Published 7:42 PM EDT Sep 28, 2018
The Senate Judiciary Committee voted along partisan lines on Friday afternoon to recommend the confirmation of Judge Brett Kavanaugh as associate justice of the U.S. Supreme Court at the same time Republican Arizona Sen. Jeff Flake urged a one-week delay in a final Senate vote so that the FBI can investigate sexual misconduct allegations against the nominee.
Plans for a potential investigation are a step in the right direction, but it may be too late for that. The Senate is moving forward despite a petulant partisan outburst by Kavanaugh in his testimony Thursday that ought to be disqualifying.
Our language abounds in similes and phrases that attest to our belief that those who preside over out courts be people of measured emotions: sober as a judge, judicial restraint, judicial temperament. These phrases evoke even-handedness and ruling on cases based on their legal merits.Likewise, we acknowledge the moral indignation of people who feel they have been wronged. But the intemperate tirade Kavanaugh launched against the Democratic senators on the Judiciary Committee, with its rancorous tone and suggestions of hostile conspiracies, shows that he is temperamentally unfit to serve on the Supreme Court.
This what he said: “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 has been unfairly stoked about my judicial records. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups”. By comparison, Clarence Thomas’s rage in 1991 against a “high-tech lynching” was a masterpiece of subtlety and moderation.
The mask of an unhinged justice
Kavanaugh was not simply angry; he was unhinged. As unfairly as he thought he had been treated, as disappointed as he was at the unwillingness of senators to accept his choir-boy image of himself or fail to be awed by his sterling prep-school Ivy League pedigree, he might have spared us and himself an unseemly display of partisan venom wholly unbecoming a candidate for a job that requires at least the appearance of impartiality. That mask was stripped from Brett Kavanaugh. He revealed that he is capable of unrestrained wrath, a vengeful spirit, and a disqualifying inability to keep disagreement within acceptable bounds.
You need not be persuaded by the testimony of Christine Blasey Ford to be appalled by Kavanaugh’s rancor. I find it conceivable that she mistook Judge Kavanaugh for someone else. But you don’t have to buy into her account to credit her with the quiet dignity with which she testified about what was surely the worst day of her young life. Kavanaugh, by contrast, was all unbounded anger. He had transformed himself from the plaster saint that was on display in his earlier public appearances into a dark avenging angel. This troubling episode was noted by Republican strategist Rich Galen, who wrote: “Judge Kavanaugh did not sound like, look like, or act like a Justice of the Supreme Court.”
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I would not want my constitutional rights adjudicated by the Brett Kavanaugh who was on display on Thursday. He might judge my cause not by the measured standards of impartial jurisprudence, but my ideological incompatibility with his own set of political beliefs. To be sure, he would be only one of nine, but his confirmation would not simply move the court in a more conservative direction — a turn which everyone would expect from any judge nominated by President Trump — it would replace Justice Anthony Kennedy with a partisan pugilist whose resentments toward 10 Democratic senators would contaminate his legal opinions.
Was Kavanaugh momentarily possessed by emotions entirely alien to his basic nature? I doubt it. I think something came to the surface that warns us he might not be able to play it straight — and that he’s got an agenda that is incompatible with what we have every right to expect from someone who has our constitutional rights in his hands.
Ross K. Baker is a distinguished professor of political science at Rutgers University and a member of USA TODAY's Board of Contributors. Follow him on Twitter: @Rosbake1.