Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.
The newest attack on Judge Brett Kavanaugh’s nomination to the Supreme Court is that he behaved with a lack of judicial temperament when questioned by the Senate about the allegations from Dr. Christine Blasey Ford.
Of course, the obvious counter is that Kavanaugh was entitled to be upset – to be unjudicial – in response to a personal attack which he believed was based a lie or mistake. And he was outraged by being called “evil” and other names by Democratic Senators. In fact, one might wonder whether a person who did not fight back in the face of such attacks would actually be qualified for the Court. How could such a person decide cases in the face of criticisms by other branches and the public if they were not willing to defend themselves from a slander?
More fundamentally, Judge Kavanaugh was not acting as a judge at the Senate hearing. He was more like a party at a trial who was representing himself. His strongly worded actions were designed to defend himself, not to behave as a judicial or neutral party.
Support for Kavanaugh’s behavior actually comes from the Supreme Court itself. In the case of Withrow v. Larkin, Justice White examined the question of whether an administrative agency could adjudicate when it had also investigated the claim at a prior hearing. White acknowledged that an unbiased decisionmaking was a requirement of due process. But White, who arguably was the strongest opponent of the separation of powers in Supreme Court history, wrote that the adjudicators were not biased by also having been involved at the investigation stage. In my view, not a good moment for the Supreme Court.
But even Justice White acknowledged that decisionmaking could be biased. He noted that
various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.
This, of course, is very similar to the situation that Judge Kavanaugh faced when members of the Committee had personally abused or criticized him. The Supreme Court has recognized that an official cannot be expected to be disinterested in this situation and must be presumed biased.
The claim that Judge Kavanaugh behaved in an unjudicial manner may be correct. He was not unbiased during the hearing. But that is not an argument that he would behave inappropriately as a judge. Even Constitutional Law recognizes that government officials cannot be expected to be unbiased in the face of such criticism.
Thus, even if Judge Kavanaugh were acting as a judge during the Senate hearing, the Supreme Court would recognize that he could not be expected to be unbiased. Of course, he was not a judge but the defendant, defending himself against what he regarded as a slander. But even if he were a judge, his bias would have to be presumed.
Judge Kavanaugh’s behavior before the committee is no reason to vote against his confirmation. Don’t rely on me. Just listen to the Supreme Court.