The Volokh Conspiracy

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


A Short Response to Eugene's "Judicial Temperament" Post

Further thoughts on why Kavanaugh's testimony is disqualifying.


In his post here on the VC ("My Thoughts on the 'Judicial Temperament' Criticism of Judge Kavanaugh") giving his reasons for not signing onto a law professors' letter urging rejection of Kavanaugh's nomination because of his testimony at the hearings, Eugene Volokh wrote:

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). … "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. … 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?

I respectfully disagree with Eugene's point. It's not just a case of "refraining from anything that might be called 'inflammatory'." It is a case, as I suggested in an earlier posting, of having transformed a difficult but sober discussion of a complicated issue into a partisan brawl. He had lots of help; as Eugene says, "both the Democrats and the Republicans are being partisan here." Right—but we expect our politicians to be partisans, and we can forgive them a fair bit of partisanship. But not our judges. He did not have to give vent to his rage and further poison our poisoned politics; it's not as thought it was a spur-of-the-moment lashing out that he might subsequently walk back. This was a planned assault, and it will transform—and not in a good way—the way people will look at him (and the Court) forever should he be confirmed.

The question is not, as Eugene puts it, "would I do the same thing in the same circumstances?" The question is "If I did the same thing in the same circumstances, and vented my rage in that way, would I be entitled to confirmation of my nomination for a seat on the Supreme Court." For the sake of the Court, the answer is "no."

Plus, he lied under oath. At least, so it seems to me. About the "small things" in the long-ago past: the meaning of "boof," the meaning of "Devil's Triangle," the references to "Renate" in the Yearbook, his propensity to drink. Maybe you found his explanations persuasive; I did not. It's probably not proof of perjury beyond a reasonable doubt, but I don't need proof beyond a reasonable doubt; this isn't a criminal trial, and Kavanaugh's liberty is not at stake in a confirmation vote, this is about whether he moves from the second-most important court in the land to the most important court in the land.

I have plenty of empathy for him; I can certainly understand not wanting to to expose his family to some pretty unattractive things about his behavior as a young man that maybe they weren't familiar with. I can understand that. I think many people—myself included—would give him him a pass had he just said "I was a jackass in high school and college and did a lot of things I'm ashamed of" and left it at that, answering whatever questions might come his way as truthfully as possible. But he didn't do that. He made up explanations for all of them. And lying under oath is lying under oath. The precedent—that you can be confirmed for a seat on the highest court even though you may well have committed perjury—is a terrible one, and one that will do deep damage to the country and its institutions in the future.