The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Judge Kavanaugh, Judicial Temperament, and the "Circus"

Kavanaugh was correct: it was a circus. But he was the one who made it a circus - and for that (apart from anything that he may or may not have done in 1982) he should not be confirmed.


"This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades."

Judge Brett Kavanaugh, 9-28-2018

He was right. It has been, like much of our political life these days, a "circus."

But here's the thing: the hearings were not a circus—at least, not until Judge Kavanaugh took the stand. Quite the opposite, I thought. The first portion of the event had real dignity to it; I would rate it one of the Senate's finer moments in many years (a low bar, but still …). Conducting a public discussion of sexual assault is a very, very difficult task, and I thought the Senators (and Ford) largely pulled it off. The decision by the Republicans to use Rachel Mitchell as a surrogate questioner worked out wonderfully well; she, too, seemed to acknowledge and recognize the historical importance of the moment, and to my ears her questions were probing but respectful—respectful of Ford, respectful of Kavanaugh's right to be heard, and respectful of the whole process. Again: dignified. Most welcome in a world where dignity sometimes seems to have disappeared completely from our public life.

But then Kavanaugh brought the circus into the hearing room from outside. I thought it was a shameful performance.

I am not unsympathetic to his anger and his fury. If his account of the events is true—and I was and I remain open to the possibility that it is true—he has indeed been subject to a terrible public humiliation that no one would wish on their worst enemy. It is not hard to imagine—again, in the world in which he, and not Ford, is telling the truth—why he would be full of rage and righteous indignation.

But that does not excuse his venting of that rage and righteous indignation at the hearings. He didn't have to do it. There was a high road: He could have made his case, on the merits, without the fire-breathing and the invective and the anger.

"I'm innocent of this charge. I have no recollection of the events or of attending a party with Dr. Ford. There's no corroborating evidence from anyone who was allegedly present at the party. My calendar shows that it is unlikely that I was in DC when the party could have taken place. It is inconsistent all of my behavior in 25 years of public life. I bear Dr. Ford no ill will; she may have been assaulted by someone, and the experience must have been a horrific one, and she has my deepest sympathies—but I had nothing to do with it."

What good did it do for him to bring in all the other stuff—the left wing conspiracy, the revenge of the Clintons, and all of that?

I get it—he's pissed off. And maybe he's got a very good reason for being pissed off. And maybe all that venting made him feel good, in a road-rage kind of way.

But he's a judge, for God's sake, and he's trying to secure appointment to the most select group of judges we have. Judges (at least the good ones) control themselves when they are pissed off at people—pissed off at the parties, or at the lawyers representing the parties. They know—the good ones—that they are not supposed to let their private emotions bubble over into their public acts. If he cannot control himself in this setting, why would we think he can control himself on the bench? How is he going to rule in a case involving parties—the ACLU, say, or Planned Parenthood—that are part of the left wing conspiracy against him?

He could have elevated the discussion; instead, he made it a circus. He could have kept all of that anger and rage to himself, for the sake of the process and for the sake of the institution he's trying to join.

But he didn't. And now that he's done it, he has virtually insured that a Supreme Court with a Justice Kavanaugh sitting on it will be mired in the kind of horrible, destructive, and poisonous partisanship that that is wrecking the other branches of the federal government. It's a ghastly prospect. It will set in concrete, for a generation, the already-worrisome politicization of the Court and of everything it does. Anyone who cares about the legitimacy of the Court and about the Court's role as custodian of the Rule of Law, should be deeply concerned about the prospect. Starting with Chief Justice Roberts, who does, I believe, care deeply about the legacy of the Roberts Court and who has, I hope, communicated his views on the damage that Kavanaugh's appointment would wreak on the institution in his care to the appropriate Senators in charge of this process.

And notice: this is all assuming Kavanaugh's telling the truth about the events of 1982.

He has to withdraw, or be withdrawn—not because of something he did or did not do 36 years ago, but because his presence on the Court would, because of what he did and what he said last week, do terrible harm to one of the few institutions we have left that has avoided succumbing completely to the poison of partisan politics.