Despite a special hearing and FBI investigation of sexual misconduct allegations made against SCOTUS Nominee Judge Brett Kavanaugh, Senate Republicans and President Trump are increasingly optimistic that Kavanaugh will be confirmed. In protest, more than 1700 law professors signed a letter to the Senate expressing their concerns over Kavanaugh’s nomination. We are joined by ASU Law Professor Paul Bender, who was among those who signed the letter.
TED: GOOD EVENING, AND WELCOME TO "ARIZONA HORIZON." I'M TED SIMON. SENATE REPUBLICANS AND PRESIDENT TRUMP ARE INCREASINGLY OPTIMPISITC THAT BRETT KAVANAUGH WILL BE CONFIRMED TO THE U.S. SUPREME COURT. THIS DESPITE PROTESTS CAPITOL HILL AND AROUND THE COUNTRY AND SOME REMARKS FROM RETIRED SUPREME COURT JUSTICE JOHN PAUL STEVENS WHO TOLD A GROUP OF RETIREES IN FLORIDA TODAY THAT KAVANAUGH DOESN'T BELONG ON THE COURT. STEVENS, A LIVE LONG REPUBLICAN INITIALLY SAID HE SUPPORTED KAVANAUGH, BUT ADDED I'VE CHANGED MY VIEWS, AND HIS PERFORMANCE IN THE HEARINGS CHANGED MY MIND. MORE THAN 2,000 LAW PROFESSORS SIGNED A LETTER TO THE SENATE EXPRESSING SIMILAR CONCERNS. AMONG THOSE SIGNING THE LETTER, ASU PROFESSOR PAUL BENDER, WHO JOINS US NOW. YOU SIGNED THIS LETTER REGARDING JUDICIAL TEMPERAMENT. WHAT'S JUDICIAL TEMPERAMENT?
PAUL BENDER: IF YOU WANT TO PUT IT SIMPLY IT’S LIKE ACTING LIKE A JUDGE, BUT WHAT DOES THAT MEAN. IT MEANS, YOU ACT FAIR, YOU DON'T LOSE YOUR TEMPER, YOU SEEM TO HEAR OR WANT TO HEAR FROM BOTH SIDES BEFORE MAKING UP YOUR MIND, AND YOU'RE CAREFUL ABOUT WHAT YOU SAY AND YOU'RE CAREFUL ABOUT WHAT YOU DO. YOU TAKE YOUR TIME IN DOING THINGS TO MAKE SURE YOU'RE GETTING IT RIGHT, THOSE KIND OF THINGS. IT'S A VERY CONSERVATIVE TRAIT.
TED: AND THE LETTER SAYS JUDGE KAVANAUGH DISPLAYED A LACK OF JUDICIAL TEMPERAMENT, SO MUCH SO THAT HE WOULD BE DISQUALIFIED FOR ANY COURT.
PAUL BENDER: YEAH. TO ME, HE DID DO THAT, AND I THINK HE DID THAT, AND HE LOST HIS TEMPER, AND HE WAS NASTY TO PEOPLE, AND HE OVER WROTE QUESTIONS. YOU DON'T WANT TO JUDGE DOING THAT ON THE BENCH. JUST THINK IF YOU WENT TO THE SUPREME COURT TO WATCH AN ARGUMENT, AND ONE OF THE JUDGES DID THAT TO ANOTHER JUDGE OR ACTING NASTY TO THE COUNSEL THAT WOULD NOT BE THE RIGHT TEMPERMENT. BUT TO ME, IT'S NOT SO MUCH THE TEMPERAMENT, IT'S THE PARTISANSHIP. IT'S HIM SAYING I'M ANGRY, AND I'VE GOT A LOT OF ENEMIES OUT THERE, THEY ARE OUT TO GET ME AND WHEN I GET ON THE BENCH, WHAT COMES AROUND, GOES AROUND. YOU DON'T WANT SOMEBODY ON THE BENCH WHO'S TELLING YOU HE'S GOING TO GET BACK AT HIS ENEMIES, ESPECIALLY WHEN YOU'VE GOT A JUDGE THAT'S GOING TO BE A LOT OF ENEMIES IN FRONT OF HIM.
