Finding fault with his character and temperament, but never their own.
To the political witch hunt that seemed as though it might ruin his and his family’s lives, and which certainly caused the Kavanaugh family to experience profound suffering, Brett Kavanaugh reacted as anyone would: with natural and justified anger. Of course, at first Kavanaugh was rather cool-headed, but by the September 27 Supreme Court confirmation hearing, the cheap character assassination had become a lot worse, and a fiery Kavanaugh reflected the difference.
On Twitter, Senator Dianne Feinstein utilized Kavanaugh’s anger to effect her characteristic pseudo-moral manipulation:
The Republican strategy is no longer attack the victim, it is ignore the victim. The entire country is watching how we handle these serious allegations. The Senate has failed a test on how we treat women, especially for women who are survivors of sexual assault.
Judge Kavanaugh did not reflect an impartial temperament or the fairness and even-handedness one would see in a judge. He was aggressive and belligerent. He should not be rewarded with a lifetime Supreme Court seat.
I’ve never seen someone who wants to be elevated to the highest court in our country behave in the manner that Judge Kavanaugh did yesterday. The person who testified yesterday and demonstrated a balanced temperament was Dr. Ford.
Feinstein also invited leading #MeToo activist Alyssa Milano to be her guest at the hearing. With a front row seat, Milano would be sure to get the Twitter mob and “the resistance” worked up into a frenzy. Milano was seated just behind Kavanaugh during his testimony, so America saw an angry-looking Milano throughout it. Such optics are no accident.
As if on cue, mindless journalists and others, in their moral smugness, have been waxing indignant about “Kavanaugh’s temperament,” as if it made him “unfit to be a Supreme Court justice.” As with the allegation that he once threw ice at someone in a bar, Kavanaugh’s temperament is being used as evidence that he would be as out of control on the bench as he was during the hearing.
Amid the furor, Senator Ben Sasse announced that, in light of the edifying #MeToo movement, he had actually opposed Kavanaugh’s nomination all along. A woman justice would have been better for gender equality’s sake, and certainly better for appearances. Alas, women’s hysteria is contagious. Many feminized men suffer from it, quite unknowingly. So deep is their delusion that they take submission for virtue.
In her article “Kavanaugh is the Face of American Male Rage,” feminist Jessica Valenti lamented: “Even as women calmly and expertly explain the ways in which men have hurt us, our pain is immediately drowned out and glossed over by men’s belief that they should not have to answer to us, of all people.”
Calmly and expertly! Yes, they were a couple of calm experts, the feminist women who harassed Senator Jeff Flake in an elevator during the hearing’s intermission, prompting the weak and impressionable man to have second thoughts about Kavanaugh. Calm experts, too, the screaming “pro-choice” protesters who had to be carried out during the previous confirmation hearings.
But for all her oblivious conceit, Valenti’s language reveals that, for her as for other feminists, this issue is not about justice in regard to Kavanaugh and Ford: it is about women’s grievances towards men in general. For that this controversy is but an occasion, and to that due process must yield.
The apex of the moral smugness towards Brett Kavanaugh is — where else? — in academia. Here the examples are many, so I shall focus only on the worst: namely, the letter signed by over 2,400 law professors opposing Kavanaugh’s confirmation to the Supreme Court. Kavanaugh, the professors believe, “displayed a lack of judicial temperament” at the September 27 hearing. The letter was emailed to the offices of Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer on October 4.
A testament to liberal partisanship and dubious assumptions, the letter claims that
Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh located the hearing as a partisan question, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to questioners.
Citing the bureaucrats at the Congressional Research Service, the letter states that a judge must have “a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.”
The letter reminds us, moreover, that
under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. See 28 U.S.C. §§ 144, 455. As this Congress has put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 USC § 455.
Like the reactions to last year’s Amy Wax controversy, this letter does not reflect well on the state of legal academe. The moralism would be all well and good if these professors had bothered to make a substantive case. But they did not. Certainly “Judge Kavanaugh located the hearing as a partisan question, referring to it as ‘a calculated and orchestrated political hit.’” The professors need not agree, but they have to do much more than assert “the need for the Senate, faced with new information, to try to understand what had transpired.” For in context, Kavanaugh’s conception of the hearing is eminently reasonable.
To begin with, Senator Chuck Grassley offered to send investigators to California to speak with Christine Ford. Although this offer was national news, as it were, Ford claimed she was unaware of it. If she did not lie about that, as she did about her fear of flying, and probably much else, then her attorneys — in violation of legal ethics — withheld information from her. Either way, it is highly probable that the purpose of the D.C. location was to realize the political interests which, arguably, were behind this controversy from the beginning. After all, Ford’s ever-changing story is riddled with holes and inconsistencies, and as prosecutor Rachel Mitchell wrote in her devastating report, “the activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account.”
