U.S. Supreme Court nominee Brett Kavanaugh’s September 27, 2018 appearance before the U.S. Senate Judiciary Committee has raised serious questions about his temperament to be a Justice on the highest court in the land.
Kavanaugh’s appearance before the Judiciary Committee was triggered by multiple allegations of sexual misconduct he engaged in during his high school and college years in the early-to-mid 1980s. The appeals court judge delivered a roughly 40-minute handwritten opening statement to the committee.
Judicial Temperament in Question
In contrast to the credible testimony of Christine Blasey Ford, which was measured, thoughtful and convincing, the Kavanaugh statement was anger-driven and emotionally charged, so much so that the judge had to frequently stop his remarks in order to hold back crying.
The visual images of a prominent jurist speaking to both the committee and most of the nation on the brink of a complete and total emotional breakdown was both embarrassing and damaging to the very integrity of our judicial system.
Worse than the sophomoric emotions that saturated the statement was the unbridled angry manner in which Kavanaugh delivered the statement and the outrageous unsubstantiated charges he leveled during it.
For example, the judge said those who opposed his Supreme Court nomination were part of “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my political record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
MAGA Rhetoric Dangerous to Court and Country
Judge Kavanaugh did not offer one piece of credible evidence to support his charge that the opposition to his nomination was 1) “a calculated and orchestrated political hit” (whatever the means in the judge’s mind); 2) that the opposition was “fueled” by “pent-up anger” against President Trump and the 2016 election loss by the Democrats; 3) that somehow “the Clintons” are behind the opposition to his nomination; or 4) that “left-wing opposition groups” (whoever they may be in the judge’s mind) have spent “millions of dollars” opposing his nomination.
Judge Kavanaugh’s Clinton conspiracy theory is on the same level as the “Pizzagate Conspiracy Theory” (Democrats hiding pedophiles in pizza parlors) promoted by white supremacist conspiracy theorists, and often repeated by Russian trolls, during the 2016 presidential election. The utterance of such a wild conspiracy theory by a prominent federal judge seeking a position on the Supreme Court certainly justifies questions about whether Kavanaugh is emotionally and psychologically fit to sit on the most powerful court in the land.
Restraint, Fairness Essential to Operation of Justice
Writing for Judicial Research in March 2016, Julie Bickman, Ph.D., defined judicial temperament as “a form of restraint that appears as an even-handedness of vision, a thorough-going fairness that eschews anger in favor of reason and clings to respect of all parties as an essential ingredient for the operation of justice.”
In 2009, the American Bar Association, ABA Standing Committee on Federal Judiciary: What It Is and How It Works, endorsed the concept that judicial temperament includes “common sense, compassion, decisiveness, firmness, humility, open-mindedness, patience, tact and understanding.”
Judge Kavanaugh did not exhibit a single one of these judicial character traits when he delivered his opening statement to the Senate Judiciary Committee on September 27.
Kavanaugh is Disqualified for Elevation to SCOTUS
2400+ law professors have signed a letter to be presented to the Senate entitled “The Senate Should Not Confirm Kavanaugh.” In the letter, the law professors, from schools all over the country, joined in the statement that Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.”
The U.S. Supreme Court is not covered by the Code of Conduct for Federal Judges. This code was created, and is maintained, by the Judicial Conference of the United States. U.S. Supreme Court Chief Justice John Roberts, Jr., presides over the conference that includes every federal circuit court and other federal judges.
The Constitution Center reports that this Code of Conduct was adopted by the federal judiciary, with the assistance of the American Bar Association, in 1973. This code has been revised eight times since 1973. It applies to all federal judges but does not apply to Supreme Court justices.
The Judicial Conference states that “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.”
SCOTUS Resists Code of Conduct
The Constitution Center says that Supreme Court justices “aren’t required to observe the code;” that the Constitution requires only that the justices exhibit “good behavior” less they face possible impeachment.
And it is worth noting that since 1973 Congress has failed in its attempts to establish conduct guidelines for Supreme Court justices. According to the Constitution Center, the current Congress has pending before it a bill called the Supreme Court Ethics Act.
But if Chief Justice Roberts has anything to do with it, this ethics bill will never see the light of day. In a 2011 report, the chief justice said he did not believe Congress has “the constitutional power to impose conduct rules on the Supreme Court.”
Interestingly, since Judge Kavanaugh is a sitting judge on the D.C. Circuit Court of Appeals, the Code of Conduct applied to him when he delivered the now infamous September 27 rant before the Judiciary Committee. The Chief Judge of the Court of Appeals may very well want to at least discuss Judge Kavanaugh intemperate, irresponsible, and perhaps unethical, conduct before the Judiciary Committee.