The Corner

Law & the Courts

In Defense of Kavanaugh’s ‘Anger’

Brett Kavanaugh testifies before the Senate Judiciary Committee , September 27, 2018. (Pool via Reuters)

One of the most common lines of attack against Brett Kavanaugh’s remarkable opening statement today has been, “Gosh, he was so angry! That’s not suitable for a judge!”

In most cases, this has been a purely political cry, prompted by partisan irritation that Kavanaugh has given himself a fighting chance of being confirmed. Had he been docile, as his would-be assassins were evidently expecting him to be, he’d have been dead in the water by 3pm — and, most likely, have been swiftly accused of the opposite sin: “He’s so calm! That’s a clear indicator of guilt.” By vehemently defending himself, he has kept himself afloat — for now. Naturally, that has annoyed people who think that the ordained role for conservatives is to gracefully concede, and they’re showing it by huffing and puffing.

Still, the idea has spread around the Internet, and it therefore deserves a little pushback, containing as it does a trio of extremely dangerous assumptions.

The first assumption is that a judge must act like a judge even when he’s involved personally in a case. “He’s supposed to be neutral!” came the cries this afternoon. “He’s supposed to have a cool temperament!” “He’s supposed to be an umpire.” Now, when a judge is acting as a mediator between two competing parties, this is, of course true. But what about when he’s not? What about when, as was the case today, he’s not the judge but the accused? In such a case it is entirely appropriate for a judge to defend himself, providing that he recuses himself if there is any conflict of interest. Today, Kavanaugh was the accused. And, today, he simply could not defend himself without making specific criticisms about how he had been treated; about who had said what, and when; and, yes, about how certain people in the room with him had behaved. To argue “he should have refrained from specifics” is to say, effectively, “he shouldn’t have competently defended himself.”

The second assumption is — once again — that “an accusation should be enough.” In this instance, that case wasn’t made explicitly. But it was certainly made implicitly. If the argument is “well, yes, Kavanaugh was within his rights to defend his name robustly, but the act of doing so meant he can’t be a judge in the future,” then the argument is really “the accusation should kill him.” All told, Kavanaugh had only one option today, and that was to do what he did. It would be utterly bizarre if our standard was, “if someone accuses you, and the minority party helps, and you defend yourself from both, you have therefore rendered yourself unsuitable for the position that the accusation is intended to deny you.”

The third assumption is that the mere fact of Kavanaugh’s being furious somehow reflects badly on him. One word I saw a lot was “entitled.” Another was “belligerent.” And, of course, there were the deeply irresponsible people who said that his anger made them think that he was capable of sexual assault. As has been common throughout this process, those who are making this assumption are suffering from a chronic lack of imagination. More specifically, they are demonstrating that they are incapable of even entertaining the possibility that Kavanaugh might be innocent — or that he might think he is innocent. Put simply, if Kavanaugh he believes he is innocent — and he does — there is no other proper way for him to act. What he did today is what I would have done if someone accused me of being a gang rapist and a lecher and a teenage sexual deviant. After ten days of listening to this stuff — and watching in horror as the spaghetti was thrown at the wall — I, too, would have been done. Having slowly realized that I would never regain my reputation in full, I would have been livid, devastated, furious — and so, frankly, would anyone else in that position. Sure, if I were guilty I’d probably have crept away to lick my wounds. But if I were not, I’d have put on my spurs and channeled Agincourt. To wonder why a man in Kavanaugh’s position is angry is to betray either a disastrous lack of empathy or a telling lack of humanity. Of course he’s angry. As opposed to what?

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