Judge Kavanaugh Is One Angry Man ~ OP/ED, NYT

He’s shown us that he’s up for a fight, but can he rule dispassionately?

By Greg Weiner 

Oct. 1, 2018

An expressive Judge Brett Kavanaugh testifying before the Senate Judiciary Committee on ThursdayCredit Photographs by Andrew Harnik/Agence France-Presse — Getty Images

The results of the investigation the F.B.I. is undertaking into the sexual assault allegations against Judge Brett M. Kavanaugh may objectively disqualify or vindicate President Trump’s nominee to the Supreme Court. Regardless, the Senate Judiciary Committee’s extraordinary hearing on Thursday has already uncovered vital evidence about his suitability for the bench: the injudicious temperament he displayed. The eruption of Mount Kavanaugh raises questions about judicial temperament that may be enough on their own to resolve the nomination.

Mr. Kavanaugh fulminated: The process was “a national disgrace.” He interrupted. “What do you like to drink?” he demanded of Senator Sheldon Whitehouse, Democrat of Rhode Island. He invoked old political disputes and argued that the accusations against him were fueled by “pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” He appeared to level fresh political threats: “And as we all know, in the United States political system of the early 2000s, what goes around comes around.”

These qualities endeared him to President Trump, at least for a while. Judge Kavanaugh’s performance “showed America exactly why I nominated him,” the president tweeted. Retribution and distemper — even under extraordinary stress, which can obscure but also amplify a person’s character — are not qualities one should seek in a Supreme Court justice or a judge of any kind. Judge Kavanaugh was not calling balls and strikes. He was swinging wildly at the ball.

This is not about whether an originalist should replace Justice Anthony Kennedy. One almost certainly will. President Trump has confined himself to a list of them, and Senate Republicans have months left to confirm one, at the very least. It is about whether that justice will have both the ability and, crucially, the credibility to render neutral judgments of law. This is also true for the court as a whole, especially in an environment in which groups of justices in both wings of the institution are perceived as political factions that deliver for the parties by which they were nominated.

Judges are permitted human emotions, of course. What they are not permitted is the expression of partisan sentiments in official settings. A judicial temperament ideally includes maintaining one’s composure. Most important, it entails an ability to set aside one’s preferences in favor of law and, crucially, the grace to be seen as doing so.

The constitutional framer and early Supreme Court Justice James Wilson said judges “ought to be placed in such a situation, as not only to be, but likewise to appear superior to every extrinsic circumstance, which can be supposed to have the smallest operation upon their understandings, or their inclinations.” That is, being objective is not enough. One must also appear to be. Would an adverse opinion written by a Justice Kavanaugh against a Democrat be regarded as equal justice under law or what went around coming around?

That is why the most revealing element of Thursday’s hearing was not Judge Kavanaugh’s response to sexual assault allegations — his denial was already well known — but rather his manner of delivery. It is perhaps unfair to expect Judge Kavanaugh, facing serious allegations that he asserts have slandered and disgraced him, to slow-play his response. But there is no civil right to serve on the Supreme Court. The question is not what is fair to Judge Kavanaugh but rather what is constitutionally healthiest for the republic. Judicial confirmation hearings are auditions for serving as a judge. Judge Kavanaugh showed himself to be up to fighting when attacked, but less so to judging dispassionately.

There is no glory for either side in these wars. One searches in vain for combatants who had not reached conclusions that conformed to their partisan or judicial views well before either Dr. Christine Blasey Ford or Judge Kavanaugh was heard.

The contest over Judge Kavanaugh’s nomination is the latest battle in a political version of Thomas Hobbes’s war of all against all. The urgency of all sides trying to win at all costs is evidence of an increasingly swollen judiciary. Too much power is changing hands with each vacancy.

Politically speaking, who did what to whom, and who did it first, is an unanswerable question whose pursuit will only fuel the cycle. The point at the moment is that Judge Kavanaugh had a choice between accelerating the combat — clearly Mr. Trump’s method — and declining to join while still defending his name. The latter course would have accomplished dual goals: refuting the accusations while acting like an occupant of the office to which he aspires.

That choice confronts any public figure, but judges are constrained in their permissible responses. It is true the accusations have indelibly tainted Judge Kavanaugh. That the truth appears to be unknowable with objective certainty adds an element of tragedy to the situation.

But it is equally true that Judge Kavanaugh’s response to the allegations has tainted his qualifications for the office he seeks. If he is confirmed, it will also taint the institution he hopes to join and not only because his opponents — they, too, are combatants in this continual war — will use it to question every vote he casts on the court that even vaguely touches on a political issue.

There is, again, no glory to be had. Perhaps the F.B.I. will uncover useful evidence about what happened 36 years ago. But to advise and consent to his nomination, the issue the Senate must resolve is not merely how Brett Kavanaugh behaved in 1982. It is how Judge Kavanaugh comported himself in 2018, on television. Whatever else we can say, he did not act like a justice of the highest court in the land.


Greg Weiner (@GregWeiner1) is a political scientist at Assumption College and the author, most recently, of “American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.”

Before becoming a political scientist, Mr. Weiner was a senior aide to Senator Bob Kerrey.

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