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Retired Judge John Paul Stevens, prominent law professors, lawyers and lawmakers all raised this issue as senators prepared to vote on his candidacy on Saturday.
Stevens told a Florida audience that criticism that Mr. Kavanaugh "would have demonstrated potential bias involving enough potential plaintiffs in court" would have been well-founded "so that he would not be able to" 39, to discharge all his responsibilities ".
Kavanaugh, a 12-year veteran of Washington's influential US court of appeal, told the Senate Judiciary Committee last week that Christine Blasey Ford's sexual assault allegations stemmed from "no-one's". a calculated and orchestrated political coup, fueled by an apparent hidden anger ". President Trump and the 2016 election … are taking revenge on behalf of the Clintons and millions of dollars in money from leftist opposition groups. "
The former assistant to President George W. Bush, who also participated in President Bill Clinton's investigation, conducted by independent counsel, also said: "As we all know, in the United States political system of the early 2000s, the situation is restored. "
Even from the beginning, the appointment of Kavanaugh by President Donald Trump was incendiary. The atmosphere in the nation's capital and throughout the country is much more partisan than in previous decades, and Kavanaugh would succeed centrist conservative Justice Anthony Kennedy, who held the key vote on the nine-member bench for abortion rights and same-sex marriage, for only two of the many social policy issues controlled by Kennedy.
On Thursday night, Kavanaugh published an essay in The Wall Street Journal in which he acknowledged that he might have gone too far.
"I was very emotional last Thursday, more than I have ever been, I might have been too emotional sometimes.I know my tone was sharp and I said some things I should not have said, "he wrote.
The suspicions of impartiality are not new, but the nature of the accusations and Kavanaugh's angry partisan response place this episode in a separate category.
Other Supreme Court candidates – in recent decades, William Rehnquist and Clarence Thomas – have faced charges, questions of truthfulness and claimed that they would not be impartial jurists. Both were confirmed (Rehnquist as Associate Judge at the end of 1971 and as Chief Justice in 1986) and Thomas (as Associate Judge in 1991), but the controversy surrounding their nominations is gone but n & # 39, has never completely disappeared.
When do the judges recuse themselves?
The issues of judicial fairness arise in two ways: roughly, as to the jurist's temperament, as is the case in the current dispute, and specifically in the cases before the nine.
With regard to the latter aspect, federal law stipulates that any judge must recuse himself in any proceedings in which "his impartiality could reasonably be called into question". The Supreme Court is not covered by this mandate, as are the judges of the lower courts, but the different judges said they respected it.
Rarely, however, they recuse themselves from the cases. They usually withdraw if they have an obvious financial interest, for example with shares of a company sued, or if they have already dealt with the case as a business. lawyer or judge of a lower court. It is extremely rare that a judge decides not to participate on the basis of a substantive point of view on the issue.
New York University law professor Stephen Gillers, who specializes in legal ethics, said "the bar is very high" for motions that a jurist recuse himself. He said that case law requires specific evidence of bias for a given situation.
Gillers stated that it was unlikely that Kavanaugh, if confirmed, received numerous requests from litigants for recusation. Yet he said that this would not be the end of the question in the eyes of the public.
"The fact that he is not recused in politically sensitive cases does not mean that losers in these cases will not believe that he has been biased against them," said Gillers. There is a lot of discrepancy between the very high bar of challenge and what the public believes "prejudices and preconceptions of a judge.
More than 2,400 law professors from more than 190 schools submitted a letter to the Senate questioning Kavanaugh's judicial temperament, based on his testimony at the Senate's second round of hearings, in which Kavanaugh s & # 39; He is defended against allegations that he assaulted Ford Maryland. Even before that, lawyers have argued that Kavanaugh should withdraw in cases involving presidential power, based on Kavanaugh's earlier statements in the region.
Stevens, nominated by Republican Gerald Ford and serving from 1975 to 2010, drew a dividing line between Thomas and Kavanaugh's statements. "
Thomas, who also served on the DC circuit where Kavanaugh sits, was accused of sexual harassment by Anita Hill, with whom he had worked at the Ministry of Education and the Equal Opportunities Commission in the United States. l & # 39; employment. He was named to succeed the liberal legend Thurgood Marshall, the country's first African-American justice.
"It's a circus," said Thomas at a hearing before the Senate Judiciary Committee in 1991. "It's a national disgrace. And from my American Black point of view .. it is a high-tech lynching for the bourgeois blacks who deign anyway to think for themselves, to do for themselves, to have different ideas. "
After Thomas's confirmation, the lawyers did not regularly seek to evade a case. He has been widely regarded as a right-wing jurist who, even if bitter on the hill's claim, votes based on his ideology and not on the return on investment.
At Rehnquist's hearings in 1971, he was accused of numerous incidents of racial bias, including intimidating black voters during polls in the 1960s while he was a lawyer in Phoenix. Rehnquist denied the allegations.
Among the witnesses who testified against Rehnquist in 1986 on alleged polling activities in Arizona, was James Brosnahan, a former US Deputy Attorney who had investigated voter complaints.
Rehnquist was confirmed leader and later challenged after the Brosnahan trial.
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