The mask slips off: Appointing judges is just as political as electing them


By Robert Willmann

On Friday, 5 October, the U.S. Senate voted on whether to end unlimited debate and the possibility of a filibuster on the Supreme Court nomination of Brett Kavanaugh, through a vote on "cloture", the gimmick allowing Senators to do a filibuster or stop one, without actually having to stand up and filibuster.

Shortly after Supreme Court Judge Anthony Kennedy announced on 27 June 2018 that he would be leaving the court, we discussed here on SST the fact that former president Obama, former Democratic Democratic majority leader Harry Reid, current minority "leader" Charles Schumer, and Senate Democrats muscled through a new "interpretation" of the Senate rules that allowed a vote on cloture to require only a simple majority instead of 60 votes, for federal district trial court and court of appeals judges, and other presidential appointees; but for supreme court nominees, 60 votes were still required at that time [1].  This allowed the Obama administration to push through nominees easier. 

But when Donald Trump was elected president, the vacancy on the supreme court after the death of Antonin Scalia remained.  Trump appointed Neil Gorsuch.  A cloture vote was demanded to end debate on Gorsuch and to proceed to a final up or down vote.  But the vote was not successful and did not get the required 60 votes.  The Senate majority leader, Mitch McConnell, then followed up on what he said when the Democrats changed the filibuster rule:  "You'll regret this, and you may regret it a lot sooner than you think".  He did what Harry Reid had done, and with the slight Republican majority, reinterpreted the Senate filibuster rule to remove the 60-vote requirement for supreme court nominees.  The Democrats could hardly effectively protest, as they had unclean hands from their own prior actions.  A second cloture vote was taken on Gorsuch, and it passed, since only a simple majority was required.  On the subsequent final vote, he was confirmed. Had Obama et. al. not been greedy and arrogant, the monkey would have been on the back of the Republicans about changing the filibuster rule, and I think it is likely that McConnell would not have changed it.  The dynamic in confirming supreme court justices appointed by Trump would have been dramatically different.

When the Kavanaugh nomination was made, the Democrats again did not think past the end of their noses, and tried to block him through a three act play with an accusation of sexual misconduct made by Christine Blasey Ford.  Two more accusations then conveniently showed up, along with obviously coached "protesters".  But with no real supporting evidence, the entire approach began publicly to implode on itself, and behind the scenes, enough votes were put together to confirm Kavanaugh's appointment.


However, in my opinion, the nomination could have been stopped, had the focus been on his involvement in the Anti-Patriot Act (USA Patriot Act of 2001, Public Law 107-56); and his positions on domestic surveillance and search and seizure under the 4th Amendment to the U.S. Constitution [2].

A page and a half opinion of his from the federal Court of Appeals for the D.C. Circuit is enough–

A civil case concerning the gathering of all telephone "metadata" by the National Security Agency (NSA) was at the court of appeals, and a request was made by the parties bringing the case that all the judges on the court — called "en banc" — hear the request [3].  It was denied without comment, the usual procedure, except for Kavanaugh, who agreed but delivered a short and revealing opinion.

There is something very strange about that concurring opinion, both in the fact that it was done in the common denial of a motion for en banc consideration, and in its content.  A discussion would be too long here, so I may do so at a later time.

On this current subject of politics in appointing judges, a question is:  where was Republican Senator Rand Paul during the Kavanaugh confirmation process?  He was hiding out such that you could not find him using an infrared heat sensor in a FLIR device.  Paul had made a name for himself by doing a filibuster of sorts when the Obama adminstration refused to say that it would not assassinate a U.S. citizen within the borders of this country who had not been given the normal public trial and appeal process.  Paul's action forced Obama and Eric Holder to back down and issue a public statement retreating from their position.  Paul has spoken for civil liberties.  He generated publicity by urging that former CIA director John Brennan's security clearances be revoked.  But when the deals had been made and the votes for Kavanaugh had been gathered, Paul verified his vote to McConnell in  a statement–

"October 5, 2018, Washington, D.C. – Today, U.S. Senator Rand Paul (R-KY) released the following statement in support of Judge Brett Kavanaugh:  'Having looked at the totality of Brett Kavanaugh’s life and career, I am persuaded to vote for him today.  The preponderance of evidence from hundreds of people who knew him and worked with him indicates he is a good man with a good reputation for integrity and character.  Judge Kavanaugh is qualified, he has been vetted, and he should be confirmed'." [4]

Rand Paul wants to run for president again?  Hiding from known issues during the Bush jr administration when Kavanaugh was there may not be the way to build support.

