This is not the demeanor of a ‘well qualified’ judge

On Aug. 31, the American Bar Association gave Judge Brett Kavanaugh its highest rating of "Well Qualified" in connection with his nomination to the U.S. Supreme Court. To earn the highest rating, among other things, a Supreme Court nominee "must be a preeminent member of the legal profession," and must "meet the very highest standards of integrity, professional competence and judicial temperament." In evaluating "integrity," the ABA considers "the nominee's character" and in evaluating "judicial temperament," the ABA considers "the nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law."

Based on Judge Kavanaugh's conduct subsequent to the issuance of the ABA "Well Qualified" rating, the ABA should withdraw its rating and replace it with a rating of "Not Qualified."

The ABA Model Code of Judicial Conduct declares that a "judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety" (Canon 1) and "shall perform the duties of judicial office impartially, competently, and diligently" (Canon 2). In particular, a "judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office" (Canon 3). Furthermore, a "judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary" (Canon 4).

The official ABA Comments on Rule 1.2 point out that "[p]ublic confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety" in "both the professional and personal conduct of a judge." A "judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code."

The ABA emphasizes that conduct which "compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary." The comments also explain that "actual improprieties include violations of law, court rules or provisions of this Code," while the "test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge."

At his first round of hearings Judge Kavanaugh testified that the "Supreme Court must never be viewed as a partisan institution." However, as reported in The New York Times, at his second round of hearings to respond to accusations of sexual misconduct, "Kavanaugh was angry and emotional, embracing the language of slashing partisanship" and his "demeanour raised questions about his neutrality and temperament and whether the already fragile reputation of the Supreme Court as an institution devoted to law rather than politics would be threatened if he was confirmed." Adam Liptak, "Kavanaugh's Diatribe May Imperil Court's Neutrality, Experts Fear," New York Times (Sept. 28, 2018).

"This whole two-week effort has been a calculated and orchestrated political hit," Judge Kavanaugh said, "fuelled with apparent pent-up anger about U.S. 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."

Judith Resnik, a law professor at Yale, called Judge Kavanaugh's testimony "partisan and not judicious," and that his confirmation in the wake of his performance, could leave the Supreme Court "under a cloud of politics and scandal from which it would not recover for decades."

In 2016, Chief Justice John G. Roberts Jr., bemoaned the damage that even ordinary confirmation hearings do to his institution. "When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so fiercely about whether you're going to be confirmed, it's natural for some member of the public to think, well, you must be identified in a particular way as a result of that process."

According to The New York Times, experts in law and psychology believe "there was reason to fear that Kavanaugh's searing reaction to the recent accusations could affect his work should he be confirmed to the Supreme Court."

"Every bit of research ever done on the subject concludes that judges are human beings with emotional reactions that influence how they decide cases," said Jeffrey J. Rachlinski, a law professor at Cornell.

"This process clearly has ignited a passionate reaction in Judge Kavanaugh that will doubtless influence him for the rest of his life," Rachlinski said. "Research on how emotions influence judges suggests that he will be unable to set this experience aside when deciding cases involving relevant subjects or parties who are closely aligned with those he has today treated as personal enemies."

Eric J. Segall, a law professor at Georgia State, said Thursday's hearing both illuminated Judge Kavanaugh's political outlook and was likely to affect his voting on the Supreme Court if the Senate confirms him.

"His time in the executive branch and his work for Starr suggested he was one of the most partisan nominees in a long time," Segall said.

"I would think that any person, even acting in totally good faith, would not be able to put aside the obvious trauma of this hearing for him, whether he's telling the truth, lying or suffering from cognitive dissonance," Segall said. "This kind of event could greatly affect one's decision-making in the grey areas that most Supreme Court cases present."

While testifying under oath before the Senate Judiciary Committee, Judge Kavanaugh failed to "meet the very highest standards of integrity, professional competence and judicial temperament." In particular, he failed to exhibit "compassion," "open-mindedness," "courtesy," "patience," "freedom from bias" and a "commitment to equal justice under the law."

Instead, in violation of the ABA Model Code of Judicial Conduct, he failed to "uphold and promote the independence, integrity, and impartiality of the judiciary;" and he displayed "impropriety and the appearance of impropriety" (Canon 1) and "a lack of impartially" (Canon 2). In particular, he exacerbated rather than minimized "the risk of conflict with the obligations of judicial office" (Canon 3). As a judge and candidate for judicial office, he engaged in "political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary" (Canon 4).

Consequently, "[p]ublic confidence in the judiciary" has been eroded by Judge Kavanaugh's "improper conduct and conduct that creates the appearance of impropriety" in "both the professional and personal conduct of a judge." Judge Kavanaugh should have expected to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and yet he failed to abide by the restrictions imposed by the ABA Code.

Contrary to the ABA Code, Judge Kavanaugh "compromise[d] or appear[ed] to compromise the independence, integrity, and impartiality of a judge," thereby undermining "public confidence in the judiciary." Judge Kavanaugh engaged in "actual improprieties" including violations of law and provisions of the ABA Code, and also created the "appearance of impropriety" because his conduct "would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge."

Accordingly, for the foregoing reasons, it is imperative that the ABA withdraw its rating of "Well Qualified" and replace it with a rating of "Not Qualified."