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Kavanaugh As A Justice

MICHEL MARTIN, HOST:

While the hearing this week was meant to investigate Judge Kavanaugh's conduct in high school, it also opened the door to other questions about his impartiality on the bench and his potential impact on the image of the court. That's because he was combative with Democratic senators and made this starkly partisan statement.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: 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 that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

MARTIN: While this comment might not seem startling from someone who helped investigate Bill Clinton and later worked in the Bush White House as Kavanaugh did, the partisan tone was seen as a departure for a federal judge, which Mr. Kavanaugh is now. We wanted to talk more about this, so we called David A. Kaplan once again. He's author of the recent book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution."

Welcome back, Mr. Kaplan. Thanks so much for joining us once again.

DAVID A. KAPLAN: Good to be with you again.

MARTIN: Well, I don't think it was a surprise to anybody that Judge Kavanaugh was angry and emotional, but his comments were very partisan, and he made statements that weren't supported by any facts that - at least, that he was able to cite. So what did you make of that?

KAPLAN: I understood that he believed in order to keep his nomination live, he had one key person to please, and that was the president of the United States. So, in that sense, he did what he had to do. But, that said, some of his comments were so over-the-top. The comment about the Clintons, while no doubt a result of 20 years of simmering rage over how Kavanaugh thinks he was mistreated in perception of him writing the Starr Report, there's something to be said for appearing to have judicial temperament even in a political setting like your confirmation hearing.

MARTIN: A law professor at Yale, Judith Resnik, told The New York Times that because of his tone this week, his ascent to the court could leave it under a cloud of politics and scandal for decades. I mean, she was not the only person expressing that perspective, so I wanted to ask, you know, first about what it is exactly that you think harmed him and, secondly, do you think that his comments could damage the reputation of the court in some way?

KAPLAN: I don't think it particularly damages the reputation of the court. I think this whole circus damages the reputation of the court. It makes it look politicized. But, as I've argued in the book, I think the court's politicization responsibility lies first with the court itself because it gets involved in so many political and social issues. But the court can do its job, and this will be forgotten, at least in the sense that the Clarence Thomas-Anita Hill battle from 30 years ago didn't significantly interfere with the court's ability, the court's prestige and credibility. And whatever else one may think of Justice Thomas, when I interviewed a majority of the justices for this book and asked about Anita Hill, I didn't get the sense for any of them that there was damage that was front and center on their minds.

MARTIN: Since Judge Kavanaugh revealed his partisan allegiances so openly, do you expect him to be under pressure to recuse himself from many matters if he is confirmed - matters involving campaign finance or matters where the parties have opposing points of view?

KAPLAN: Yes. I think he is more likely to be the subject of recusal motions and pressure. But the unique thing about recusal before the Supreme Court is that you can't substitute in somebody else. And the tradition of the court has been to let each justice to decide. So while I think that pressure might exist, my hunch would be that Kavanaugh, like other justices, will be loathe to step outside of cases based so far just on the notion that he's now so biased that he can't sit.

MARTIN: This particular outburst aside, what has been his record on the time he's been on the bench? Do you think that he's displayed excessive partisanship?

KAPLAN: No. I think you can judge him guilty, if you will, of being conservative. But the idea that he has an ideological axe to grind on campaign finance, executive power - I think it's pretty hard to take a whole lot away from that. By and large, Kavanaugh's reputation within the profession and within the academy is as being a first-rate judge.

MARTIN: That's David A. Kaplan, former legal affairs editor at Newsweek. His book, "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution," came out earlier this year.

Mr. Kaplan, thanks so much for joining us once again.

KAPLAN: Thank you. A pleasure to join you again. Transcript provided by NPR, Copyright NPR.