In Defense of Brett Kavanaugh's Judicial Temperament

One of the more exasperating accusations against Brett Kavanaugh going around right now is that his impassioned defense before the Senate Judiciary Committee proves that he lacks a "judicial temperament."  This ludicrous charge gets the thing completely backwards.  In the irregular hearing that the Democrat committee members demanded last Thursday, it wasn't Kavanaugh's obligation to be even-handed and judicious, because he wasn't there as a judge – he was in the dock as a criminal defendant representing himself.  It was the Democratic senators who were acting as judges (God help us), at a hearing they said was needed to assess the "credibility" of an accuser and the accused.  In doing so, it was they who showed a complete lack of judicial temperament.

The hearing was not a criminal trial in the strict sense.  But neither was it a regular committee hearing for the purpose of providing advice and consent as to the fitness of a judicial nominee.  Those hearings had taken place already, and that process was over, or should have been.  Thursday's hearing, (which, as Andrew McCarthy argues correctly, Chairman Grassley should never have permitted), was held ostensibly for the sole purpose of evaluating Christina Blasey Ford's sexual assault allegations against Brett Kavanaugh.  While there was no fact-finder and no verdict, there was an accuser and an accused, testimony was taken and evidence reviewed (not Ford's evidence, as she didn't provide any), and it was without a doubt the last opportunity that the accused was going to have to defend himself against heinous charges carrying serious penalties.

Most people would call that a trial.  Not a fair trial by American standards, but a trial.

Kirsten Gillibrand dismissed Kavanaugh's entitlement to due process and a reasonable-doubt standard of proof, saying, "Those are the standards in criminal justice.  We are not having a trial; this is not a court.  He's not entitled to those because we are not actually seeking to convict him or put him in jail[.] ... This is not about whether or not he should be convicted; this is about whether or not he has the privilege to serve on the highest court in the land for a lifetime." 

In other words, it's not a criminal trial; it's just that we intend to hold him accountable for committing at least one, and probably countless more, criminal acts.  And once we find him guilty (officially), he faces no risk of punishment.  The worst that will happen to him is that he'll be denied a seat on the Supreme Court – and lose his reputation, see his family destroyed, face disbarment and certainly an effort to impeach him from the Circuit Court, be fired from his coaching positions, fired from Harvard Law School, and called a rapist by the left half of the country for the rest of his life.  As for the standard of proof?  We don't need one!  It's perfectly fitting if the senators meant to sit in judgment of Kavanaugh declare days in advance of the hearing that they've already chosen to believe the accuser based on what they've read in the paper.  Let's call it the preponderance of the empathy standard.

When the ABA evaluates judicial temperament, it "considers the prospective nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law."  Is that what we saw in Kavanaugh's Democrat interrogators on Thursday?  Open-mindedness, freedom from bias, and commitment to equal justice under the law?

When people fly off the handle, as Kavanaugh is said to have done last Thursday, they don't lay out extended, detailed, logical accounts of their positions organized into five numbered sections, as I watched Kavanaugh do on Thursday.  (It's judges who write that way.)  No one would criticize a zealous defense attorney for angrily pounding the table while denouncing the flimsy case against his client.  Kavanaugh, without benefit of defense counsel, had to make his own closing argument, into the faces of ten Democrat senators who'd all made up their minds 12 weeks ago to vote against him – and who had spent the last three weeks proving they couldn't care less about what's right or wrong as long as it stops his confirmation.  Looked at this way, his self-control was extraordinary.  

With a sterling judicial record over twelve years, Judge Kavanaugh has already proved that his temperament is just fine

T.R. Clancy looks at the world from Dearborn, Michigan.  You can email him at

Image: Soren Wolf via Flickr.

If you experience technical problems, please write to