One Angry Judge

What would you do if during the course of a job interview you were accused of crimes so heinous that they would not only disqualify you for the position, but also land you in jail—justifiably, if you were guilty—for the rest of your life?

According to some 2,400 members of the American legal profession, including some of my own colleagues at the University of Chicago, Brett Kavanaugh is incapable of serving as an Associate Justice on the Supreme Court of the United States because he was “intemperate” when accused publicly not just of high school and college drunkenness, but of rape, gang-rape, and attempted rape.

In their words:

Judicial temperament is one of the most important qualities of a judge....  

We are law professors who teach, research, and write about the judicial institutions of this country.... We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 28 [sic*], 2018, the Honorable Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land. 

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry.... Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to questioners.

Since when was getting angry a disqualification for being a good judge? The law professors insist that judges should recuse themselves when they are “at risk of being perceived as or of being unfair”—begging the question of what creates the perception of being unfair. Was it unfair of Brett Kavanaugh to attempt to defend his own reputation? Was it unfair of him to get angry at being slandered in what everyone could see was a partisan attempt to prevent his nomination being confirmed? Why should Kavanaugh’s display of emotion be the determining criterion—according to the law professors—for whether he is qualified to judge?

Note what Kavanaugh did not do while being forced to defend his character and life-long effort at living with virtue.

He did not stand up.

He did not pace around the room.

He did not physically threaten anyone.

He did not brandish a weapon.

Rather, he sat at a table and spoke.

And for that he is judged by his own colleagues in the legal profession “intemperate” and therefore unqualified to be a judge.

I wonder how they are feeling now that his nomination has been confirmed and he has been sworn in as judge.

Angry, perhaps? Slighted? Their good judgment and reputations on the line for signing a letter that is factually inaccurate? (That little matter of the date...*) Perhaps a little ridiculous realizing that they are going to have to appear in front of him in future if any of the cases that they litigate make it to the Supreme Court?

And yet, they would doubtless still insist, the fact that Kavanaugh got angry says something significant about his character. But what exactly?

Why do people get angry? Thomas Aquinas had a theory about that: because they desire revenge. And why do people desire revenge? Because they have made a rational judgment about being wronged. In this respect anger is different from hatred because someone who is angry wants justice, while someone who is hateful wants another’s evil for evil’s sake, not for the sake of justice. While hatred may be irrational, anger—because it is a desire for vengeance—is at root rational: it is based on a judgment of having been injured or slighted. It is also, according to Aquinas, likely to be stronger the more excellent one’s character is.

In the Angelic Doctor’s words:

The cause of anger, in the man who is angry, may be taken in two ways. First in respect of the motive of anger: and thus excellence is the cause of a man being easily angered. Because the motive of anger is an unjust slight.... Now it is evident that the more excellent a man is, the more unjust is a slight offered him in the matter in which he excels. Consequently those who excel in any matter, are most of all angry, if they be slighted in that matter; for instance, a wealthy man in his riches, or an orator in his eloquence, and so forth.

To suggest that Kavanaugh should not have gotten angry is to suggest that there was nothing in the hearing intended to call his character into question, that it was only about the positions he would take on matters that were of no personal interest to him or on which he would be asked to have opinions based solely on the letter of the law.

It is to suggest that there was nothing in the hearing that he should take personally—that he should not feel injured or slighted at the implication that he was being accused of gross character defects, not to mention crimes.

It is to suggest that he was incapable of judging the severity of the slight to his reputation and good name.

It is to suggest that his reason is so defective that he has no business being a judge.

Judging from the responses out there on social media this evening, there are a lot of angry Democrats—many of them women—wishing vengeance down upon the senators who voted to confirm Brett Kavanaugh as the 114th Justice of the United States Supreme Court.

You would almost think it was their character that had been impugned.

*The hearing was on Thursday, September 27, not Thursday, September 28.