The anger and partisanship Kavanaugh displayed were noted instantly, and eventually they alienated swing-vote GOP Sen. Jeff Flake (Ariz.), who said flatly that Kavanaugh’s testimony was “sharp and partisan” and added," We can’t have that on the court."
Kavanaugh’s op-ed represents tacit agreement on that point. He assures he’s an “independent” judge — despite having attacked Democrats as orchestrating a campaign against him on behalf of the Clintons — and concedes he was too “emotional.” He also walks right up to the edge of apologizing for his tone and the content of what he said:
I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed.
A couple things stand out. The first is, “I said a few things I should not have said.” Kavanaugh importantly doesn’t actually enunciate these things or express regret for anything in particular, apart from his general emotion. He apologized in real time for asking Sen. Amy Klobuchar (D-Minn.) whether she ever blacked out (Klobuchar just moments prior had discussed her father’s alcoholism) and he had terse exchanges with others, including Sen. Sheldon Whitehouse (D-R.I.), but otherwise he hasn’t detailed anything that he feels was incorrect or injudicious.
Questions have also been raised about whether Kavanaugh said things that were untrue in his testimony, including about his high school experiences and his drinking. Most of these things were apparently not probed in detail in the FBI’s investigation during the past week. His op-ed does nothing to clarify whether he said something incorrect or simply impolitic.
The second thing that stands out is Kavanaugh’s promise that he has never before been so “emotional” and that he promises to be “even-keeled,” as he claims to have always been during his legal career.
The former is both a promise that the man we saw last week was not Kavanaugh’s true character and a suggestion that claims about Kavanaugh’s tendency to become belligerent while drinking are overblown. Accounts have described him as being plenty emotional in the past when drinking.
The latter suggests he will not bring any of this to his service on the Supreme Court. That’s got to be Flake’s big question — and the question of many judicial types, including liberal former justice John Paul Stevens, who on Thursday suggested Kavanaugh was unfit for the court. Kavanaugh is saying, plainly, that he will not make decisions as the man we saw in his most high-profile public appearance.
It is very wrong for a Supreme Court nominee to write an oped.— Benjamin Wittes (@benjaminwittes) October 5, 2018
It is very wrong for a retired justice to comment on a Supreme Court nomination.
The op-ed seems to be an effort to put to rest any lingering reservations that someone like Flake might have, and to close the loop on his confirmation. It’s also recognition that even a successful confirmation vote won’t immediately erase questions about Kavanaugh’s fitness for the nation’s highest court.
But mostly, it’s an unmistakable admission that he got it wrong.