The Corner

Law & the Courts

A Modest Compromise on Judge Kavanaugh’s ‘Temperament’

At the Balkinization blog, Jason Mazzone makes the key point about all this “temperament!” claptrap:

One obvious problem with the present letter is that when, on September 27, Kavanaugh was responding to allegations of serious (and criminal) acts, he himself wasn’t a judge deciding a case. So why in that capacity would we expect him to act like a judge? An accused whose position is that he is completely innocent should not be impartial. He should shout his innocence from the rooftops. And if he believes there is a grave injustice afoot, he should bring it to light not pretend to be perfectly happy with how things are playing out and whatever conclusion is reached. That seems to me exactly what out legal system permits and expects.

This doesn’t somehow mean, though, that when the judge returns to the bench, as judge, to decide cases before him, he will continue to act as though he himself is there as the (wrongly) accused. The context is entirely different. Thus, while the letter makes much of the federal recusal statutes, they are irrelevant. The recusal statutes don’t apply to a witness before the judiciary committee, and in court they only apply on a case-by-case basis. Contrary to the letter’s suggestions, they don’t tell us who and who cannot be confirmed to the bench. Put differently, why wouldn’t Kavanaugh’s long service as a sitting judge be the place to look to know whether he is impartial, judicious, and so on? The letter makes no mention of whether the signatories have ever themselves reviewed Kavanaugh’s judicial record or appeared before him—much less why they believe what we know about Kavanaugh as a judge  can be breezily disregarded.

This is obviously correct. And so, in the spirit of open-mindedness, I propose a compromise: Given what we now know about Judge Kavanaugh’s temperament, the Senate should vote Yes on the question of whether Judge Kavanaugh should be elevated to the role of Supreme Court Justice, and No on the question of whether Judge Kavanaugh should be subject to endless uncorroborated smears, coupled with the routine presumption of guilt.

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