ILA | Swing and a Miss: “Experts” Analyze Brett Kavanaugh’s Sports Writing for Clues to Judicial Philosophy

We’ve said it before: The media’s output has become so ludicrous and detached from common experience – particularly as it concerns law and politics – that it’s difficult at times to determine what it’s even trying to do. This week’s example comes to us courtesy of The New Yorker, a publication that indulges in a variety of genres, including what purport to be analyses of current news, cultural essays, and humor pieces. Their pitch line for would-be subscribers is, “Read something that means something,” with a reference to the outlet’s “award-winning journalism.” But the August 27 issue has an article about President Trump’s latest nominee for the U.S. Supreme Court that is so devoid of value or intellectual rigor that, if it has any meaning at all, it can only be that the publication has erased any distinction between “thought piece” and satire.

Entitled “Brett Kavanaugh, Sportswriter,” it attempts to answer the question, “Could there be clues to the Supreme Court nominee’s views in his college sports reporting? The article was published under “The Bench” heading, which based on other stories in that category seems to suggest content seeking to provide insight into the judicial or legal realms. In that regard, however, the article succeeds only to the extent that the movie “Free Willy” could be said to have been a serious meditation on marine ecology.

There certainly can be no doubt that the prevailing view at The New Yorker is that Kavanaugh’s confirmation would be a bad thing. The publication has run a series of stories on him, all suggesting he is part of the Republican agenda to dismantle laws and judicial precedents favored by the Democrat Party. About the nicest thing that has been said about Kavanaugh in The New Yorker is that his nomination represents the dubious resolution “of an outrageous power grab by a radicalized political party, its wealthy backers, and a rogue President.” 

The irony is that Judge Kavanaugh has, by all accounts, one of the most extensive records as a federal appellate judge of any U.S. Supreme Court nominee. According to the Congressional Research Service, he has “adjudicated more than 1,500 cases” in over 12 years on the bench and has authored 306 judicial opinions. Certainly anybody who is searching for insight into his judicial philosophy, legal reasoning, and interpretive methods has a ready treasure trove of serious research material. And if that record shows anything, it is that he is a thoughtful, competent, and principled jurist who is eminently qualified to sit on the nation’s highest court.

Needless to say, that record is therefore being largely ignored by his media critics, who in most cases probably couldn’t understand it, even if they were willing to try. 

The author of The New Yorker story chose instead to focus on 24 articles that Kavanaugh had written from 1983 to 1986 in his role as a college sports reporter for the Yale Daily News, well before he had attended law school, much less donned the robes of a federal judge. “Could there be hints of potential Supreme Court rulings under headlines like ‘Elis Trounce Jaspers’ and ‘Hoopsters Head West’?,” the article asks. “The question was put to some experts.”

The “experts” that the author assembles for the article include a writer for Sports Illustrated, a professor of sports journalism, and two law professors. Of course, there is no recognized science to interpreting how undergraduate sports reporting translates into performance as a U.S. Supreme Court justice. In fact, there is no intuitive or convincing connection whatsoever, nor does the article build anything close to a case for one. Sports journalists are not expected to be scholars of jurisprudence, and lawyers have no necessary expertise in sports

Many people have not fully formed sophisticated opinions even about football and basketball in their late teens and early 20s, much less the larger issues of life and professional practice. And while Kavanaugh was an usually bright and ambitious undergrad, there is absolutely no reason to believe he already had such a comprehensive philosophical outlook as a college student that every word he wrote about those sports telegraphed how he would later go about judging.

But to no great surprise, the “expert” conclusions reported in the article merely coincide with well-worn opposition talking points to Kavanaugh’s confirmation, mainly that he has an expansive view of presidential powers and would therefore let the supposedly “rogue” Trump presidency run amok.

The only thing this exercise proves, however, is that there is no end to how once respected professions will prostitute themselves for political ends and that Kavanaugh’s critics have found no principled, legitimate basis to argue that he is incompetent to serve on the Supreme Court.

Or to put it in terms more appropriate for the article’s subject material, the clock is winding down, and the #Resistance has yet to put anything on the board against an opponent who continues to run circles around their game plan.