His anger wasn’t the problem; the expression of it was.
“Anger [is] a short madness: for it is equally devoid of self-control, regardless of decorum, forgetful of kinship, obstinately engrossed in whatever it begins to do, deaf to reason and advice . and very like a falling rock which breaks itself to pieces upon the very thing which it crushes.”
— Seneca
Because we are required to disagree angrily about everything, we now find ourselves in a debate over the proper uses and display of anger.
Opponents of Brett Kavanaugh saw his performance last Thursday as an unhinged, petulant tantrum, while his supporters saw a display of wholly-justified, righteous anger, when he denounced what he called “this grotesque character assassination.”
His fury was on full display as he asserted his innocence and lashed out at the Democratic senators on the Judiciary Committee and “left-wing opposition groups.”
He is surely right about that last part, because this confirmation fight seems likely to leave a cloud over the nation’s highest court for a generation or more. His testimony has already been immortalized by Saturday Night Live.
In the short run it seems to have been effective. Kavanaugh’s philippic, followed by Lindsey Graham’s en fuego eruption, succeeded in rallying conservatives to his cause and may wind up securing his confirmation.
But by any measure, his harangue was atypical for both the judge and the venue. Judicial nominees generally do not interrupt and bait members of the United States Senate, nor do they indulge in partisan conspiracy theories in public settings.
Writing in the Atlantic, Eliot Cohen saw Kavanaugh’s testimony as a sign of the “collapse of modern conservatism” because of “its self-pity, its hysteria, its conjuring up of conspiracies, its vindictiveness.” Cohen acknowledges the provocations that sparked Kavanaugh’s outburst, but then suggests that Kavanaugh ought to have reacted with Seneca-like stoicism:
Let’s be honest: This seems like a bit much. If Kavanaugh is indeed an innocent man, he was more than justified in expressing anger and indignation. It would have been odd and off-putting if he did not. (Does anyone remember Mike Dukakis winning points for stoicism?) Kavanaugh’s critics had opened by accusing him of being “complicit in evil” and of threatening “the lives of millions of Americans for decades to come.” The allegations of sexual assault, blackout drinking, and gang rape were only the second act. Segments of the respectable media abandoned their normal journalistic standards, with the New Yorker pushing out an allegation without corroboration and the cable networks panting after celebrity porn star lawyer Michael Avenatti with a story that started falling apart even as it was being told. And throughout the process Democrats behaved very, very badly.
Kavanaugh is a man, not a cyborg and who would not be enraged as he watched his wife, his parents, and his children drawn into this nightmare? That seemed to be the consensus even among non-Trumpist conservatives. National Review’s David French saw Kavanaugh’s testimony as powerful, measured, and just about right:
It was all the more powerful, wrote French “because it came from a person of known restraint”:
Fair enough, I suppose. And yet.
The problem was not that Judge Kavanaugh was angry; it was the way he chose to vent his anger. There are appropriate and inappropriate ways of expressing anger, even in the Age of Trump. Prudence and restraint are good ideas for all of us in our daily life, but are essential qualities for a jurist. It is one thing for Lindsey Graham to audition for the role of the Senate’s angry Uriah Heep. It is quite another for a Supreme Court nominee to go Full Trump.
To be sure, Trumpism has shattered the norms of politics and civility, but last week we saw the blast zone extended to the judiciary. The judicial code of conduct admonishes judges to be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.” It declares:
In other words, the standards for judges are not the same as the standards for cable television or politics. Kavanaugh could have presented his case with dignity and controlled anger. Instead he chose to be aggrieved and petulant, more Sean Hannity than Felix Frankfurter. Contrast his behavior with Clarence Thomas, who was described by one reporter as “sweating anger” as he denounced what he called a “high tech lynching.” But Thomas never crossed the lines of deportment that Kavanaugh blasted through.
At this point, Kavanaugh is more likely than not to be confirmed along partisan lines for a job in which he could serve for another 40 years. Because of his outburst last week, his confirmation will be a short term win for the Right, but at the cost of casting a long shadow over any conservative jurisprudence that emanates from his pen.
At the heart of judicial conservatism is the belief that rulings should be based on the Constitution and the law, rather than the whims or biases of unelected judges. So it is vitally important that those decisions be seen legitimate by the American people. The legitimacy of the Court is undermined if the public believes that the court’s decisions are arbitrary, partisan rulings by ideologues.
To be fair to Kavanaugh, he did not begin this cycle of partisanship—the court has been divided along partisan and ideological lines for quite some time. Nor would he be likely to be the most partisan justice on the current court. But Kavanaugh went a good way last week to dropping the pretense of fairness.
Because there are no cameras in the Supreme Court, his emotional, angry, partisan testimony is likely to be the last time that millions of Americans get to see Judge Kavanaugh’s demeanor, temperament, fairness, and judgment in action.
The image is likely to be indelible, and as Kavanaugh himself said, the damage will last for decades.
