Brett Kavanaugh and I differ on most fundamental questions of constitutional law. Nevertheless, as a former dean of the institution where he received his law degree, I have withheld comment on the merits of his appointment. I am proud of the rich diversity of views that Yale Law School has produced.

Over the past decade, Kavanaugh has been a casual acquaintance. He seemed a gentle, quiet, reserved man, always solicitous of the dignity of his position as a judge on the United States Court of Appeals for the District of Columbia Circuit. It was therefore with something approaching unbelief that I heard his speech after Christine Blasey Ford’s testimony.


With calculation and skill, Kavanaugh stoked the fires of partisan rage and male entitlement. He had apparently concluded that the only way he could rally Republican support was by painting himself as the victim of a political hit job. He therefore offered a witches’ brew of vicious unfounded charges, alleging that Democratic members of the Senate Judicial Committee were pursuing a vendetta on behalf of the Clintons. If we expect judges to reach conclusions based solely on reliable evidence, Kavanaugh’s savage and bitter attack demonstrated exactly the opposite sensibility.

I was shell-shocked. This was not the Brett Kavanaugh I thought I knew. Having come so close to confirmation, Kavanaugh apparently cared more about his promotion than about preserving the dignity of the Supreme Court he aspired to join. Even if he sought to defend his honor as a husband and father, his unbalanced rantings about political persecution were so utterly inconsistent with the dispassionate temperament we expect from judges that one had to conclude that he had chosen ambition over professionalism.

His performance is indelibly etched in the public mind. For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger, a haunting reminder that behind the smiling face of judicial benevolence lies the force of an urgent will to power. No one who felt the force of that anger could possibly believe that Kavanaugh might actually be a detached and impartial judge. Each and every Republican who votes for Kavanaugh, therefore, effectively announces that they care more about controlling the Supreme Court than they do about the legitimacy of the court itself. There will be hell to pay.

I was in the end prompted to write this essay because, on Thursday, Kavanaugh published a remarkable op-ed in the Wall Street Journal in which he apologized for his rash words and attempted to reclaim for himself the “independence and impartiality” so necessary for judges. But judicial temperament is not like a mask that can be put on or taken off at will. Judicial temperament is more than skin-deep. It is part of the DNA of a person, as is well illustrated by Merrick Garland, who never once descended to the partisan rancor of Kavanaugh, despite the Senate’s refusal even to dignify his nomination with a hearing.


Judge Kavanaugh cannot have it both ways. He cannot gain confirmation by unleashing partisan fury while simultaneously claiming that he possesses a judicial and impartial temperament. If Kavanaugh really cared about the integrity and independence of the Supreme Court, he would even now withdraw from consideration.

But I see no evidence that he is about to withdraw. Kavanaugh will thus join the court as the black-robed embodiment of raw partisan power inconsistent with any ideal of an impartial judiciary. As the court moves to the right to accommodate Trump’s appointments, Kavanaugh will inevitably become the focus of distrust and mobilization. His very presence will undermine the court’s claim to legitimacy; it will damage the nation’s commitment to the rule of law. It will be an American tragedy.