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Brett Kavanaugh’s Op-Ed Is a Good Argument Against His Confirmation

The embattled Supreme Court nominee writes in the Wall Street Journal that a justice should be “independent and impartial”

Supreme Court nominee Judge Brett M. Kavanaugh at a Senate Judiciary Committee hearing, on Capitol Hill in WashingtonSupreme Court Kavanaugh, Washington, USA - 27 Sep 2018

Embattled Supreme Court nominee Brett Kavanaugh wrote in the Wall Street Journal that a justice should be "independent and impartial."

Melina Mara/AP/REX Shutterstock

On Wednesday, the New York Times published a letter that has now been signed by over 2,400 law professors who oppose Brett Kavanaugh’s confirmation to the Supreme Court. The letter does not reference the sexual assault allegations made against the nominee, nor does it mention the possibility that he has lied under oath. What troubles the legal community the most is the partisanship exhibited by Kavanaugh as he testified before the Senate Judiciary Committee last Thursday, along with his inability to control his emotions. “We have differing views about the other qualifications of Judge Kavanaugh,” the letter concluded. “But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”

With a confirmation vote imminent and a small handful of senators still reportedly undecided, Kavanaugh penned an op-ed for the Wall Street Journal defending his emotional performance at last week’s hearing. “My hearing testimony was forceful and passionate,” he wrote in the piece Thursday night. “That is because I forcefully and passionately denied the allegation against me. At times, my testimony — both in my opening statement and in response to questions — reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.”

Kavanaugh’s statement was also astonishingly partisan, and he dedicated a good portion of this op-ed to preaching about how a Supreme Court justice must be “a neutral and impartial arbiter who favors no political party, litigant or policy” and how “an independent and impartial judiciary is essential to our constitutional republic.” In doing so, he is essentially making a case against himself. He granted his only interview to a partisan cable news network, and published his op-ed in a partisan publication. In his opening remarks last week, he argued that the sexual assault allegations against him were a “political hit” and “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” After continuing to rail against what he described as a “grotesque and coordinated character assassination,” Kavanaugh warned ominously that “what goes around comes around.”

As he made clear at the beginning of his speech, he wrote these remarks himself. These are his beliefs, and they are inarguably partisan. Trying to claim a week later that he’s actually “independent and impartial” doesn’t change anything. On Thursday night, Sen. Patrick Leahy (D-VT), a member of the judiciary committee that presided over last week’s hearing, tweeted that Kavanaugh “can’t erase blaming sexual assault allegations” on Democrats.

On Friday morning, the American Bar Association announced that it is re-opening its evaluation of Kavanaugh, citing his “temperament” as the impetus. Last week, the ABA called for the FBI to investigate the sexual assault claims against the nominee.

It’s not just Senate Democrats, the ABA or an entire nation of esteemed law professors who feel like Kavanaugh’s behavior last week should preclude him from sitting on the Supreme Court. On Thursday afternoon, retired Supreme Court Justice John Paul Stevens, a lifelong Republican who had previously praised Kavanaugh, said that “his performance during the hearings caused me to change my mind” about whether he should be confirmed. It was the first time in U.S. history that a current or former Supreme Court Justice has publicly opposed the confirmation of someone who has been nominated to serve on the court.

Kavanaugh ultimately blamed his temperament last Thursday on his devotion to his family. “I was very emotional last Thursday, more so than I have ever been,” he wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.”

But Kavanaugh was not sitting before the Senate Judiciary Committee to be assessed as a family man; he was there to be assessed as a prospective Supreme Court Justice of the United States. In this capacity, he failed spectacularly. He could not control his emotions, even over the course of hours. He talked back to the senators questioning him like a petulant teenager. He was sarcastic. He pouted. He showed a total lack of respect for the committee’s decision to treat Christine Blasey Ford’s allegation as credible. In the most crucial moment of his confirmation process, he totally blew it. He can’t take that back. As the law professors’ letter in the Times notes, Kavanaugh “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.” This isn’t something anyone needs to corroborate. There’s an entire nation of firsthand witnesses.

In This Article: Brett Kavanaugh, Supreme Court

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