Judge Kavanaugh’s Temperament

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

It may be too soon to say for certain how long the Democrats will be able to stretch the week’s delay they’ve won on Judge Kavanaugh’s confirmation vote in the Senate. It’s not too soon, though, to say that quite apart from the FBI investigation they’ve demanded, any delay will be used by the Democrats to bolster their campaign against his confirmation on grounds other than sexual assault.

A glimpse of this is already being reported in the Times. Its Supreme Court correspondent, Adam Liptak, has a story up on the Gray Lady’s Web site suggesting that the nominee’s bitterness at the unfairness of the Judiciary Committee in and of itself is raising questions. The questions are in respect of whether he has what the Times calls the neutrality and temperament to sit on the high bench.

In the coming week, the Democrats can be counted on to pull out every stop in this organ. We don’t blame Mr. Liptak for this (he’s just bringing in a scoop). He reports on sentiments that in the showdown hearing on Thursday the Judge betrayed vows he made during the earlier stages of his confirmation hearing, when he averred that the Supreme Court “must never be viewed as a partisan institution.”

To avoid viewing the court that way, though, one would have to turn a blind eye to 229 years of history. This started with President Jefferson trying to run the Federalists out of their federal judgeships. It may have reached a zenith during FDR’s campaign to pack the court. It plumbed its depths when Justice Ruth Bader Ginsburg vowed that if Donald Trump won the election she’d move to New Zealand.

Mr. Liptak lays the concerns over Judge Kavanaugh to such remarks as his charge on Thursday that the hearings were an “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.”

By our lights, the judge’s remarks exhibit two features of a great judicial temperament — realism and honesty. Yet the Democrats are going to try to string up the judge with his own sentences, such as when he warned that the consequences of his hearings “will be with us for decades” and “dissuade competent and good people of all political persuasions, from serving our country.”

“As we all know,” the judge also said, “in the United States political system of the early 2000s, what goes around comes around.” He said he has always tried to be on the “sunrise side of the mountain, to be optimistic.” He added, though, that today “I have to say that I fear for the future.” It is clear that this is one of the issues with which the Democrats are going to try to hang Judge Kavanaugh.

“Every bit of research ever done on the subject concludes that judges are human beings with emotional reactions that influence how they decide cases,” Mr. Liptak quotes a Cornell law professor as saying. Maybe Google can develop a robot judge. Another Cornell professor told the Times that Judge Kavanaugh might show an extra skepticism in respect of arguments favoring congressional power.

Hah, that’s a good one. John Marshall, call your chambers.

For our part, we hope Judge Kavanaugh bears up until the Senate finds the will to act. President Trump reckoned, as we noted this morning, that Judge Kavanaugh’s performance before the Judiciary Committee Thursday showed exactly why he got the nomination in the first place. It’s a time to remember that the harder the fight the greater the glory.

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Image: Detail of ‘The Judgement of Solomon’ by Leonaert Bramer, circa 1640 – 650. From Wikiart.


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