TED: HIS RESPONSE WAS TEMPERAMENTAL, INFLAMMATORY, IMPARTIAL. WOULD YOU BE ABLE TO SORT OUT THE KINDS OF ALLEGATIONS WITH REASON AND CARE?
PAUL BENDER: I HOPE SO. I MIGHT NOT BE, BUT I HOPE I WOULDN'T EXPLODE THE WAY HE DID. AND AS I HOPE I WOULDN'T SAY THAT EVERYBODY THAT'S OPPOSED TO ME IS PART OF A BIG CONSPIRACY TO KEEP ME OFF THE BENCH. THEY'RE MY ENEMIES AND I'LL GET BACK AT THEM. THAT TO ME IS THE THING THAT MOST DISQUALIFIES HIM FOR THIS. IF HIS JUDICIAL RECORD, I DON'T AGREE WITH HIM IN MOST CASES, BUT THERE'S NOTHING IN HIS JUDICIAL RECORD THAT WOULD DISQUALIFY HIM.
TED: THE LETTER SAID THAT HE DISPLAYED A LACK OF JUDICIOUS INQUIRY. WHAT DOES THAT MEAN?
PAUL BENDER: THAT IM NOT QUITE SURE HOW THEY COULD TELL THAT FROM HIS PERFORMANCE AT THE HEARING. IT WASN’T SO MUCH A LACK OF INQUIRY, IT WAS A LACK OF FEELING FOR OTHER PEOPLE'S FEELINGS, A LACK OF EMPATHY. YOU WANT A JUDGE WHO CARES ABOUT OTHER PEOPLE. HE SEEMED TO CARE ABOUT NOTHING BUT HIMSELF. I MEAN HERE'S A WOMAN WHO'S SAYING SHE WENT THROUGH A TERRIBLE TIME, AND WHAT HE CARES ABOUT IS THE TERRIBLE TIME HE'S GOING THROUGH. HIS FAMILY'S BEING DESTROYED. WHAT ABOUT HER FAMILY? THAT'S SOMETHING THAT I THINK IS CONNECTED WITH A LACK OF JUDICIAL TEMPERAMENT, NOT SEEING THINGS EVENLY.
TED: LIKE TODAY HE CAME OUT AND SAID HE RESPONDED AS A FATHER AND A SON AND A HUSBAND.
PAUL BENDER: RIGHT. WELL, SHE RESPONDED AS A MOTHER.
TED: BUT I THINK PEOPLE DON'T UNDERSTAND THAT'S WHY THE EMOTION WAS THERE.
PAUL BENDER: WELL, BUT I DON'T THINK -- IT EXPLAINS THE EMOTION, BUT I DON'T THINK IT EXPLAINS THE PARTISANSHIP. THAT'S THE ONE THING.
TED: OKAY, WITH THAT PARTISANSHIP THERE, AND IT LOOKS LIKE HE WILL BE CONFIRMED. IT'S KIND OF HARD TO TELL, BUT IT LOOKS LIKE IT'S GOING IN THAT DIRECTION. WHAT DOES THAT MEAN WHEN HE HEARS A CASE INVOLVING DEMOCRATS, HILLARY CLINTON, ANYONE THAT HE HAD MENTIONED OR "OUT TO GET HIM"? WHAT HAPPENS?
PAUL BENDER: WHAT'S THAT I WAS SAYING BEFORE. ONE, HE COULD RECUSE HIMSELF. I DOUBT HE WOULD. AND IT WOULD MEAN A LOT TO THE COURT IF IT'S A CLOSE DIVIDED CASE BECAUSE THEN IT WOULD BE FOUR TO FOUR IF IT WAS A CASE THAT CONSERVATIVES WON IT WOULD HAVE BEEN FIVE TO FOUR AND THE LOWER COURT DECISION GET’S AFFIRMED, AND SO THAT COULD REALLY BE HARMFUL. IN SOME WAYS, YOU COULD SAY TO THE PRESIDENT HEY, IF YOU REALLY WANT TO TURN THE COURT INTO A CONSERVATIVE COURT, THIS IS NOT YOUR PERSON BECAUSE FOR YEARS HE MAY HAVE TO DISQUALIFY HIMSELF IN CASES AND THEN YOU'VE LOST YOUR FIFTH REPUBLICAN VOTE.
