Sep 17

Sep 17 Kavanaugh's Judicial Temperment in Question by Daniel Tagliarina

So often with judicial nominees Senators, and other commentators, fall back on the notion of “judicial temperament” when trying to capture the more intangible qualities of being a judge or justice. While I have questioned how much this idea actually matters, in light of recent developments, it is worth examining a bit more closely. With largely no meaningful answers from Judge Brett Kavanaugh during his confirmation hearings, and without a threat of a Senate filibuster over his nomination, judicial temperament might be all we have left for judging this nominee.

The American Bar Association explains judicial temperament as involving, “the prospective nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.” Judicial temperament involves a balance of objectivity and concern for the effects that the law has.

We have seen judicial temperament play out in confirmation hearings in a variety of ways over the last few decades. Chief Justice Roberts, at his confirmation hearing referred to the role of a justice as calling balls and strikes. Kavanaugh himself referred to role of judging as being an umpire. President Obama faced criticism for saying that justices should have empathy. Justice Sotomayor has been attacked for bringing her views into cases, or for indicating that understanding the humanity of those who stand before the law is important to good judging. This stands in opposition to the idea of judges and justices as umpires. However, both concepts capture different aspects of judicial temperament. Kavanaugh now is facing his own questions over his judicial temperament.

The Non-Handshake

While Kavanaugh’s answers during his confirmation hearing were not revealing, I argue that one moment, in particular, was incredibly telling.

As Kavanaugh was getting up for a lunch break during the first day of his hearing, he was approached for a handshake. The man, Fred Guttenberg, spoke to Kavanaugh and extended his hand. Kavanaugh locks eyes, pauses, buttons his coat, and briskly turns and walks away.

As a moment of human interaction, the event is bizarre. To look at still photos, or even to watch the video, the event appears strange on its face. Accounts of what happened, and why, vary. Guttenberg is the father of Jaime Guttenberg, one of the 17 students shot and killed at Marjory Stoneman Douglas High School in Parkland, Florida. Since his daughter was killed, Fred Guttenberg has become an advocate for gun control and has criticized the National Rifle Association’s support of Kavanaugh’s confirmation.

The White House, through the Deputy Press Secretary, has claimed that Guttenberg was a stranger that approached Kavanaugh, and that security removed Kavanaugh from the scene. Guttenberg challenges this recounting. Some angles of the video show Kavanaugh walking away. Others seem to show a staffer leading Kavanaugh away. What every angle shows is no words were uttered by Kavanaugh. No attempt was made to shake Guttenberg’s hand.

We cannot possibly know what was going through Kavanaugh’s mind when this exchange happened. However, I argue this was a telling moment from the entire confirmation hearing. When confronted with another human being, one who suffered the loss of his daughter who was gunned down while attending school, Kavanaugh froze, before refusing to shake this man’s hand, or even say a word to him. Rather than engage in a genuine moment of human connection with a still-grieving father—despite how much we heard about “Coach K” or Kavanaugh the “carpool dad”—Kavanaugh simply left.

When confronted with an embodiment of the choices that judges and politicians make, Kavanaugh turned his back. Rather than seem too political, or perhaps “subjective,” by acknowledging shared humanity, Kavanaugh did nothing. This hardly seems like “compassion, … open-mindedness, courtesy, patience, … and commitment to equal justice under the law.” However, this is not the largest issue regarding Kavanaugh’s temperament.

Allegations of Sexual Abuse and Sexual Harassment

As a former clerk for (the now former) 9th Circuit Court of Appeals Judge Alex Kozinski, questions of sexual harassment came up during the confirmation hearings. Kavanaugh denied knowing about any of Kozinski’s inappropriate behavior, despite the behavior being fairly open and well known. Kavanaugh also said he was unaware of various other allegations against Kozinski, including the targeted harassment of other law clerks. More to the point, Kavanaugh also testified that he had never sexually assaulted or harassed anyone.

While the points about Kozinski are questionable, the question about sexual harassment and assault is more to dire. Kavanaugh has now been accused of committing sexual assault when he was attending an elite all boys prep high school in the greater D.C. area. While first coming up as an anonymous tip, the woman in question has since identified herself. Accusations are not proof, but if we have learned anything from the Me Too movement and recent events, it is that we should listen to accusers and take their stories seriously. As it would seem, there is additional evidence to corroborate significant portions of the story.

Without belaboring the point, or recounting the harrowing details, the situation must be taken seriously. The accusations should give every Senator pause. In light of the efforts to cover up much of Kavanaugh’s record in an effort to steamroll the nomination through the Senate, there needs to be a bipartisan effort to investigate these claims further. Senators Flake (R-AZ) and Corker (R-TN) have already joined Democrats in calling for a delay on the vote to further investigate these claims.

For his part, Kavanaugh has denied the allegations. He has admitted that he does not remember the incident, and the account of the assault suggests he was highly intoxicated at the time. Kavanaugh has largely stayed quiet, even as surrogates have attacked the woman bringing the claim and have suggested that it was merely “youthful indiscretions.”

A judge, and potential justice, that is not concerned about righting past wrongs and addressing claims, does not have the judicial temperament befitting a Supreme Court justice. A judge that will sit back while others verbally abuse a potential victim, does not have the judicial temperament befitting a Supreme Court justice. A judge who will not shake the hand of a grieving father, or even say a word to him, is not one who displays the judicial temperament—“compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law”—necessary to be given a life appointment to the highest court in the United States.

This is not to say that these two events are on par. Rather, the refused handshake seems like the lack of consideration for another human being that might have, at once, led someone to force his hand over another person’s mouth to muffle her screams while he forcibly fondled her against her will. If this is about character, the accusation, his response to it, as well as the actions at his confirmation hearing all directly call into question Kavanaugh’s judicial temperament, and thus his appropriateness for serving on the Supreme Court.

Daniel Tagliarina is Assistant Professor of Government and Pre-Law Advisor at Utica College.