Bernard Rabik – 10/5/18


This page was last updated on October 30, 2018.

Ask Attorney Bernie: Non-judicial temperament vs. righteous indignation; Bernard Rabik (BR); Beaver County Times; October 5, 2018.

According to the BCT, “Bernie Rabik of Hopewell Township is an attorney and former Beaver County solicitor.  He writes a column on legal matters for The Times.”  In reality, BR appears to be just another lefty pundit.  For example, “Does the truth matter anymore?” (11/17/2017) was no more than an anti-Trump rant.

In his inaugural piece of 7/1/2016, BR wrote, “Note that none of the answers to your questions will be editorials expressing the opinions of The Times through its editorial writers.”  While BR’s articles may or may not “be editorials expressing the opinions of The Times,” they are loaded with his Democrat/leftist politics.  Could BR be J.D. Prose v2.0? <g>

Reviews of previous BR pieces are here, here, and here.

Below is a review of the subject column.

Question: Does Judge Kavanaugh have the temperament to be a Justice Kavanaugh to sit on the highest court of the land?  What is meant by ‘judicial temperament?’”

[RWC] I can’t be sure, but I suspect this question was BR’s, not that of a reader.

Answer: Judicial temperament was one topic discussed by members of the judiciary committee, the media and others following a Sept. 27 committee hearing with Dr. Christine Blasey Ford and Judge Brett Kavanaugh.”

[RWC] The only time BR mentioned the allegations of Christine Blasey Ford (CBF) was when he wrote, “the charges of sexual misconduct lodged against him [Judge Brett Kavanaugh (BK)] that were decades old and surfaced just as he was about to ascend to the high court.”

There’s a reason BR glossed over CBF’s allegation of “sexual misconduct.”  CBF alleged BK attempted to rape her and was afraid BK might “inadvertently kill [her].”  That’s a tad more serious than “sexual misconduct.”  Further, BR didn’t mention CBF could not provide any facts that could corroborate her story.  For example, CBF said she didn’t know how she got to the alleged party or how she got home after she escaped the alleged attack.  CBF couldn’t describe the house of the alleged party or narrow down its location.  None of the persons CBF said could corroborate her story remembered the party at all, including life-long friend Leland Ingham Keyser (LIK).

During the hearing, staff counsel Rachel Mitchell asked CBF, “OK.  And when you – when you did leave that night, did Leland Keyser – now Keyser ever follow up with you and say hey, what happened to you? … I’m talking about like the next day.”  CBF responded, “Oh no, she didn’t know about the event.  She was downstairs during the event and I did not share it with her.”  Even if LIK didn’t know about “the event,” isn’t it likely LIK would have asked CBF why she ducked out of the party without telling LIK?  Further, LIK said she didn’t/doesn’t even know BK.

The smear of BK didn’t stop with CBF.  The nuts came out and started making ridiculous accusations.  For example, one woman claimed BK and friends ran gang-rape parties.  BK coaches some of his daughters’ basketball teams.  Between a sports writer’s column and an editorial, USA Today implied BK might be a child molester.  Describing its fix, USA Today wrote, “In the author’s opinion, he thought it best to wait for the investigations to be concluded before Kavanaugh resumed his role, should he get the green light.  The writer said he never intended to malign Kavanaugh.  But the way a sentence was written could be read to imply that the judge needed to stay away from children.”

Can you imagine having to talk to your 10- and 13-year-old daughters about gang-rape and why someone thinks you would harm them and their friends?  Imagine what it would be like if you were one of those daughters hearing the vile accusations made of your dad.  Imagine what it was like for his daughters going to school knowing their classmates have heard the allegations.

Keep this in mind as you read the remainder of this column.

Non-judicial temperament

“Judge Brett Kavanaugh was angry, and he sobbed.  He was combative, even rude.  He answered a question with a question, talked over senators.  He claimed his life was forever altered and blamed a conspiracy of left-wing interest groups, Clinton family allies and unnamed Democratic politicians.”

[RWC] The chutzpah is amazing.  You make the most vile accusations of BK then complain about temperament when he doesn’t just sit there and take it.

“Cavanaugh testified, ‘This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election ...  Fear has been unfairly stoked about my judicial records.  Revenge on behalf of the Clintons.’

“Kavanaugh was not simply angry.  Many said he became unhinged, that his behavior revealed that he is capable of unrestrained wrath, a vengeful spirit and a disqualifying inability to keep disagreement within acceptable bounds.

“Republican strategist Rich Galen wrote, ‘Judge Kavanaugh did not sound like, look like, or act like a Justice of the Supreme Court.’

Righteous indignation

“Others saw how the 53-year-old Kavanaugh comported himself was more than understandable given the charges of sexual misconduct lodged against him that were decades old and surfaced just as he was about to ascend to the high court.  In this deeply partisan era, nearly everyone on all sides seemed to agree: the presentation was extraordinary.

Appellate judge for 12 years

An appellate judge is what Kavanaugh has been for the past 12 years with a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the second most powerful court in the country.  That’s one reason his aggressive testimony has attracted fire.  Judges are supposed to be above the fray, cool-headed and even-tempered.

