In 1977, in my capacity as police reporter for The Berkshire Eagle, I covered a big murder trial.
The Berkshire Eagle, still published in Pittsfield, Mass., focused on local news, much as we do at the Islander and The Ellsworth American. As is so often the case with New England communities, many of the towns in Berkshire County had had their 15 minutes of fame. Herman Melville once lived in Pittsfield. There, with Mount Greylock for inspiration, he wrote “Moby Dick.” For Stockbridge, it was Norman Rockwell, Arlo Guthrie and James Taylor. My first beat, Great Barrington, was the birthplace of W.E.B. DuBois, the great civil rights activist who helped found the NAACP in 1909. Lenox is the location of Tanglewood, summer home of the Boston Symphony Orchestra. Many of the other towns in the county had similar claims to fame.
But we’d never had a murder like this.
A leg breaker from Stoughton, Mass., had driven out to Pittsfield in the middle of the night and visited this guy in his house. The guy being visited was a large fellow. The DA actually referred to him as “the Incredible Hulk.” The visitor from Stoughton shot Mr. Hulk dead. Agitated, the gentleman leapt into his getaway vehicle (a station wagon) and got lost in the Berkshire foothills. To be fair, he was new to western Massachusetts. Also, he was drunk. And while I hesitate to suggest that the gunman had friends in high places, three well-dressed lawyers came out from Boston to see to his defense and that of a co-defendant.
The district attorney went at the gunman like a robin at a worm. But the defense counsel was equal to the challenge. The examining and cross-examining, rebuttals and sur-rebuttals brought to mind an Olympic-level ping pong match. Then, as the DA was about to ask a question of an eyewitness, one of the Boston lawyers popped up.
“Your honor, I object!”
The judge, an affable scholar, advised the smart, young defense attorney that the DA had not yet uttered his question.
“Yes, your honor, but I know what he’s going to say.”
The judge became less affable. He scolded the fancy lawyer for practicing ESP in his courtroom. Objection overruled.
Clearly, that particular event in that particular murder trial stayed with me, lo, these many years. I didn’t even know it was in the disorganized attic of my brain until the recent dustup over President Trump’s nominee to replace Justice Anthony M. Kennedy on the Supreme Court. Opponents of Brett M. Kavanaugh’s appointment are demanding that loyal Democrats and centrist Republicans come out against Kavanaugh before next month’s confirmation hearings. One activist cell urges Democratic senators to boycott the hearings.
So here’s the thing. Many of the people who do not want Kavanaugh appointed do not even want to hear what he has to say for himself. That’s why I had this total recall epiphany of an episode during a 1977 murder trial: “I know what he’s going to say.”
OK, but why not hear him out?
For one thing, if Democrats succeed in delaying or deflating the confirmation process with pre-emptive strikes, they may expect the same with a cherry on top when they are once again the majority and they have a nice progressive picked out for the high court.
Also, who did they think Trump would pick? A liberal? A Green? Jerry Brown?
Of course he was going to pick a conservative. That has been Trump’s wish all along.
But this is an area where you should be careful what you wish for. Republican President Gerald Ford nominated Republican jurist John Paul Stevens to the Supreme Court and the nation got one of its great liberals. Stevens supported affirmative action, opposed the Citizens United decision and, in retirement, called for repeal of the Second Amendment.
When Republican President Eisenhower nominated William Brennan, a Catholic, in 1956, the National Liberal League protested that Brennan would take his orders from Rome. Never happened. His record in defense of free speech set him apart as one of the court’s enduring liberal voices.
It probably won’t happen again. But the Kavanaugh nomination is not the hill to die on. The stage was set two years ago when Trump was elected. If Kavanaugh is not confirmed (fine with me), Trump will simply nominate someone very similar in temperament and judicial history.
That’s the process. It’s Article 2 in the Constitution. So can we just get on with it? Might we hear what he has to say?
Stephen Fay is managing editor of The Ellsworth American.