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Judge Kavanaugh’s Judicial Temperament

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.

Reader Discussion

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on October 04, 2018 at 08:06:31 am

"Judge Kavanaugh’s behavior before the committee is no reason to vote against his confirmation."

And "NO reason" is exactly what the Democrat Party offers.
"Reason, we don't need no stinkin' reason." - Chuck Schumer imitating Alfonso Bedoya

https://www.youtube.com/watch?v=VqomZQMZQCQ

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gabe
on October 04, 2018 at 09:45:05 am

Rappaport:

White acknowledged that an unbiased decisionmaking was a requirement of due process. [Writing for the Court, White said,] "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 [perceives]... has been the target of personal abuse or criticism from the party before him."

* * *

Just listen to the Supreme Court.

Kavanaugh:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

* * *

As we all know, in the political system in the early 2000s, what goes around comes around!''

I agree with Rappaport: We SHOULD listen to the Supreme Court.

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nobody.really
on October 04, 2018 at 12:33:43 pm

Even a skilled lawyer who represents himself is at a disadvantage…. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, formulating … arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments…. The adage that "a lawyer who represents himself has a fool for a client" is the product of years of experience….

Kay v. Ehrler, 499 U.S. 432, 437-8 (1991).

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nobody.really
on October 04, 2018 at 12:40:12 pm

This is not A Few Good Men and Kavanaugh's self-defense is not an admission that he ordered the Code Red.

But it's probably fun to pretend it is.

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QET
on October 04, 2018 at 13:10:28 pm

Yes, a shrieking bully who vows revenge on the Democratic Party--oh, be honest, that *why* you want him on there. After all, he so charmingly dissed all the female Senators--all the more reason to have him on the SCOTUS, those uppity wimmens need to be kept in their place.

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excessivelyperky
on October 04, 2018 at 13:15:48 pm

Easy for nobody to say "...listen to the Court" as NO Leftist nominee has ever been subjected to situations such as this which DEMAND an impassioned response; thus, according to the nobody's of the world, no Leftist Jurist is *biased* nor do they lack judicial temperament.

And as I have asserted for weeks now, the secondary aim of the UpChuck Schumers of the world has been to so discredit this man that a) the GOP would not dare place him on the court and b) should they be so brazen to do so, we have ample evidence of his bias and lack of "proper" (read: leftist) temperament.

Horsepuckey flows readily these days in both the chambers of congress and the digital halls of LLB.

But i could be wrong. After all, did not our modern day Spartacus pronounce that this jurist was evil and Spartacus IS known for his even temperament, isn't he?

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gabe
on October 04, 2018 at 13:28:08 pm

"After all, he so charmingly dissed all the female Senators"

Gee, I missed that one! Then again, I suppose that to your mind, the act of questioning ONE *woeman* is considered a declaration of war against ALL woe-men!

We can;t have that now can we? Imagine - to question the political motives of the "better" gender? Sorry, I forgot, the genders (if they even exist???) are supposed to be equal. I take that to mean that women and men will lie, prevaricate, obfuscate, dissemble, etc on a fairly equal basis.

Now I come to find out that one must never assume that a woman is being less than truthful. Miss Perky tells us so

Incidentally, I hope that you are correct and that Kavanaugh does exact revenge on the Democrat party. It is long past due and well deserved BUT as he does not appear to me to be a man harboring age old grudges and envy as do so many Leftists, I suspect that he will continue to review and resolve cases in the same fair and "dutiful" that he done for so many years.

After all, he makes no claim to being a "Wise Latina", as have some others.

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Guttenburgs Press and Brewery
on October 04, 2018 at 14:16:06 pm

[T]he 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.

First, google "the talk" and "black." There, you will learn that young black men are regularly informed that they must endure all manner of accusations submissively and without lashing out ON PENALTY OF INSTANT DEATH.

Then google "white privilege." Apparently it's another topic unfamiliar to many around here, yet on display for all to see.

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nobody.really
on October 04, 2018 at 15:35:03 pm

Why everything counts: you always meet people a second time (be yourself with everyone you meet - but be your best self, for you can be sure that before you have lived out your life, you are going to meet again). So, am I old fashioned (traditionalist, perhaps) to think that the Institutional Integrity of the Court is more important than a partisan win? That is, is a Life-Time Supreme Court appointment truly justice for a questioned nominee? "Man is effective in the world not only through what he does, but above all through what he is."

