STEVE INSKEEP, HOST:
Supreme Court nominee Brett Kavanaugh faces questions not only over accusations about his past, but about the way he has defended himself.
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BRETT KAVANAUGH: This whole two-week effort has been a calculated and orchestrated political hit.
INSKEEP: In sworn testimony, Kavanaugh spun out a conspiracy theory with no evidence, saying, among other things, that the Clinton family was out to get him. Jeff Flake, one of the very few undecided senators, told The Atlantic Festival this week that he's troubled.
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JEFF FLAKE: And I tell myself, you give a little leeway because of what he's been through. But on the other hand, we can't have this on the court. We simply can't.
INSKEEP: How important is this question? Jill Dash is vice president for strategic engagement at the American Constitution Society, which is a liberal legal advocacy group. Good morning.
JILL DASH: Good morning.
INSKEEP: Can you really conclude that Kavanaugh would be unfair on the bench just because he says people are out to get him?
DASH: I think there's a real concern there. You know, he spent the first week of his hearing for the Supreme Court nomination talking a lot about how judges should be neutral arbiters in calling balls and strikes, and he went to great lengths to explain the importance of that. And then he ended up on this past Thursday ending with the phrase, what goes around comes around. So I think that's very concerning.
INSKEEP: Sounding like he was making a threat for the future.
DASH: It certainly did.
INSKEEP: At the same time, when he says Democrats are out to get him, he may have been hyperbolic, but some Democrats are out to get him. They really don't want him to be on the Supreme Court.
DASH: Well, I think that's not really an appropriate role for a Supreme Court justice candidate, let alone a sitting judge, to talk like that. We expect judges in this country to be above the fray. It's why they wear black robes and they sit behind lecterns that literally sit above the fray in a courtroom. We don't expect judges to get down and dirty where politicians are. I think it's bad enough to have senators yelling at each other. We really don't expect judges to be politicians.
INSKEEP: If we accept, for the moment, for the purposes of this question, his assertion that he's innocent - he says he didn't do anything, or he doesn't remember doing anything - what is the manner in which he could have defended himself that would have left him untainted?
DASH: I think it would be fine for him to be impassioned. I understand at some basic level the defense that, if you feel like you're being wrongly accused of something, of course you're going to have passion about it. But his behavior on Thursday was, frankly, shocking in an era where not very much is shocking anymore. He interrupted senators. He answered questions with questions. It was unprofessional, and it was very surprising to hear a judge speaking like that. I don't think a judge would tolerate that from a litigant in their courtroom. The judge would be shocked. So I think - you know, there was a way for him to make his case, and in fact, I think Dr. Christine Blasey Ford made her case in a way that was passionate but not overly emotional.
INSKEEP: Much more calm.
DASH: And that's somebody who was talking about how she had been sexually assaulted, so...
INSKEEP: So if Kavanaugh gets onto the Supreme Court, what would you want to happen in cases involving Democrats? Would he have to be recusing himself all the time, and could somebody make him?
DASH: No one can make him, which is a real concern. There's nothing that forces Supreme Court justices to recuse themselves. Of course, parties would file motions to recuse where they feel like it's appropriate. I think if you have an issue that concerns women or liberal politics or even voting cases, I think there's a real concern as to whether he can be fair.
INSKEEP: Issues concerning women - you're saying that you would be making an argument, if you were a lawyer before the court, that he shouldn't be judging anything concerning women.
DASH: I mean, I don't know that I would make that argument that far, but...
INSKEEP: Certain issues, I guess you would say.
DASH: I think there are certain issues - look; there were already issues about whether he could fairly judge issues on presidential power, and there were lots of discussions about whether he needed to recuse at the beginning of this process.
INSKEEP: Oh, because President Trump might conceivably have some case before the court involving him, right. Go on.
DASH: I think there are numerous cases that could come before the court involving President Trump, and Judge Kavanaugh has made lots of comments about the extent of presidential power. So that was a concern already, and I think his demeanor last week shows that there are a lot more concerns about his temperament.
INSKEEP: Jill Dash of the American Constitution Society, thanks so much.
DASH: Thank you. Transcript provided by NPR, Copyright NPR.