Kavanaugh's Temperament

Lawfare blog Executive Editor Susan Hennessey tells NPR's Lulu Garcia-Navarro about what Brett Kavanaugh's demeanor during his testimony might tell us about his ability to be a Supreme Court justice.

LULU GARCIA-NAVARRO, HOST:

When Brett Kavanaugh spoke before the Senate judiciary committee during his confirmation hearing three weeks ago, he was measured, receptive, calm. Last week, he was not. Kavanaugh's voice was almost constantly raised. His face was red. He choked up. And at one point, he accused the Democrats of a partisan smear campaign.

(SOUNDBITE OF HEARING)

BRETT KAVANAUGH: 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.

GARCIA-NAVARRO: Susan Hennessey joins us now to talk about that testimony and her concerns about what it might say about Kavanaugh's judicial temperament. She's the executive editor of Lawfare and a fellow at the Brookings Institution. Welcome to the program.

SUSAN HENNESSEY: Thanks for having me.

GARCIA-NAVARRO: So it's been a week, but I want to know what you thought of Brett Kavanaugh's performance on Thursday. And I'm really asking here about his demeanor more than the substance of his responses.

HENNESSEY: Yeah, so I think there are sort of four notable features to Kavanaugh's testimony. It was angry. It was disrespectful. It was partisan. And I do think it was dishonest in places. So the open disrespect of senators was really on full display. There was one interaction with Senator Amy Klobuchar that I think struck a particular nerve with women.

GARCIA-NAVARRO: In fact, let's hear now Senator Amy Klobuchar asking Kavanaugh about whether drinking has ever affected his ability to remember an event. Here's that exchange.

(SOUNDBITE OF ARCHIVED RECORDING)

KAVANAUGH: If you're asking about, yeah, blackout, I don't know. Have you?

AMY KLOBUCHAR: Could you answer the question, Judge, just so you - that's not happened. Is that your answer?

KAVANAUGH: Yeah. And I'm curious if you have.

GARCIA-NAVARRO: So that's the kind of disrespectful tone that you're talking about. But is any of that disqualifying in your view?

HENNESSEY: Well, it's I think sort of if it was situational, maybe not. But whenever we combine it with the other two sort of more substantive elements, it becomes more problematic. And that's that Kavanaugh's statement was openly partisan. And it's coming from a guy who just a few weeks ago in that first confirmation hearing said - and I quote - "The Supreme Court must never be viewed as a partisan organization," end quote.

You know, the final element is that Kavanaugh seems to have been dishonest and misleading sort of throughout. Kavanaugh represented himself as someone who wasn't a heavy drinker, as believing vulgar terms that he used actually had innocent meaning, as making only respectful references to female friends in his yearbook. You know, and these are representations that are really strongly contradicted by the written record, by statements of people who knew him at the time. And frankly, they're explanations that sort of defy common sense.

GARCIA-NAVARRO: But this has clearly been an excruciating time for Kavanaugh and his family. Is it fair to use what may be the worst moment of his life to assess his judicial temperament, as some are doing?

HENNESSEY: So confirmation hearings really are important tests of the - sort of this thing - judicial temperament. And that temperament is the ability to remain cool and rational and impartial. What is really so remarkable is that, throughout his tenure on the D.C. Circuit, Kavanaugh really has been a model judge in this respect, whether or not you agree with his rulings. That's one of the reasons why he was actually selected.

So after Thursday, I think there is this question of whether or not his prior record of service was sort of just an act, and the person we saw Thursday - that's who he really is, or if he's so disgusted and outraged by the process that it's actually going to reshape the kind of judge he is moving forward. Either way, you know, this just isn't the behavior that we would expect, nor frankly that we should tolerate from an aspiring Supreme Court justice.

GARCIA-NAVARRO: You talked earlier about his partisanship and the sort of accusations that he made targeting the Democrats as being inappropriate for a Supreme Court justice. But is it still realistic to think of the court, which seems so ideologically divided, as a nonpartisan body? Is that not just theater?

HENNESSEY: So certainly, the Supreme Court is not a pure and apolitical organization. And we should be sort of candid about that. Whenever we think about these questions of judicial impartiality, which really is what judicial temperament is about, we use this kind of reasonable person standard. Would a reasonable person believe that this is a judge who can fairly decide the matter?

And I think based on Brett Kavanaugh's testimony on Thursday, a reasonable Democrat would wonder if this was a person who could fairly hear their case. A reasonable sexual assault survivor would wonder if this is a person that can reasonably decide their case. And this appearance of nonpartisanship is so important, you know, just to the basic legitimacy of the court. I think the problem is that Kavanaugh sort of can't unring this bell.

GARCIA-NAVARRO: Susan Hennessey, executive editor of Lawfare, thank you very much.

HENNESSEY: Thanks for having me.

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