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Anthony
on October 04, 2018 at 16:04:53 pm

Only nobody could possibly link the "mythical" TALK, a la Oprah and "white privilege", perhaps that too is on a par with "a la Oprah".

The "data-driven" nobody reveals himself to be just as subject to faddish emotivism (as another blogger posted today) as he deems the rest of us to be.

And no, nobody. this mythical, indeed *mystical* white privilege is something with which we are all too painfully familiar; it is not unfamiliarity which defines our stance / posture on the matter but rather revulsion at the underlying and ill (yet clearly) defined racism contained within the accusation.

And just to remind you, White Kids, from neighborhoods such as mine, also received a "Talk" - the difference is this: We understood it to be proper to not defy the Police AND we did not have an Oprah Winfrey to tout the psychological horrors that we surely must have endured.

Stifle it, Edith!!!
But again allow me to compliment you on your *clever* wordsmithery!!!

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gabe
on October 04, 2018 at 16:26:35 pm

Anybody who claims that Kavanaugh lacks judicial temperament should prove their point by naming those of his 300 opinions on the second most important court in the country that evidence this alleged lack of judicial temperament.

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Rebes
on October 05, 2018 at 08:53:38 am

As a progressive, I still am confused about the end game for Republicans — what is it exactly they want for America? Maybe i’m wrong but at the bottom it seems racist and mysoginistic and at the top (donor class) it seems purely driven by a desire to further concentration of wealth through market forces. What I don’t ever hear discussed is mutual aid, empathy or respect.

Kavanaugh will get on the Court and you will have your conservative majority for a generation.

What then? I am not trying to pick a fight, just want to understand— what now? What does your America look like?

And... Tell me why my life will be better now.

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Thomas
on October 05, 2018 at 09:19:56 am

I don't recall anyone alleging that Kavanaugh's law clerks lack judicial temperament.

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nobody.really
on October 05, 2018 at 18:04:10 pm

Or that Ruth Bader Ginsburg's lack legal skills? - Ha!!!!

Now get off the Democrat Party Line for once, Edith!

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gabe
on October 05, 2018 at 18:16:05 pm

"Maybe i’m wrong but at the bottom it seems racist and mysoginistic..."
Gee, like we haven't heard that line before. question: when all white folks are considered "privileged" or worse "racist", would one be mistaken in assuming that such sentiments are themselves - RACIST?

Question: When all males are considered to be predators and subsequently denied due process rights, abusive and possessed of male privilege would one be mistaken to argue that the Democrat party is MISANDRISTIC?

"...and at the top (donor class)"

Have you checked on electoral demographics in the past several elections? Question: When ALL (but one) of the RICHEST counties in America vote DEMOCRAT, when WALL STREET gave a majority of its political monies to DEMOCRATS, would it be inappropriate to say that the DONOR CLASS IS BOTH QUITE FOND OF AND ATTACHED TO THE DEMOCRAT PARTY?

Tell me - WHAT DOES YOUR AMERICA LOOK LIKE other than a clash between the imaginary villains you MUST conjure up in order to justify your emotion and envy driven rhetoric and convince yourself of your higher morality.

Give it a break. This America needs a respite from your fantasies!

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gabe
on October 05, 2018 at 18:30:00 pm

Oh and here is something for those who may doubt that the Democrat Party is deploying misandry as a weapon to - well, what else - to secure votes.

https://amgreatness.com/2018/10/05/war-on-men-is-a-long-term-plan-for-democrat-victory/

Now back to my misogynistic habits - watching Major League Bseball - after all, there are no women in baseball - or was that supposed to be "There is no crying in baseball"?

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gabe
on October 09, 2018 at 10:29:11 am

[…] counterarguments. And here the letter was singularly unscholarly. As my colleague Mike Rappaport has noted, the Supreme Court itself has suggested the difficulties of inferring bias from a context in which […]

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Image of The Professors’ Letter Against Kavanaugh Undermines the Legal Academy
The Professors’ Letter Against Kavanaugh Undermines the Legal Academy

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