Republicans rooting for Judge Brett M. Kavanaugh to be confirmed are struggling to justify his emotionally wrought, belligerent testimony last Thursday. Some indignantly ask: “Wouldn’t you be upset?” (That’s a variation on Kavanaugh’s “Have you?” retort to Sen. Amy Klobuchar when she asked about blacking out.) Some go so far as to say he had to conduct himself this way so his children would know how to fight injustice (!).
Where to begin?
Judges aren’t like everyone else. They take a special oath and are bound by rules that apply just to judges. The first canon of the Code of Conduct for federal judges admonishes them:
Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.
A judge is obligated to recuse himself from matters in which he harbors “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding” (Canon 3). If you’re a Democratic senator, someone associated with Hillary Clinton or an outspoken advocate of progressive causes, or a progressive cause (or defense) is at issue in a case, you’d be foolish to forget Kavanaugh’s threat (“What goes around, comes around“). The country would have every reason to doubt than an adverse 5-4 ruling against a Democratic/progressive group was arrived at by a fair application of the law and facts.
There is a specific rule to deter judges from becoming enmeshed in politics, a recognition that of all the forms of bias, political partisanship is especially problematic. Canon 5 mandates that a judge should not “(1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or (3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate. … A judge should not engage in any other political activity.” We all have a First Amendment right to join campaigns, root for candidates and champion political causes. Judges do not, because those activities are inconsistent with their role.
To quote Kavanaugh on the subject, from his original opening statement in early September, “The Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms. If confirmed to the court, I would be part of a Team of Nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player on the Team of Nine.”
His critics do not expect Kavanaugh, despite his religious education, to turn the other cheek and absorb attacks without response. However, he could have shown emotion without claiming he was the victim of a partisan plot, without nasty retorts to Democratic senators, without threats and without calling Democrats’ conduct an “embarrassment.” One could forgive a few tears or even generalized anger about sensationalist charges but not this: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” He’s not on a Team of Nine; he’s on the Team of Trump when he talks that way.
One could even have countenanced a spontaneous outburst, short-lived and followed by a composed performance. However, Kavanaugh actually wrote out his rant, presumably had time to edit it and maybe even practice. Moreover, he remained defiant and rude throughout the hearing. At a time when the right and left are at each other’s throats, the last thing we need is a Supreme Court justice who, rather than wearing a “Team of Nine” jersey, has “Democrats did me wrong” emblazoned on his robes.
You don’t have to be a judge to know that fighting injustice with falsehoods and hysterical allegations cedes the high ground to those whom you accuse of being unjust. If you want to convey life lessons to your kids, you could do a lot worse than pointing to Christine Blasey Ford, not to mention heroes of the American civil rights movement or human rights dissidents around the world.
Furthermore, if you really perceive yourself as a victim of half the country’s malice, you shouldn’t offer yourself up as a fair, impartial umpire to sit on the highest court. It’s time for Kavanaugh to take responsibility for his conduct, at the very least for his conduct in the hearing. A job applicant who behaved as he did would not only have been rejected; he would have been tossed out the moment he aggressively challenged a questioner. Kavanaugh should at least be held to the standard of an entry-level job applicant.