A large group of my law professor colleagues (now over 2,400 of them!!!) have signed an “Open Letter” addressed to the U.S. Senate stating their opposition to Judge Brett Kavanaugh (BK). The crux of their sanctimonious argument is that BK lacks the judicial temperament to sit on the U.S. Supreme Court:
… [BK] exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, [BK] was repeatedly aggressive with questioners. Even in his prepared remarks, [BK] 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, [BK] responded in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to questioners.
Is this letter right? Does BK lack judicial temperament? This law professor letter is misguided on multiple levels. Specifically, in addition to the counter-arguments made here, I dissent from this letter for the following three reasons:
- Double standards. The letter states that BK was “aggressive” as well as “intemperate, inflammatory, and … discourteous” during his 9/27 hearing in the U.S. Senate. The irony, however, is that these very same adjectives can be used to describe the behavior of many judges who are already on the bench, especially appellate judges and supreme court justices. Yes, judges are supposed to be impartial umpires, but even umpires get angry from time to time!
- Logical incoherence. The letter claims that BK is not open to the search for accuracy, but this claim is logically incoherent in a domain like law. Why? Because in most appellate and supreme court cases the laws in issue are open to competing and multiple interpretations, and there is no real way of “testing” which of these interpretations is truly the correct one. In short, judges are not Popperian falsifiers. In any case, BK was not presiding over a courtroom. He was at a hearing, accused of heinous behavior and being treated as a “hostile witness” by a group of sanctimonious senators.
- Void for vagueness. “Judicial temperament” is a vague and ambiguous standard to begin with. Worse yet, the professors who signed the above letter appear to be applying this standard in an unfair and selective manner. By way of example, let’s recall the words of my favorite justice Sonya Sotomayor, who once said, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Is this statement consistent with the open-ended “judicial temperament” standard referred to in the above letter?