After Kavanaugh railed against the left, observers on both sides of the aisle see ‘legitimate questions about him as a justice’

When Brett Kavanaugh first appeared before the Senate judiciary committee, in early September, the supreme court nominee portrayed himself as an independent-minded judge whose decisions would be dictated not by politics but by the rule of law.

“A good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy,” Kavanaugh said, adding: “I don’t decide cases based on personal or policy preferences.”

But last week, in the wake of allegations of sexual misconduct, Kavanaugh’s testimony before the same committee took on a dramatically different tone. In a fiery, 45-minute statement which largely took aim at the panel’s Democrats, Kavanaugh blasted his confirmation process as “a national disgrace”.

“This whole two-week effort has been a calculated and orchestrated political hit,” Kavanaugh said, “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 leftwing opposition groups”.

It was a remarkable turnaround for a nominee who just weeks earlier declared: “The supreme court must never be viewed as a partisan institution.”

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Kavanaugh’s defenders have dismissed his aggressive demeanor as the inevitable response of a man under siege, trying to clear his name of allegations he denies. Elsewhere, his testimony has prompted fresh concerns over his ability to be impartial if confirmed to America’s highest bench.

“I think this will stain the way people view the court, whether he’s a justice or not,” said Benjamin Barton, a professor of law at the University of Tennessee at Knoxville.

“The public perception that the supreme court is a political body as much as a judicial one waxes and wanes over time … but this particular process will make people believe that it’s a political body.”

Kavanaugh’s nomination has been polarizing from the outset given the significance of the seat he is poised to fill.

Kavanaugh, a former White House lawyer under George W Bush, was nominated by Trump in June to replace the retiring justice Anthony Kennedy, a conservative who often acted as a crucial swing vote on issues including abortion and LGBT rights. If confirmed, Kavanaugh would tilt the bench in a staunchly conservative direction for decades.

It was therefore of little surprise that Kavanaugh went to great lengths over the course of his four-day confirmation hearing to portray himself as apolitical. He vowed to judge each case before him on the merits as opposed to his own philosophical views.

Last week, however, with his nomination on the line, Kavanaugh dropped any pretense of impartiality.

“You have replaced ‘advise and consent’ with ‘search and destroy,’” he chastised Democrats, warning moments later: “What goes around comes around.”

Play Video 2:11 Key moments from the Ford and Kavanaugh hearings – video

The conservative commentator Bill Kristol, who served in multiple Republican administrations, said: “I’ve just got to think: people will wonder when cases come up whether he can be fair.”

Kavanaugh “could have been indignant and angry”, Kristol added, without bordering on conspiracy-minded by invoking the Clintons and those disappointed with Trump’s election.

“I think that really is inappropriate and raises legitimate questions about him as a justice,” he said.

The explosive hearing saw Dr Christine Blasey Ford testify for the first time in public that Kavanaugh had attempted to rape her when they were teenagers in the early 1980s. The allegations against Kavanaugh are the subject of an FBI investigation that has temporarily placed his nomination on hold.

During the emotionally fraught testimony, Kavanaugh routinely clashed with Democrats on the panel while Republicans fiercely defended his honor.

“The entire process struck me as unusually strident,” said Barton, who was also critical of some Democrats for using the hearing as an opportunity “to fire up their base” rather than assessing Kavanaugh’s fitness for office.

With the November midterm elections looming, both parties see the Kavanaugh fight as a potential turning point at the polls. Although recent surveys show a slim majority of Americans souring on Kavanaugh, public opinion is sharply divided along partisan lines.

Republican leaders have refused to back down and they plan to hold a procedural vote on Kavanaugh’s nomination this week, even as it remains unclear if he can meet the 51-vote threshold necessary to advance.

Questions have meanwhile abounded over Kavanaugh’s temperament and objectivity from Democrats and Republicans alike.

“Anyone who watched the judiciary committee hearing on Thursday should have serious, if not disqualifying, doubts about Judge Kavanaugh’s credibility and independence,” Chuck Schumer, the Senate minority leader, said in a floor speech on Monday.

“It was quite clear from Thursday’s testimony Judge Kavanaugh harbors deep, deep partisan resentments. That’s not the kind of justice we need on the supreme court.”

Senator Jeff Flake, a Republican from Arizona who demanded the FBI investigation into Kavanaugh, also expressed concern with the judge’s “sharp and partisan” tenor.

“That concerns me,” Flake said at the Atlantic Festival in Washington. “And I tell myself: you give a little leeway because of what he’s been through.

“But, on the other hand, we can’t have this on the court. We simply can’t.”

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Speaking at the same conference, the former Democratic presidential nominee Hillary Clinton described Kavanaugh’s behavior as “out of bounds”.

“Whoever believes there is a judicial temperament … a sense of fairness, there’s a lot to be concerned about,” she said.

Clinton noted that she had served in the Senate for eight years and voted against George W Bush’s supreme court nominees – but based on their positions rather than their temperament.

“I don’t remember any of them, nor the most recent appointment by President Trump, Neil Gorsuch, behaving in such a way,” she said. “This latest example is in a different category. We have not seen anything quite like that for a long time.”

It remains unclear if Kavanaugh’s fire-and-fury approach will have any bearing on his prospects. His fate is expected to be determined by a handful of moderate senators who have made their reservations well known while declining to take a final position on the nomination.

Republicans hold a narrow 51-49 seat majority in the Senate and can afford to lose just one vote – a scenario in which vice-president Mike Pence would act as tie-breaker to confirm Kavanaugh.

Even those sympathetic to Kavanaugh are increasingly inclined to believe his credibility has been damaged beyond repair.

Benjamin Wittes, a longtime friend of the judge who had voiced support for his nomination, published an emotional op-ed on Tuesday stating: “If I were a senator, I would not vote to confirm Brett Kavanaugh.”

“This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write,” wrote Wittes, the editor-in-chief of Lawfare.

Whatever the truth of Kavanaugh’s alleged assault of Ford, he added, last week’s hearing had left the judge “nonviable as a justice”.

“I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air,” Wittes wrote.

“But I cannot condone the partisanship – which was raw, undisguised, naked, and conspiratorial – from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.”