“Others have a different view.  They agree that judges have to be even-keeled.  But Kavanaugh was in a unique setting.  Although a judge on the bench must keep his or her emotions out of the proceedings regardless of provocations, this was not a judicial proceeding; and, he was not presiding.  He was facing extreme accusations in a political setting.

Code of Conduct for U.S. Judges

“The Code of Conduct for U.S. Judges includes the ethical canons that apply to federal judges and provides guidance on their performance of ethical duties and engagement in a variety of outside activities.

“According to retired Judge Andre M. Davis of the Virginia 4th Circuit Court of Appeals, the first two canons require federal judges to uphold the integrity and independence of the judiciary and avoid impropriety and appearance of impropriety ‘in all activities.’

“Rule 1.2 states in full: ‘A judge shall act at all times (emphasis added) in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.’

“The Comment on Rule 1.2 explains: Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety.  The principle applies to both the professional and personal conduct of a judge.

Temperament to be a justice

“Kavanaugh’s testimony has raised this question, ‘Does Judge Kavanaugh have the temperament to be Justice Kavanaugh?’

“Professor Jeffrey Rosen, one of the most important scholars of the Supreme Court says, ‘The most important predictors of success on the Supreme Court are not academic brilliance, philosophical consistency or methodological ambition.  Instead, many of the most successful Supreme Court Justices are those who get along well with their colleagues, are able to compromise and can set aside their own ideological agendas in the interest of preserving the institutional legitimacy of the Court.’

“Court scholars refer to this ability to find common ground - to persuade through collegial argument, not polemic - as ‘judicial temperament.’

“In sum, judicial temperament describes a judge’s general attitude toward the law, litigants and other judges.  According to the American Bar Association, judicial temperament means that a judge exhibits ‘compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.’”

[RWC] As BR noted, “An appellate judge is what Kavanaugh has been for the past 12 years with a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the second most powerful court in the country.”  That’s quite a body of work.  If “judicial temperament” were an issue, why was it not mentioned before?

Your answer

“Do you agree or disagree with those who opine that the man who testified Sept. 27 sounded not like a Supreme Court Justice, but rather like yet another Republican member on the Senate Judiciary Committee engaging in not only verbal combat with Democratic senators, but also, quite remarkably, seeming to threaten potential retribution: ‘And as we all know,’ Kavanaugh said, ‘In the United States political system of the early 2000s, what goes around comes around.’”

[RWC] BK engaged “in not only verbal combat with Democratic senators, but also, quite remarkably, seeming to threaten potential retribution?”  Here’s one example of how Democrat senators treated BK:

Except for a few seconds at the beginning, Sen. Dick Durbin (D-IL) spent his entire five minutes badgering BK to call for yet another FBI background check, this time focused on CBF’s accusations.  BK responded, “I - I welcome whatever the committee wants to do, because I’m telling the truth.”  This isn’t something new; BK’s been saying this ever since he learned of CBF’s accusations.

That wasn’t good enough for DD, however.  DD wanted BK on record specifically asking for an FBI investigation.  My guess is DD was trying to set a precedent.  For example, the wacko allegations continued.  Even before the first supplemental FBI check returned “clean,” DD and his pals were already calling for the supplemental FBI check to be extended.  Had BK not supported extensions, DD would have said, “why not; you supported the previous supplemental FBI checks, didn’t you?  Do you have something to hide?”  The goal was to delay BK’s confirmation beyond the upcoming election in the hope Democrats become the majority in the Senate.

DD said, “And you can’t have it both ways, Judge. You can’t say here at the beginning … If there is no truth to her charges, the FBI investigation will show that.  Are you afraid that they might not?”  That is, BK couldn’t plead his innocence unless he demanded yet another FBI background check.

 BR says BK seemed to threaten potential retribution.  BK said,

“This is a circus.  The consequences will extend long past my nomination.  The consequences will be with us for decades.  This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

“And as we all know, in the United States political system of the early 2000s, what goes around comes around.  I am an optimistic guy.  I always try to be on the sunrise side of the mountain, to be optimistic about the day that is coming.”

I think BK was describing what was done to him, not what he would do.

Depending on your age and/or memory, you may not know this isn’t the first time Democrats came up with a last-minute, sex-related smear.

In 1991, President George H.W. Bush nominated a young (42 years old), successful black man to the highest court in the U.S.  Judge Clarence Thomas (CT) was on the Court of Appeals for the District of Columbia Circuit at the time, just like BK.  After CT cleared the hearing process, an accusation of sexual harassment miraculously surfaced. 

Democrats turned the confirmation process into what CT described as “a circus.  It’s a national disgrace.  And from my standpoint, as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kow-tow to an old order, this is what will happen to you.  You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

“Can we afford the risk of giving someone the authority of a Supreme Court Justice to change American life when he may not have the self-restraint to control his own temper?

“Was Kavanaugh’s Sept. 27 testimony before the Senate Judiciary Committee either non-judicial temperament or righteous indignation?”

[RWC] I think BR inadvertently answered the question himself when he wrote, “An appellate judge is what Kavanaugh has been for the past 12 years with a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the second most powerful court in the country.”

© 2004-2018 Robert W. Cox, all rights reserved.