As a trial lawyer of 33 years, watching Brett Kavanaugh’s astonishing opening statement at the Senate Judiciary Committee hearings on September 27, my immediate reaction was, “How could he be doing this? In public and on the record! Has he lost his mind?”
Kavanaugh is a highly experienced, very smart jurist; he knows the meaning and importance of demonstrating “judicial temperament.” He knows that a judge’s reputation among his colleagues, and within the legal profession generally, rests on that. Given this performance, in public, on the record, if he continues as a judge, at any level, then, for the rest of his career, he will be challenged “for cause” and asked to recuse himself by any and every litigant and counsel appearing before him who is in any way associated with the Democratic Party or identified as “Liberal” or somehow “Left.” How could he not realize this? How could he go ahead as he did in the face of this consideration, given the importance he places on his judicial career and standing? His performance will be brought up, again and again, in public and on the record (sometimes including video), as long as he remains on the bench. Clarence Thomas’ 1991 performance pales into insignificance by comparison.
Whether Kavanaugh makes it onto the Supreme Court or returns to the DC Circuit, how will his colleagues on the bench respond to the demands from litigants and counsel that he recuse himself? Those demands will be replete with juicy quotations from Kavanaugh’s September 27 testimony, and stories about those “challenges for cause” will appear again and again in The New York Times and The Washington Post reporting on court proceedings, likely sometimes picked up by television news, sometimes with video clips from Kavanaugh’s September 27, 2018 performance. The authenticity of judicial commitment to the rule of law, the legitimacy of the federal judiciary, will be continuously on trial — in public, on the record.
Moreover, if Jeff Isaac is right and Kavanaugh’s performance is a product of becoming “unhinged” under pressure, resulting in out-of-control emotionalism, does that not make it entirely believable that in high school and college he might have become “unhinged” in a different way when highly intoxicated and caught up in belligerent frat-boy self-indulgence? If this is right then, surely, at some level, he knows this about himself (even if he has no memory whatever of particular incidents) – and his September 27 performance was a matter of extreme, desperate self-denial.
On the other hand, if Peter Dreier is right and Kavanaugh’s performance was not a matter of coming emotionally unglued, but rather a calculated decision to do what he had to do in order to maintain strong support from Donald Trump by throwing red meat to both Trump himself and to Trump’s base – is that not an even stronger indictment – showing that Kavanaugh’s claim to judicial temperament is and always has been a facade, behind which he has remained at heart an aggressive political partisan, a conservative culture-warrior ?
In any case, the fundamental issue for the Senate has never been Kavanaugh’s conduct in high school or college, but rather his honesty, forthrightness, reasonableness and integrity now in his sworn testimony before the Senate Judiciary Committee. Throughout his original testimony, Kavanaugh often seemed lacking in forthrightness as to what he had done while serving in the executive branch of the Bush administration. Put that together with the September 27 denouement, and any honest believer in the rules of professional conduct for lawyers and judges would have to say that Kavanaugh has disqualified himself out of his own mouth.
Bill Barnes has a Political Science PhD University of Michigan 1979, JD UC-Berkeley 1984, 33 years as plaintiff’s-side tort litigator; taught American government off-and-on, hither and yon, since 1968; 20 years (1986-2006) of research and writing on pre-election public opinion polling, election campaigns and “democratization” in Nicaragua and El Salvador. Recent writing focuses on U.S. state failure in the face of challenges posed by climate change.