Brett Kavanaugh Does Not Have the Proper Judicial Temperament or Neutrality to be a Supreme Court Justice

By JOEL D. JOSEPH

Brett Kavanaugh may have an exceptional résumé, but he does not have the judicial temperament or neutrality to be an honorable and trustworthy Supreme Court Justice. Judicial temperament means patience, listening, not interrupting others, courtesy, an even temper, respect for all parties and impartiality. Kavanaugh fails to meet all of these fundamental criteria.

After practicing law for 40 years and observing hundreds of judges in 25 jurisdictions, good judges must have extreme patience. Attorneys and clients often drone on, are obnoxious, often ill-prepared and persistent. Good judges are extremely patient and neutral. Good judges are tolerant and respectful. Kavanaugh is not. He showed his lack of patience with every Democratic senator. He showed his intolerance by raising his voice, showing his emotions and crying about questioning that was fair, relevant and important. Democratic senators only had five minutes to ask questions. Judge Kavanaugh could not even stay calm and respectful for five minutes!

Bill Moyers of PBS in 1999 interviewed Justice Anthony Kennedy, whose seat Judge Kavanaugh seeks. Justice Kennedy revealed his criteria for selecting his replacement: “I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality and commitment to other more constant values as to which there is general consensus.”

Patience is a Judicial Virtue

Kavanaugh should have learned at Georgetown Prep, the Catholic boys’ school he attended, that patience is one of the seven Christian virtues. It should not have been very difficult for Brett Kavanaugh to be patient for the allotted five minutes of time given to each Democratic senator to ask him questions. But he just couldn’t do it. He failed to listen to them, interrupted constantly and failed to answer their questions directly. He would constantly divert the subject and go back to discussing his high school achievements, his church attendance and Yale law school background while ducking answers to direct, reasonable and relevant questions.

Kavanaugh was discourteous to all of the Democratic Senators, snapping back at them when they asked about his drinking excessive amounts of beer. He asked a senator, “do you like beer?” He querried another senator, “What do you drink?” He asked Sen. Amy Klobuchar, D-Minn., if she ever blacked out, as Kavanaugh has been accused of doing. It is not appropriate for nominees to ask questions of the senators, but Kavanaugh did so, displaying his arrogance and ill temper. He should have just answered the questions clearly and concisely without turning red, making snide remarks and grimacing. But he just couldn’t do it.

Kavanaugh Cried in His Beer

There is no crying in judging, just like Tom Hanks’ character, in the 1992 film, A League of their Own, told his female players who couldn’t take criticism, “There is no crying in baseball.” Judges must keep their emotions intact even in the face of difficult questioning. Kavanaugh visibly wept during the hearings. He had less control of his emotions than Dr. Chrstine Blasey Ford, who accused him of sexual assault. It would have been reasonable for Dr. Ford to tear up while discussing a physical assault and attempted rape. But she kept her emotions and temper under control. In stark contrast, Kavanaugh just could not control his emotions or his temper, demonstrating his lack of judicial temperament.

Judge Kavanaugh Is Not Neutral or Impartial

Kavanaugh did not even give the appearance of impartiality. He whined extensively about a great “left-wing conspiracy” against his candidacy. He growled that the Clintons were seeking revenge for his prosecution of President Clinton. Kavanaugh’s angry testimony positioned him as a right-wing judge. That is hardly being impartial, open-minded and neutral. Kavanaugh should have stopped whining and crying and sat quietly, answering questions directly and demonstrating that he could keep his cool under pressure. He just couldn’t do it.

Based on Justice Kennedy’s stated qualifications of temperament and neutrality, Kavanaugh demonstrated that he does not have either the proper judicial temperament or neutrality to sit on the US Supreme Court. He does not have the temperament or neutrality to sit as a judge on any court, for that matter. He should resign his seat on the US Court of Appeals for the District of Columbia Circuit. And his nomination should be voted down by the US Senate.

Joel D. Joseph, a lawyer and author of Black Mondays: Worst Decisions of the Supreme Court, has testified before the Senate Judiciary Committee concerning judges he felt did not have the right temperament for the federal bench. Joseph was publisher of Sen. Paul Simon’s book on the Supreme Court nomination process, Advice and Consent. He also is chairman of the Made in the USA Foundation.

From The Progressive Populist, November 1, 2018

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