Brett Kavanaugh's Emotions Don't Disqualify Him, but His Inflammatory and Evasive Strategy May Be Another Matter
While the Supreme Court nominee's anger and frustration last week were understandable, his tactics were troubling.
Amid the debate about whether Brett Kavanaugh's performance at last week's Senate Judiciary Committee hearing showed that he lacks the proper temperament to serve on the Supreme Court, the nominee defends himself in today's Wall Street Journal. Like his testimony last week, his essay is not entirely convincing.
"My hearing testimony was forceful and passionate," writes Kavanaugh, whose nomination cleared a procedural vote today and is expected to be narrowly approved by the Senate tomorrow. "That is because I forcefully and passionately denied the allegation against me. At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled."
Just as Kavanaugh admitted during his testimony that he sometimes "had too many beers" in high school, he concedes in his Journal piece that he sometimes went too far at the hearing. "I was very emotional last Thursday, more so than I have ever been," he says. "I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. 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."
All of this is plausible as far as it goes. If you believe that Kavanaugh did not, in fact, try to rape Christine Blasey Ford 36 years ago, his anger and frustration are not only understandable but justified. As UCLA law professor Eugene Volokh noted here the other day, it would require a complete failure of empathy to be puzzled by Kavanaugh's emotions or view them as evidence of a character flaw. "We see someone being subjected to unbearable, unearned, televised humiliation and disgrace," Volokh wrote. "And when he verbally lashes out in anger, we say, 'Aha! You're not qualified, because you reacted to this dire, extraordinary provocation precisely the way normal human beings would'?"
But neither Volokh nor Kavanaugh acknowledges the extent to which the nominee's "forceful and passionate" defense was also a premediated partisan offensive. The written testimony that Kavanaugh submitted the day before the hearing was relatively restrained. But by the time he sat before the committee, his opening statement included this passage:
This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process, but you have replaced advice and consent with search and destroy.
Since my nomination in July, there's been a frenzy on the left to come up with something, anything to block my confirmation. Shortly after I was nominated, the Democratic Senate leader said he would, quote, "oppose me with everything he's got." A Democratic senator on this committee publicly, publicly referred to me as evil—evil. Think about that word. It's said that those who supported me were, quote, "complicit in evil." Another Democratic senator on this committee said, quote, "Judge Kavanaugh is your worst nightmare." A former head of the Democratic National Committee said, quote, "Judge Kavanaugh will threaten the lives of millions of Americans for decades to come."
I understand the passions of the moment, but I would say to those senators, your words have meaning. Millions of Americans listen carefully to you. Given comments like those, is it any surprise that people have been willing to do anything—to make any physical threat against my family, to send any violent e-mail to my wife, to make any kind of allegation against me and against my friends—to blow me up and take me down?
You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.
The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking.
Those efforts didn't work. When I did at least OK enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.
Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn't take me out on the merits….
This whole two-week effort has been 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 judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.
Kavanaugh may believe all that. It may even be true. But saying it was not temperate or diplomatic. It was intentionally inflammatory, and its partisan edge went beyond even Clarence Thomas' description of the Anita Hill hearing as "a high-tech lynching for uppity blacks who in any way deign to think for themselves." As David Post noted in response to Volokh, "this was a planned assault" that helped turn "a difficult but sober discussion of a complicated issue into a partisan brawl." Kavanaugh's vituperation against Democrats came before they started asking him questions, when, in the heat of the moment, he might have said things he regretted. Things like this:
Amy Klobuchar: Was there ever a time when you drank so much that you couldn't remember what happened, or part of what happened the night before?
Brett Kavanaugh: No, I—no. I remember what happened, and I think you've probably had beers, Senator, and—and so I…
Klobuchar: So you're saying there's never been a case where you drank so much that you didn't remember what happened the night before, or part of what happened.
Klobuchar: It's—you're asking about, you know, blackout. I don't know. Have you?
Kavanaugh later apologized for that exchange, but his irritation was understandable, since he had already answered this question several times and answered it yet again for Klobuchar, who nevertheless asked him one more time. It is harder to understand why Kavanaugh repeatedly resorted to evasion and obfuscation when asked about trivial subjects such as his teenaged drinking and high school yearbook jokes. "In retrospect," he said in his initial written statement, "I said and did things in high school that make me cringe now. But that's not why we are here today. What I've been accused of is far more serious than juvenile misbehavior." That is the line he should have taken at the hearing: There is a big difference between stupid teenaged behavior and attempted rape.
I'm not sure Kavanaugh's strategy at the hearing showed he lacks a judicial temperament, which might better be assessed (as he argues) by his dozen years on the U.S. Court of Appeals for the D.C. Circuit. But I can understand why his performance might give pause even to someone who was otherwise inclined to support his nomination.