TED: WOULD HE HAVE TO DISQUALIFY HIMSELF OR WOULD HE JUST CHOOSE.
PAUL BENDER: SUPREME COURT JUSTICES LIKE IN MANY THINGS ARE DIFFERENT FROM ANYBODY ELSE. ALL FEDERAL JUDGES ARE BOUND BY A CODE OF CONDUCT AND IT SAYS WHEN THEY HAVE TO DISQUALIFY THEMSELVES, AND THERE ARE DIFFERENT CRITERIA. SUPREME COURT JUSTICES ARE NOT BOUND BY THEM. IT'S ENTIRELY UP TO THEM WHAT TO DO. YOU REMEMBER WHEN JOSEPH SCALIA WAS UP FOR THAT, AND HE WAS ATTENDING A PARTY VICE PRESIDNET CHAINY, AND HE JUST SPENT A WEEKEND PARTYING WITH HIM OR SOMETHING LIKE THAT AND HE SAYS IM NOT GOING TO DO IT BECAUSE I KNOW IM FAIR MINDED, AND SO IM NOT GOING TO DO THAT. A LOWER COURT JUDGE WOULD NOT BE ABLE TO DO THAT.
TED: IF HE IS CONFIRMED, THE IMPACT ON THE COURT ITSLEF, COULD HE POSSIBLY VEER THE OTHER WAY AND BECOME A CANDIDATE JUST TO PROVE THAT HE'S A -- AN EVEN TEMPERED GUY?
PAUL BENDER: ANYTHING'S POSSIBLE, BUT IT'S UNLIKELY. IF HE DOESN'T VEER THE OTHER WAY, THE EFFECT ON THE COURT IS TO TURN IT FROM A COURT WITH FOUR CONSERVATIVES, FOUR MODERATE LIBERALS AND A KENNEDY WHO SWITCHES BACK AND FORTH ALTHOUGH RECENTLY, UP UNTIL LAST YEAR, HE JOINED WITH THE LIBERALS MORE THAN CONSERVATIVES, IT TURNS INTO A COURT WITH FIVE ROCK SOLID CONSERVATIVES AND FOUR LIBERALS. WHO ARE THEY GOING TO PICK OUT NOW TO DO THAT? THERE'S A WHOLE LOT OF STUFF THAT MIGHT BE DONE DIFFERENTLY. I DON'T THINK IT'S SO MUCH WHAT WILL BE OVERRULED. PEOPLE ARE TALKING ABOUT OVERRULING ROWV. WADE. I DON'T THINK -- ROE V. WADE. I DON'T THINK WE'LL DO THAT, BUT THEY'LL MOVE THE TIME OF VIABILITY FORWARD AND THEY'LL SAY THAT'S OKAY. THEY WON'T OVERTURN GAY MARRIAGE. I CAN'T IMAGINE THEY'LL DO THAT, BUT THEY'LL IMAGINE SITUATIONS THAT THE STATE IS NOT TREATING GAY MARRIED PEOPLE THE WAY THEY DO EVERYBODY ELSE. THE COURT HAS BEEN EATING AWAY AT THE DEATH PENALTY. THE COURT HAS BEEN EATING AWAY AT THE DEATH PENALITY KENNEDY HAS BEEN THE LEADER OF THAT. THAT’S GONE, AND THE COURT ACTUALLY HAS TWO DEATH PENALITY CASES BEFORE THIS TERM AND THAT MAY BE THE FIRST HINT YOU’LL GET ABOUT WHAT EFFECT HE'LL GET, IF HE'S CONFIRMED, SEE HOW HE IS IN THOSE TWO DEATH PENALTY CASES.
TED: PAUL BENDER, ASU LAW PROFESSOR SIGNED THAT LETTER. GOOD TO HAVE YOU HERE, THANKS FOR JOING US.
PAUL BENDER: NICE TO SEE YOU, TED.
ASU Law Professor Paul Bender
