Some on the left criticized Judge Brett Kavanaugh for daring to be angry as he defended himself against sexual misconduct allegations. They claimed that that indicated that he didn’t have the ‘temperament’ to be on the Supreme Court or couldn’t be impartial (after the Democrats attacked him). They claimed a justice has to be impartial and that indicated he couldn’t be. And now a sitting Supreme Court Justice is weighing in on the question.
On Friday, Supreme Court Justice Elena Kagan gave a talk at Princeton University and expressed concern about the ‘legitimacy’ of the Court going forward.
“Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way that people see the other governing structures of this country now,” Kagan explained. “In other words, people thinking of the Court as not politically divided in the same ways. It’s not an extension of politics, but instead somehow above the fray.”
Kagan believes it’s important for the Court to uphold that integrity, especially because we live in a deeply divided political climate.
“In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way. That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair,” Kagan said. “It’s not so clear going forward. That sort of middle position, you know, it’s not so clear whether we’ll have it.”
But here’s the problem.
Her very comment on the question, which anyone is going to interpret at being directed at Kavanaugh, is improper. That’s why Supreme Court Justices are never supposed to do this, inject themselves into the question or into politics.
This may be the first time a sitting justice has ever made a comment that could be interpreted as about or against a nominee.
And her comments show her own bias – that she wants to maintain what she believes is a more advantageous situation for Democrats. Who says there’s supposed to be a ‘swing vote?’ That is revealing her own political bias, something which she is supposedly speaking against.
This isn’t the first time the Justices viewed as liberal on the Court have had a problem of bias. Justice Ruth Bader Ginsburg also did something similar when she made anti-Trump comments during the 2016 election. She herself realized the impropriety and later apologized.
It isn’t that people don’t know how people lean. But the impropriety is is when they actually lay their politics out there publicly, especially when it could potentially influence the situation.
So will the Democrats who questioned Kavanaugh’s impartiality because he dared defend himself from their attacks call out Kagan for her comments?