Nor is it true that Kavanaugh wasn’t “open to the necessary search for accuracy.” On the contrary, he repeatedly stated that he’d accept a seventh FBI background investigation, if that’s what the Senate Judiciary committee wanted; but believing himself to be innocent, and the hearing “a calculated and orchestrated political hit,” he objected to the seventh FBI background investigation on principle. Again, the law professors need not agree, but they have done absolutely nothing to show that Kavanaugh is wrong here, even as the facts are very much in his favor.
As for the criticism that Kavanaugh was “repeatedly aggressive with questioners,” “intemperate,” “discourteous,” and so on, let us assume for argument’s sake that this is accurate. Now, given the overwhelmingly liberal character of legal academe, it is worth asking whether the law professors would have perceived a liberal judge in the same manner, and whether they would have been so vexed by such behavior by him or her. In any event, one might have fairly expected some allowance for natural and rightful anger in a man who believes he is innocent and that people are trying to ruin his and his family’s lives. Consider that Kavanaugh was faced with vague, varying allegations of a vile crime from nearly forty years ago, while thousands of people echoed the charges with “I believe Dr. Ford.” In such circumstances does not good character call for fierce indignation? Anyway, the closest the professors come to showing empathy for Kavanaugh’s condition is this single, rather half-hearted sentence: “The question at issue was of course painful for anyone.” Which is abruptly followed by: “But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry.”
There is a touch of unintended grim humor in that breathless transition. It is much as though someone were to ask how your day went, but by the time you get three words out, he has already launched into impassioned talk about himself. It seems plain that for the law professors, as for the Democrats, anything besides abject, emotionless submission to the manipulations of Ford, her attorneys, and the Democrats is evidence of a bad character. Such a perspective, I submit, is itself testimony to the grossest bias, and perverse and contrary to human nature besides.
Said Mark Lemley, a professor at Stanford Law School: “As someone who knew and liked Brett Kavanaugh when we clerked together, I have tried very hard to stay out of this process and to give him the benefit of the doubt.” But alas, at the September 27 hearing Kavanaugh “was not what we should expect of a Supreme Court Justice. Telling obvious lies about his background, yelling at senators, refusing to answer questions, and blaming his troubles on others is not appropriate behavior.” What “obvious lies”? Why was “yelling at Senators” not “appropriate behavior”? “Refusing to answer [which] questions”? What “troubles” did Kavanaugh blame “on others,” and why was he wrong to do so? Lemley doesn’t say, for his purpose is superficial: showing everybody what a good person he is.
Another day, another moral show for fellow frauds — so it is ever with the professoriate.
Meanwhile, it is quite foolish to imply, as the law professors do, that temperament is some sort of clear judiciary criterion. With their vague language and confused thought, the professors betray that their minds are bundles of smug prejudice: hardly the sort of people who should be training future lawyers. They don’t even know what they mean by the idea of temperament in this context: precisely what it entails in regard to both reasoning and morality.
The assumption that temperament tells us so much about a person’s reasoning ability or other intellectual competence is a delusion; in this case, motivated by resentment and a will to punish. For temperament and reasoning, though related in many instances, are quite different things. Although we have the rightful intuition that a moral monster should not occupy any position of importance, temperament does not explain reasoning, nor does the latter reduce to it.
It is the same with character. Your neurosurgeon may be a jerk, but that in itself entails nothing about his ability qua neurosurgeon. Likewise with Brett Kavanaugh and his jurisprudence.
This is not to say that temperament and character don’t matter. They do. Just not in this facile moralistic sense. The general, unspoken premise of Kavanaugh’s self-righteous critics is that judiciary reasoning is determined by temperament in some precise, straightforward sense that everybody understands. This is sheer nonsense. People are simply assuming a certain relationship because doing so allows them to assert their prejudices and interests.
Kavanaugh’s critics, in legal academe and elsewhere, are an appalling spectacle.Many are people who cannot read or think beyond a high school level — and that’s putting it generously. They could never get to where Kavanaugh has in life. Still, in their dull hysteria they fancy themselves superior to the man.
Happily for him, Brett Kavanaugh has been confirmed to the Supreme Court. It is said that Dianne Feinstein’s pal Alyssa Milano will soon lead a celebrity resistance protest. Whether Milano will get naked, as she has in several bad movies, is not known.
Christopher DeGroot is a columnist at Taki’s Magazine and senior contributing editor of New English Review. His writing has appeared in The American Spectator, The Imaginative Conservative, Frontpage Magazine, The Daily Caller, American Thinker, Jacobite Magazine, The Unz Review, Ygdrasil, A Journal of the Poetic Arts, and elsewhere. Follow him at @CEGrotius.
Actress Alyssa Milano aboard the USS Nimitz in a USO appearance during Operation Iraqi Freedom in 2003 (Wikimedia Commons)