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Civility As A Shield


Dahlia Lithwick on the inane civility arguments for Brett Kavanaugh, which are used to exempt conservatives from criticism more broadly:

This phase was launched, in Kavanaugh’s case, with the Carpool Wizard column from a school parent extolling the personal qualities Judge Kavanaugh brought to his kids’ school. It was immediately followed by the Radical Feminist column from Yale’s Amy Chua, about the judge’s graciousness to the offspring of Yale faculty. It reached its apogee with the column in last weekend’s Kind Conservative testimonial by a Supreme Court advocate who will someday practice before him. The presumption throughout has been that the best way to heal the corrosive partisan warfare in the Senate is for Democrats to poke themselves repeatedly in the liver with tiny cocktail forks because, after all, someone has to stand down.

I am not here to pile on to the necessary and sufficient critiques advanced by liberals who don’t believe that niceness and being polite on a panel are the key metrics by which to evaluate the future decider of constitutional liberty. I like Brett Kavanaugh. If niceness-to-me-alone is the sole indicator of judicial qualification then, like the authors above, I’m all in. Kavanaugh has never been anything but kind and courteous to me, personally. Unfortunately, that calculation leaves out millions of nameless, faceless, vulnerable people who don’t often get a chance to write op-eds about the carpool skills and free-floating niceness of Article III jurists.

Niceness is nice. I’d even go so far as to venture that niceness is very, very nice. But it’s not the basis from which to offer someone lifetime tenure on the highest court in the land. And I am still waiting for the Republican appellate lawyers, D.C. lobbyists, and operatives to stand up and tell us how “nice” Judge Garland was. Because I would submit that he was just about equal in “niceness” to Kavanaugh, and yet it mattered not one bit to anyone two years ago, since at that time, niceness was irrelevant. At the very least, then, we should be able to agree that if Garland’s kindness to small animals and assorted D.C. charities was immaterial in 2016, Kavanaugh’s warmth of character should not be an issue in 2018.


Rather than the deep substantive discussion that the moment demands, the treatment of Kavanaugh’s nomination has been dominated by aggrieved demands for civility, decency, and the earnest pinkie swears of the 1 percent. But the person who drove a stake in the heart of whatever remained of civility and decency is the same person who nominated Kavanaugh. This is Trump’s M.O.: to offer neither civility nor decency to anyone who isn’t wealthy and powerful, and then to demand it for himself and those with whom he chooses to associate. By these lights, tearing apart families seeking asylum is civil. Refusing service to Sarah Huckabee Sanders is not. Trashing the media and people of color is civil. Speaking ill of Judge Kavanaugh is not.

So let’s be done with the civility of convenience, which we’ve learned only flows in a single direction and doesn’t apply if you are poor or brown or suffering. If confirmed, Kavanaugh could spend the next four decades on the court. We can’t afford to let the numb deference Trump continues to demand for himself and his allies immunize Kavanuagh’s record from thorough examination just because he’s a lovely guy. Teen asylum-seekers at the border don’t get special solicitude for being sweet people.

Ask any law clerk at the Supreme Court to name the warmest, kindest justice on the bench and they will tell you Clarence Thomas is that guy. Every time. That’s not nothing, but it isn’t anything close to everything. Being lovely to people around you isn’t a proxy for judicial ideology and methodology. Let’s please respect Kavanaugh enough to stop talking about his mad carpooling skills. It’s insulting to him as well as to the rest of us. He is being elevated to a lofty office. Let’s take a page from the Supreme Court and start appreciating the enormity of that office itself. The state of Brett Kavanaugh’s niceness is not a constitutional question.

And this is all a subset of “Borking”; the idea that it’s wrong to talk about what Kavanaugh will actually do because that isn’t nice, and he’s a nice guy! As nice as the “ha ha, I put a guy in the position of having to choose between his job and freezing to death” guy, who is probably nice to many of his clerks too!

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