I was an eyewitness in the 1980's to the extensive politics involved in appointing judges.  I was blessed to work with a lawyer for several years who was one of the best trial lawyers in Texas, almost exclusively in criminal law.  State judges in Texas are selected in partisan elections.  His wife was a judge on a Texas court of appeals, and she was the first female appellate judge in the State of Texas.  A vacancy occurred on the Texas Supreme Court and the governor would make an interim appointment until the next election.  An effort was made to get the lawyer's wife appointed to the supreme court, but it was unsuccessful.  She continued to get re-elected to the court of appeals until she retired.  The political maneuvering, letter writing, and phone calls involved, and tacky political tactics by others vying for the appointment, were astonishing.  That experience made me a believer in electing judges.

Yes, when judges are elected, the public usually knows little about them and can vote blindly, and when one political party gains prominence in an area, good judges can be, and are, swept out of office.  But nothing improves a judge's demeanor more than the approaching deadline to file for re-election and the prospect that an opponent may also file to enter the campaign. Often, especially for local judges, the good ones either do not get an opponent or win re-election. As you might expect, for judges elected statewide, the politics are more pervasive.

Federal district, circuit, and supreme court judges are appointed for life.  I have come to think that for federal judges there should be term limits, or a reappointment after a certain number of years, or a mandatory retirement age with a decent pension.  When a federal judge shows up who does not get black robe disease, who works hard, reads the papers that were filed, and allows participants to develop their cases, you can appreciate a long appointment.

However, what appears to be happening, especially with the federal courts of appeals and the U.S. Supreme Court, is that a type of feeder system has developed.  Certain law schools, especially the so-called "ivy league" schools, have professors with relationships with some federal judges, and some of their students seem to get jobs as law clerks with the judges.  Then, some federal judges have relationships with judges on the U.S. Supreme Court, and their clerks may have the inside track to becoming a law clerk on the U.S. Supreme Court, a brief job that is an even bigger future employment booster. 

Brett Kavanaugh is a product of this informal system.  He was a law clerk in 1990-91 for 3rd Circuit federal court of appeals Judge Walter Stapleton, and in 1991-92 for 9th Circuit Court of Appeals Judge Alex Kozinski, who introduced Kavanaugh to the U.S. Senate when his confirmation hearing for the D.C. Circuit Court of Appeals came up in 2006.  Kozinski had been a law clerk in 1975-76 for retiring Supreme Court Judge Anthony Kennedy when Kennedy was a judge on the federal 9th Circuit Court of Appeals.  The federal appeals court system is divided into 11 areas called "circuits", plus the D.C. and Federal circuits in Washington [5].  Ironically, Kozinski was finally forced to resign and retire in December 2017 for sexually oriented misconduct.  Part of this involved an e-mail list called the "Easy Rider Gag List" which included sexually explicit language.  When asked as part of his supreme court confirmation process whether he ever received an e-mail from Kozinsky's e-mail list, Kavanaugh responded:  "I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski."  Kozinski's fall is a separate and sordid story in itself.

After clerking for Judge Kozinski, Kavanaugh in 1993 was a law clerk for Judge Anthony Kennedy at the supreme court.  Kennedy had been appointed by president Reagan to the supreme court and took his seat in 1988.   As a federal appeals court judge on the D.C. Circuit, Kavanaugh was said to be one of about three federal judges who helped vet and screen supreme court law clerks for Judge Kennedy.  Kavanaugh was appointed to replace the retiring Judge Kennedy, and as of yesterday, has taken his place on the U.S. Supreme Court.

You can now understand how this works.

On the left in the photo above and chummy with Kavanaugh is Karl Rove, a political operator, practitioner of hard-nosed political tactics, and advisor to former president George W. Bush when he successfully ran for governor in Texas.  Rove then went to Washington when Bush jr became president in 2001 and worked in the White House.  He avidly promoted the 2003 invasion of Iraq.   Kavanaugh worked in the Bush jr White House for more than five years:  from July 2003 until May 2006, he was Assistant to the President and Staff Secretary to the President; from 2001 to 2003, he was Associate Counsel and then Senior Associate Counsel to the President [6].

Strange things we travelers see.




[3]  Federal Rule of Appellate Procedure 35–



[6]  Kavanaugh biography at the D.C. Circuit Court of Appeals–


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