “temperament” during the hearings.

    1. It seems now that the ability to argue on factual bases has subsided, the only way opponents can hope to influence the vote is to apply subjective measures such as temperament and professional demeanor and hope they stick.

      1. Mr. Smith, what you call subjective measures might as easily be called qualitative judgements. I mention that because the word qualitative shares a root in common with the terms qualified and qualification. Are qualities objective (factual) or subjective (non-factual)?

  16. Humbug. Stevens was a manifestation of what’s wrong with the appellate judiciary, and should be ignored.

    1. I intuit that Tabarrok is waiting for someone to pose the obvious question: So what IS wrong with the appellate judiciary?

      I already know Tabarrok’s answer. If you follow the blawg, then chances are that you already know Tabarrok’s answer, too.

  17. Since the finger of God doesn’t seem to be forthcoming to write “Tekel, Tekel, Mene …” upon the wall we will have to make do with retired justice Stevens.


      Belshazzar’s feast, or the story of the writing on the wall tells how Belshazzar holds a great feast … Daniel reads the words “MENE, MENE, TEKEL, UPHARSIN ” and interprets them for the king: “MENE, God has numbered the days of your …

      [The ellipsis represents “The Blackout” of The Divine Hand.]

    2. David,

      RBD plays the role of tut tuting Daniel scolding the goy-gov all the time.

      Brett is more in the style of IN HOC SIGNO VINCES

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