The emperor of ice cream

Afederal judge once told me his job was “like getting paid to eat ice cream.” If anybody wants to appoint me to the federal bench, I’m cool with it.

As a federal judge you get to hear interesting cases. You listen to people argue the facts and the law and then you get to decide what to do about it. You have a lot of power. And you’ll have a clerk or two to help you come to those decisions and do your paperwork. You have a lot of young lawyers eager to be your clerk.

You can decide how hard you want to work at eating that ice cream, you can let those eager young law clerks eat a lot of it if you want. Or you can hog it for yourself, and put them to work washing your spoons. (Which they’ll be happy to do, though they might write snarky things about you in their memoirs.)

Even better than that, you’ll practically get lifetime tenure. You are bullet-proof, impervious to a fickle electorate, a hostile legislature or an intemperate president. You cannot be removed from office except by impeachment by the House of Representatives followed by conviction by the Senate. (William Rehnquist and a few others have suggested that’s not exactly true, but their theory has never been tested).

It’s a good idea to give judges lifetime tenure. I agree with Alexander Hamilton, who wrote in Federalist No. 78, an essay about the structure and role of the judiciary that’s considered a foundation text of constitutional interpretation, that an immovable judiciary insulated from public opinion and partisan politics can in a monarchy be “an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body.”

One of the reasons Hamilton thought this was a good idea is because the judiciary is the weakest branch of our government as it doesn’t have control of the military (the executive branch does) or the budget (Congress). So in order to remain independent, judges needed to be protected from the other branches.

And while there are arguments against this, lifetime appointments for judges who exhibit good behavior seem reasonable enough.

At least it’s a way better system than getting judges directly involved in the political process by having them run for office. That would be dumb.

Anyway, you become a federal judge and you’re harder to fire than a president. Because a president has to run for re-election and the 22nd Amendment limits them to two elected terms.

And you can’t have your salary cut either. Not until after you’re impeached and convicted. Which has only happened eight times in our history.

So you sit up on the bench, collect your $200K per annum (which isn’t all that much, but you get regular raises and some opportunity to supplement it by teaching and speaking engagements, and your investment income isn’t limited), don’t take bribes or commit other crimes, and eat your ice cream.

Nobody is suggesting we ought to take away Brett Kavanaugh’s ice cream.

But I wonder if he ought to get a promotion. I wonder if we ought to give him more ice cream, more law clerks and more power.

He’s not entitled to be a Supreme Court justice. No one is.

And even if his accuser is making her story up—which seems unlikely given that she is apparently a serious person with a professional reputation who came forward publicly only after it seemed inevitable that she was going to be outed and who has signaled her willingness to testify if the FBI investigates her allegations (not a small point; usually people who are making up stories would prefer the FBI not investigate those stories)—Brett Kavanaugh is no more entitled to be a Supreme Court justice than he is to win the lottery.

Maybe he’s qualified—but he’s not entitled. No more than Merrick Garland was.

I don’t imagine anyone believes we’re ever going to know the whole truth about what Kavanaugh did or didn’t do when he was in prep school. I’m not going to change your mind. Kavanaugh told me all I needed to know about his character when he publicly and unmistakably snubbed Fred Guttenberg, the father of Jaime Guttenberg, who was one of the 17 people killed during the shooting at Marjory Stoneman Douglas High School on Valentine’s Day. I saw that with my own eyes. I’ve had people try to tell me it was something different than what I saw, but that’s the world we live in today.

You want ice cream, you treat people decently. Even (especially) if you don’t agree with them or respect them. You can’t pretend to be a good guy; you don’t get the benefit of the doubt.

When he was nominated, I said Kavanaugh was probably as good a nominee as we could expect from this administration, which was never going to offer up someone who wasn’t divisive and saddled with a lot of political baggage. I figured they might as well go ahead and confirm him, because you never know about these things and sometimes people get on the Supreme Court and surprise you by rising above the pettiness and actually do the right thing. I know getting back to what John McCain called “regular order” is probably impossible now that politics is run as entertainment product, but hey, if you can’t be idealistic about the Supreme Court, what can you be idealistic about?

But obviously there are a lot of things about Kavanaugh his sponsors don’t want us to know. And a lot of things about Kavanaugh that Kavanaugh doesn’t want us to know. We can only go by what he tells us.

I’d feel better about him if he did the right thing and pulled his name from consideration. If he admitted that he doesn’t want to become the next Clarence Thomas and spend the next 30 years of his life as an antagonistic reminder that women had better be afraid of powerful men.

If he just went back to eating his ice cream. pmartin@arkansasonline.com

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