Thread by @BJS_quire

THREAD: #Kavanaugh was an objectively-terrible witness. He was obtuse. He was evasive. He lost his cool. He, at best, was extremely loose with verifiable truths.

How could he be SOOOO BAD, right?

I'll tell you how he could be so bad. Because "Judge Kavanaugh"...

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... is not, and has never been, the type of "Judge" most think of and, frankly, the same is true of him as an attorney.

Yeah, he has a Bar card. Yeah, he wears a black robe.

But here is a question that no Senator asked but I wish one had...

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"Judge, how many TRIALS have you participated in as a judge, attorney, or law clerk?"

Would you believe me that the answer is likely way lower than his age at the time when Dr. Ford alleges he assaulted her?

Well... it definitely is. Lemme explain.

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Brett Kavanaugh graduated from Yale Law School (you might've heard, it's THE BEST law school 🙄).

From there he went directly to a clerkship with Judge Walter King Stapleton on the U.S. Court of Appeals for the Third Circuit.

Before going further, a critical note.

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United States Courts of Appeal are NOT trial courts.

They do not hear from witnesses.

They do not receive evidence.

They hear argument from lawyers and base their rulings on those arguments and the record of the underlying trial.

That's it.

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To be certain, this is not to in any way diminish being a clerk on a Federal Court of Appeals. It's pretty badass and highly coveted.

But it is not a "court" like you've seen on every show from Perry Mason to L.A. Law to Damages.

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Anyway, back to Brett and his terrible, awful day as a witness.

So, he's clerking at the 3d Circuit. Now, clerks have incomparable access & influence. Many judges hire based on from whom they would want that input. They often are very involved with decision drafting, too.

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With that in mind, some may know that during his tenure with Judge Stapleton, his Judge "wrote" the majority opinion in Planned Parenthood v. Casey. If that sounds familiar, it's the one where Pennsylvania's abortion laws were upheld.

In any event, NO TRIALS at that job.

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From the 3d Circuit, Judge Stapleton recommended him to another Judge you may have heard of...

Judge Alex Kozinski at the 9th Circuit.

I won't belabor that whole thing here, but if you didn't know, Kozinski was removed from the bench for... improper sexual conduct.

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But that's not the point here. The point remains, CIRCUIT COURTS OF APPEAL ARE NOT TRIAL COURTS.

So, first 2 jobs. No trials. no witnesses. No evidentiary role.

After not being offered a clerkship with Justice Rehnquist, Brett got a 1 year internship with... Ken Starr.

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Starr was Solicitor General at the time. On theme, Solicitors General do not participate in trials. They participate in appeals, often in the Supreme Court.

Why a 1 year internship, you ask?

Because 1 year later, that's where Brett headed... as a clerk to Justice Kennedy.

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Now, everyone should know, but many may not, that the United States Supreme Court does not conduct trials. It does not hear from witnesses. It does not receive evidence.

And that's where Brett stayed for 2 years until he went back to work for... Ken Starr from '94-'97.

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This time, Starr wasn't Solicitor General anymore. Ya'll know what he was doing. He rad Special Counsel investigating Bill Clinton. Brett was an Associate Counsel.

In that role, he was little more than in his 3rd clerking position and now...

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... here we are, 7 yrs since getting his J.D. & Bar card & for those keeping score...

Zero trials.

As would be expected, he next went to the white collar firm of Kirkland & Ellis. He seemed to like his Torquemada position more, and about a year later was back with Starr.

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This time, Brett argued his SINGLE case before the Supreme Court in which he asked the Court to set aside attorney-client privilege in his Gestapo investigation surrounding Vince Foster's death (look it up, millennials).

He lost.

But back to the point... NOT A TRIAL.

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He went back to Kirkland & Ellis after being a main drafter of the Starr Report.

And here's where we MAY have what could MAYBE be referred to as Brett's first trial work.

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He was counsel for the relatives of Elián González. Those relatives wanted to keep the 6 year old from his father because his father lived in Castro-era Cuba.

This case worked its way through trial courts but there's not much record of Brett's role.

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But for arguments sake, let's give Brett trial credit for the Elián González case. Surely there were witnesses and evidence in the proceedings before it got to the Supreme Court.

So that's 1 "trial."

Oh, his clients lost, btw.

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During the rest of his tenure at Kirkland & Ellis, but all accounts Brett occupied his billable hours writing amicus briefs. These are non-party legal papers submitted in support of a litigant.

It goes without saying, as non-parties, they are not in the trials.

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So now we're towards the end of 2000 and Bush v. Gore is front and center. At this point, he goes to work for Bush in those efforts.

Hey, Brett's client won one!

But in any event, NO TRIALS.

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Once Bush took office, Brett went with his as an Associate White House Counsel to Alberto Gonzales. But after a couple years, Dubya took him in closer as Assistant to the President.

Needless to say, in these times... NO TRIALS.

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In 2003, Dubya nominated Brett to the D.C. Circuit. Many thought that a 13-year barred attorney who's never really held a job as an attorney outside the political realm wasn't a good fit as a judge on what many believe is the second highest court in the land.

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So Brett's confirmation was stalled until 2006, when he was eventually confirmed to the position as an appellate court judge that he still holds today.

I know it was a while back, but remember when I mentioned that appeals courts are not trial courts?

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Quick side note, the vast majority of Circuit Court judges were first trial judges at a state-court level or at a District Court.

Brett wasn't.

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That's the career.

All of it.

So, to the original question of "how could such an experienced Judge be such a bad witness?"...

It's because "experience" is not universal for attorneys.

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Most don't go the path of Brett. Most see witnesses. Most see trials. From those observations, MOST would have known that the manner in which he gave his testimony was an embarrassment.

It was amateur.
It was theater.

It was not that of a seasoned attorney.

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Why does this matter? I'll tell you why.

Because someone who will sit on the highest court in the land for the rest of their life SHOULD possess even this base-level knowledge.

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So whether or not he's guilty of assault, or whether or not he lied multiple times in his testimony, to me, his performance expressed an independent reason to oppose his nomination.

He entire career prepared him, not to evaluate facts, witnesses, or evidence...

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... but to sit in judgment, from a place on high, based on what he personally feels is right, or thinks is "fair."

He's entitled.

He's had a career of entitlement.

That's not the model for a Justice of the Supreme Court of the United States.

POST-SCRIPT...

A few replies pointing out trial experience of other sitting Justices, or lack thereof.

How'd those other justices do when they testified?

The thread is not "Why Brett Would Be a _______ Justice" but rather just thoughts on "Why Brett Was A God-Awful Witness."