The Volokh Conspiracy

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My Thoughts on the "Judicial Temperament" Criticism of Judge Kavanaugh


A law professor circulated a letter urging that Judge Kavanaugh be rejected because of his testimony at the hearings, and I circulated the following response, which I thought I'd share with others as well. (The quoted material in the fourth paragraph below is a reference to particular criticisms in the letter, as are the words "courteous" and "impartial.") I should note that other professors, including ones whose judgment I much respect, e-mailed me in response to say they disagree with my views, and I take their arguments seriously. Still, this is what I think. [DISCLOSURE: Judge Kavanaugh and I clerked the same year, and we saw each other socially on occasion during that year and likely a few times after.]

I hope that, before you sign on to the letter, you imagine how friends of yours would react if they were accused of a heinous crime that they did not commit—and this was done on national (international) television, with undoubted partisan motivation (and I happily acknowledge that both the Democrats and the Republicans are being partisan here). I speak here of human friends, not Vulcans.

"Painful," which is the adjective the letter uses, does not begin to describe it. I can't imagine how I would keep my composure in such a situation, even if I (like Judge Kavanaugh) were a judge who had a decade-long reputation of calm and politeness during the ordinary work (including the controversial work) of a court. (Of course, if you think he did commit the crime and is falsely denying it, then that would be an independent reason not to confirm him; but the letter is not based on that assumption, but rather seems to take the view that, even if he is innocent of the charges, it is disqualifying for him to have reacted as he did.)

Would I be "temperate" if faced with such public accusations? Courteous? Impartial? Would I really refrain from anything that might be called "inflammatory," and be sure never to "interrupt[]"? Would you?

Is this what we have come to? We see someone being subjected to unbearable, unearned, televised humiliation and disgrace. In front of his family. Of his young daughters. Of his and their friends. Of colleagues. Of the nation and of the world. 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"? Have we so lost any empathy?