On the Question of Judicial Temperament
Last Thursday, we watched Supreme Court nominee Brett Kavanaugh vigorously defend himself against very serious charges of misconduct that he has consistently and unequivocally denied, and for which no corroboration seems to exist.
In the wake of that hearing, we began to hear murmurs, which then escalated into much louder criticisms, that Judge Kavanaugh lacks the necessary judicial temperament to serve as a justice on the Supreme Court.
From 1988 to 2006, I served as a district judge in the United States District Court for the Southern District of New York, becoming chief judge in 2000. Additionally, I have worked with many judges throughout my career, in private practice and in government service. So the concept of judicial temperament is not an abstraction for me, but one that I have had to give considerable thought to.
As it turns out, Judge Kavanaugh is not a newcomer to these concepts either. He had not one but two hearings to become an appellate judge on the D.C. Circuit. His first hearing was in 2004, but his nomination was initially filibustered by Senate Democrats for partisan reasons, based on his role in President George W. Bush’s administration. He was re-nominated and eventually confirmed in 2006, but not before being subjected to another round of intense partisan attacks.
With the bitter taste of partisan acrimony still in his mouth, Judge Kavanagh began his tenure on the D.C. Circuit — considered by some to be the second-most important court in the country. He has served in that role with distinction and earned widespread respect across the ideological spectrum. It was no surprise to those of us who know him that Elena Kagan invited him to teach at Harvard Law School when she was dean there; or that he was recently introduced to the Senate Judiciary Committee by leading feminist lawyer Lisa Blatt; or that he has been praised by leading legal liberals such as former Obama Solicitors General Don Verrilli and Neal Katyal.
Importantly, his contentious confirmation to the D.C. Circuit did not distort his view of what a judge’s role is — to apply the law faithfully and impartially. Even when politically charged cases came his way, he did not shy away from his paramount commitment to the rule of law.
In 2009, Judge Kavanaugh was assigned to a three-judge panel in the politically charged case EMILY's List v. Federal Election Commission. Writing for the panel, Judge Kavanaugh’s opinion ruled in favor of the progressive and pro-choice interest group EMILY’s List in a case involving challenges to limits on campaign finance expenditures. Notwithstanding the brutal and partisan confirmation battle he had endured only a couple of years prior, Judge Kavanaugh – to no one’s surprise -- demonstrated his capacity to set politics aside and follow the law where it led him in deciding the case.
Judge Kavanaugh's critics ignore such evidence of independence and judicial temperament. They also ignore that our legal system recognizes that judges are real people who sometimes have intense positions, which is why judges don’t decide their own cases or cases in which they have a personal connection; instead they recuse themselves. Has Judge Kavanaugh given any reason to believe he would not recuse himself in any case in which his impartiality could reasonably be questioned, or one in which he had an actual conflict of interest? The answer is no.
Earlier this week, UCLA Law Professor Eugene Volokh documented his experience of being recruited along with other professors to sign a letter opposing Judge Kavanaugh on the basis that he lacks judicial temperament, and his response to the fellow law professors.
Professor 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.
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?
Professor Volokh raised a critical question — one that should be asked as we weigh this issue of temperament and as we stand in the midst of one of the most extraordinary confirmation battles in history.
In resolving this question of temperament, ultimately we must look to the most probative evidence of what Judge Kavanaugh will be like as a justice, and that evidence is his 12 years of service on the D.C. Circuit.
We must examine the endorsement of the lawyers who have appeared before him in court. On August 27, 2018, a bipartisan group of 40 Supreme Court advocates — the nation’s leading appellate lawyers — wrote a letter in support of Judge Kavanaugh’s nomination.
On the matter of temperament specifically, the group wrote:
“Those of us who have appeared before him appreciate his impressive ability to distill complex legal issues to their essence, the incisiveness of his questions, and the unfailing courtesy he extends to his colleagues and to counsel who appear before him.”
Likewise, the ABA’s Standing Committee on the Federal Judiciary gave Judge Kavanaugh a unanimously well-qualified rating for the position of associate justice of the Supreme Court. As explained in its report on Judge Kavanaugh’s nomination, the Standing Committee “reached out to 471 judges, lawyers, and professors for information regarding Judge Kavanaugh’s integrity, professional competence, and judicial temperament.” To its inquiry, the committee received 120 responses, and the process included interviews with those “who had personal knowledge of Judge Kavanaugh through their professional or personal dealings with him.”
Simply put, the evidence for Judge Kavanaugh's temperament is found in the hundreds of personal interviews conducted on the subject by those who know him personally, the accounts of those who have practiced law before him, and the thousands of people who have signed letters in support of his nomination. His supporters cover the ideological spectrum and have personally interacted with him in his decades of public service.
And then we should ask the question, if you were charged similarly serious crimes of which you believed you were completely innocent, how would you respond?