The Content of One’s Character

During ten years’ service as an administrative law judge, I was surprised how often people charged with misconduct behaved in court as if they were actually trying to prove the charges against them. An employee charged with chronic lateness would show up late for trial. An employee charged with disrespect of a supervisor or discourtesy toward a member of the public would mouth off to everyone in the courtroom. I had one defendant, charged with falsifying official documents, who altered a trial exhibit during the trial.

In a legal proceeding, behavior during the proceeding can’t be used as evidence on  charges of misconduct alleged to have occurred before the proceeding. But still, I came to understand that people have patterns of behavior that they’re unable to break, at least for very long. We seem to be able to suppress character traits for only limited periods of time; we eventually revert to type.

The central subject of the Senate Judiciary Committee hearing yesterday was an allegation that Brett Kavanaugh had sexually assaulted Christine Ford. But in the background were suggestions that Kavanaugh has a belligerent streak, suggestions that he is liable to lose control, and suggestions that Kavanaugh has led a life of privilege that he has used to his own advantage, and to the disadvantage of others.

Had Judge Kavanaugh for some bizarre reason come to me for coaching, I’d have suggested that his best approach would be soft-spokenness and deference. You won’t be surprised to learn that Kavanaugh didn’t ask me for advice, and you’re already aware that he didn’t opt for the soft-spoken-and-deferential approach.

Kavanaugh’s opening statement consisted of yelling intemperately at the committee for a full half-hour. If you take the suggestion of Nina Totenberg and re-watch the hearing with the volume off – allowing you to focus on facial expressions and gestures – you’ll see a sitting federal appeals judge verging repeatedly on loss of control. His handling of questioning showed a strong sense of entitlement: if he didn’t have a ready sound-bite answer to a question, he responded with blusterous indignation and inappropriate questioning of the questioner. He demanded to know the drinking habits of senators who had the temerity to ask him about his own. He simply refused to answer some questions, staring in silence after the questions were asked. He filibustered simple yes-or-no questions with long, irrelevant and repetitive recitations of his academic record. In general, he treated committee members, or at least Democratic committee members, with a level of hostility that can only be characterized as belligerent. His treatment of Senator Amy Klobuchar was so disrespectful that he came back with an apology after the next recess.

And he seemed never to tire of telling us how much he likes beer.

Kavanaugh complained loudly and bitterly about the excessive partisanship of the confirmation process, and of course he’s right. Supreme Court confirmations have long since ceased to be about getting great justices. The president selects nominees for their likelihood to side with the president’s party on important issues, and the Senate divides almost entirely between members of the president’s party and members of the opposition party in supporting and opposing the nomination. Confirmation hearings no longer serve as inquiries into a nominee’s qualifications, because senators of the president’s party pre-determine that the nominee has them and senators of the opposition party pre-determine that the nominee lacks them.

Both parties certainly share blame for this state of affairs. Arguing over which party bears more blame is like arguing over whether Israel or the Palestinian Authority bears more blame for the lack of a resolution of their conflict: both sides bear at least some blame, neither side will ever be convinced that it bears any blame, and the mere holding of the argument only deepens the animosity that underlies the conflict.

Still, it is fair to observe how rich it is to hear Brett Kavanaugh complain that he is being personally victimized by excessive partisanship, especially because Kavanaugh himself has contributed not inconsiderably over the course of his career to the ratcheting up of bitterly personal partisanship.

For instance, as a member of Independent Counsel Kenneth Starr’s team, Kavanaugh gave serious investigative consideration to loony-bin quality conspiracy theories that Bill Clinton’s administration murdered Vincent Foster, who had already been found by four different investigations, and was ultimately found by the Starr investigation, to have committed suicide. Kavanaugh may believe he has been falsely accused of sexual assault, but he had no problem legitimizing wing-nut accusations of a murder conspiracy against the sitting president of the United States.

If any of the allegations against Kavanaugh is true, it is well within the fair bounds of the confirmation process to consider the allegation and to hold it against him. And, as the Anita Hill precedent would tell us even if ordinary good sense didn’t, determining whether the allegations are true is exactly what the investigative side of the confirmation process is supposed to be about.

A sober-minded judge knows well that many allegations come into court unsubstantiated and leave with jury verdicts. An allegation that starts out uncorroborated does not necessarily end up that way, and it’s the process – in court, the litigation process; in this case, the confirmation process – that is supposed to determine whether the allegation is true or false. But Kavanaugh condemned in harshly partisan terms the mere consideration of the allegations.

Ultimately, this is what bothers me most about Judge Kavanaugh’s nomination. The partisan hostility he displayed yesterday was so extreme that a reasonable person would doubt Kavanaugh’s ability to be impartial in matters of partisan political importance that come before the Court. Even if Kavanaugh never touched any woman without consent, his belligerent partisanship disqualifies him from judicial position.