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A demonstrator holds a sign opposing Kavanaugh.
Reuters/Kevin Lamarque
A demonstrator holds a sign opposing Kavanaugh.
TO ERR IS HUMAN

What makes a good Supreme Court Justice?

By Ephrat Livni

“I am an independent, impartial judge,” wrote US Supreme Court nominee Brett Kavanaugh in an op-ed in the Wall Street Journal (paywall), ahead of the senate’s “yes” decision today to advance his confirmation vote.

“Yes, I was emotional last Thursday,” he admitted, referring to his erratic and dramatic testimony before the Senate Judiciary Committee on Sept. 27 regarding accusations of sexual misconduct. Nevertheless, Kavanaugh promised in his op-ed, he has the character necessary to sit on the Supreme Court.

The judge’s last-minute plea for understanding in a major publication is one more unusual move in an odd and contentious confirmation process that has revealed a dark side to Kavanaugh. Although he has repeatedly attempted to reassure senators that he’ll be an impartial and apolitical arbiter with the right temperament to make decisions for the entire country, last week, he accused Democrats of engaging in a political conspiracy against him. He also raged, yelled, cried, and was belligerent with senators who questioned him.

“I said a few things I should not have said,” the judge admitted in his op-ed, responding to criticism that he engaged in a “political screed” and displayed a temperament unbefitting a judge. “I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.”

It may be human to err and it’s no doubt true that Kavanaugh felt like he was first and foremost a son, husband, and father when he spoke in his own defense last week. But that’s not all he was. He was a judge interviewing for the most prestigious legal job in the land, a position that demands candidates be exceptional.

“Judges do not yell, scream, or cry,” said Georgetown Law professor Victoria Nourse, who was chief counsel to Joe Biden when he was chair of the Senate Judiciary Committee, and a contributor to the Federalist Society, which is widely respected among conservatives.

She told Quartz that Kavanaugh’s “histrionics” and erratic display last week indicates that he lacks the character of a Supreme Court justice. “I don’t begrudge anyone showing emotion when they have been unfairly accused, but judges are supposed to be able to do things the ordinary person is not capable of doing. The ordinary person can let his emotions fly; judges are held to a higher standard. They must be able to stand above the emotions and the politics of the day,” Nourse said.

Kavanaugh doesn’t seem to meet that standard. He showed that he can’t control his emotions and confirmed in his op-ed that he doesn’t understand what is expected from a judge at the highest levels.

Asking that the American public understand a judge’s personal emotions suggests that Kavanaugh fails to comprehend that his is a service position; if appointed to the high court, he’ll be working for the people of the US. He will be expected to put his personal feelings aside every day and in every case.

Vanderbilt University law and medicine professor Terry Maroney points out in the introduction to a 2018 article posted on the University of California-Berkeley law school site that judicial temperament “generally is thought to manifest in consistent exercises of patience, level-headedness in challenging moments, treating people with courtesy, projecting a dignified demeanor, and being a respectful colleague.” Empathy and impulse-regulation are important, she says, and “a tendency to be quick to both feel and act out of anger” indicates that a prospective judge is not qualified.

Kavanaugh’s explanation is a last-minute plea is no doubt meant to reassure the general public, senators, and legal experts who’ve questioned his outburst, that he does have what it takes to be a Supreme Court justice. Yet because he was so erratic last week, the American Bar Association this morning sent a letter to the judiciary committee noting that its committee on judicial evaluations is reexamining Kavanaugh.

The letter states:

New information of a material nature regarding temperament during the September 27 hearing before the Senate Judiciary Committee has prompted a reopening of the Standing Committee’s evaluation. The Committee does not expect to complete a process and re-vote prior to the scheduled Senate vote. Our original report must be read in conjunction with the foregoing.

Doubts about Kavanaugh’s character have been raised in the past. As Heather Timmons wrote in Quartz before he was nominated, Kavanaugh’s colleagues previously called him “sanctimonious” and criticized his ability to be fair and balanced.

The latest ABA missive shows Kavanaugh’s temperament for the position on the high court is questioned by colleagues in the law but won’t be addressed until after the government decides on his appointment—yet another unusual element in a very strange confirmation process.