For the past week, Americans have argued about whether or not Brett Kavanaugh is guilty of sexual assault. But at this point, it doesn’t really matter.
Of course, his guilt or innocence matters in some contexts. It matters to him and his loved ones. It matters to Dr. Christine Blasey-Ford and her loved ones. It matters to the sexual assault victims who see themselves in Ford’s testimony. It matters to our public discourse surrounding sexual violence.
But as far as whether or not Brett Kavanaugh should be confirmed as a Supreme Court Justice—which is why we’re all here to begin with—it doesn’t matter. At this point, even if the various sexual assault allegations against him were 100% false, even if it’s all a “sham” as Lindsey Graham claims, even if this is one great big partisan hit job to make him appear unfit, none of it would matter.
The Senate screens a candidate for SCOTUS so that they can “advise and consent” on the nominee. In doing so, they’re examining not only his education and judicial record, but also whether or not he has what it takes to serve a lifetime appointment in the highest judicial office in the land.
Naturally, putting an attempted rapist on the bench would not be an ideal choice, but we don’t have definitive proof of that. What we do have now is undeniable proof that he is not fit for the job.
Brett Kavanaugh disqualified himself in the Senate hearing with behavior unbefitting a Supreme Court Justice.
For the sake of argument, let’s say that he is completely innocent of all allegations. How he responds to such allegations is still important. How he behaves when questioned, how he expresses himself, how he comports himself under pressure—these are all aspects of “judicial temperament” that the Senate needs to take into consideration.
The concept of judicial temperament is somewhat elusive. While there is no definitive description of what it looks like, we tend to know it when we see it—and more importantly, we know it when we don’t.
The American Bar Association simplifies what makes a good judge in its online curriculum for educators with a list of character qualities which we might consider when defining "judicial temperament":
Skeptical yet trusting
A good listener
Someone who asks questions
Firm and in control
Recognized member of community
Good role model
If those are the qualities we should expect from any judge, a nominee for the Supreme Court should exemplify them to the highest degree. Did Judge Kavanaugh exemplify each of these qualities to the highest degree in that Senate hearing, while under oath, in front of the entire nation?
On several counts, no, he did not.
His partisan jabs show that he is not “unbiased,” and his demonstrable lies knock out “honest.”
A judge who is supposed to be impartial and unbiased doesn’t say things like, “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 that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.” I mean, really.
A judge who is supposed to be honest doesn’t say that “boofed” and “Devil’s Triangle” are innocent drinking terms when everyone who is familiar with those terms know that they are salacious euphemisms for specific sex acts. A judge who is honest doesn’t try to make obvious youthful transgressions, no matter how embarrassing, into something they are not.
An honest person, when confronted with undignified things they were obviously party to in the past, says, “I did some things in my past that I am not proud of. The culture in which I spent my youth had many toxic and unhealthy elements to it, and I did and said things I regret and am embarrassed by. I have learned a lot and changed a lot since then.” They don’t keep saying all they did was go to church, play sports, drink responsibly, and not have sex.
Even if he were innocent of all sexual assault allegations, it’s obvious that he was immersed in a heavy partying culture in high school and college that all of us recognize. Why not just own up to that? Sometimes telling the truth is hard, but if you’re trying to be a Supreme Court Justice, there’s no room for any dishonesty of any kind, especially under oath.
Perhaps most disturbing was his barely contained rage and his disrespectful interchanges with Senators. What I saw was not “civil,” “courteous,” and “firm and in control.”
I went into the hearing with an open mind, and was honestly shocked by Kavanaugh’s behavior. I’ve never seen anything like that from someone who is supposed to be a highly respected professional. When Senator Klobuchar asked him if he’d ever drunk so much that he didn’t remember something, his response was "You're asking about blackout. I don't know, have you?" Who says that? Then after she calmly asked him to answer the question, he doubled down about her drinking again.
I'm pretty sure this isn't what the ABA means by "Someone who asks questions." Why would you not simply answer the question?
Sen. Klobuchar and Kavanaugh share tense exchange over judge's drinking habits
Sen. Klobuchar: There’s never been a case where you drank so much that you didn’t remember what happened the night before?Judge Kavanaugh: “I don't know. Have you?”…Klobuchar: “I have no drinking problem, Judge.”Kavanaugh: “Nor do I.” https://nbcnews.to/2N6dSVZPosted by NBC News on Thursday, September 27, 2018
To his credit, he apologized to the Senator afterward. However, the fact that it happened in the first place is unacceptable. So was his yelling throughout the hearing.
People keep saying that he has a right to be upset and that anyone would respond with that level of anger at being falsely accused. But he’s not just anyone—he’s the nominee for the highest judicial position in the land.
It's not like this accusation had just happened that morning and he was having a knee-jerk reaction. He had at least ten days to gather his emotions and composure before appearing before the Senate. I don’t fault him for arriving at the hearing ready to defend himself; however, I do fault him for being unable to do so with the decorum that we should expect from a Supreme Court Justice.
Whether he sexually assaulted anyone is not the most relevant question, especially since it’s unlikely to be definitively proven one way or another. The question is whether he has what it takes to do the job he’s lined up for.
As a Supreme Court Justice, he will be subjected to unending hate mail, his character and beliefs will be constantly attacked, and his motivations for his judgments will be called into question every single time. He has to be able to handle those attacks with self-control, civility, and impartiality. That’s the job.
And he has proven, beyond a reasonable doubt, that he’s not up for it.