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.