Brett Kavanaugh’s nomination to the US Supreme Court has not only raised questions about his moral suitability for this prominent role, but also to his emotional suitability.
Appearing before the Senate Judiciary Committee ahead of his confirmation to answer questions about accusations that he assaulted Christine Blasey Ford when the two were in high school, Kavanaugh came across as belligerent, confrontational, lacking in self-control and rude. When senator Amy Klobuchar asked him if he had ever drunk so much he forgot events that occurred, he replied, “I don’t know, have you?” He cried when talking about his family and friends: his ten-year-old daughter wanting to pray for Blasey Ford, his trail-blazing prosecutor mother, his father’s organisational skills, cringing with his friends at the stories in the news about him and when talking about all the female friends who have shown support for him.
All this led to the highly unusual step of Kavanaugh releasing a statement admitting that he might have been “too emotional at times”. He also wrote an opinion piece in the Wall Street Journal entitled “I am an independent, impartial judge”. Meanwhile, more than 2,400 law professors signed a petition opposing his confirmation which was published in the New York Times and presented to the senate. It stated:
Judicial temperament is one of the most important qualities of a judge … Judge Kavanaugh was repeatedly aggressive with questioners. 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 senators … We are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.
The judicial temperament
So, what is judicial temperament and why do we not want angry judges?
Ever since the Enlightenment, a judicial temperament has been associated with the precise opposite of Kavanaugh’s performance. It is, in short, the absence of emotion. For instance, in 1651, the philosopher Thomas Hobbes wrote that judges should be free “of all fear, anger, hatred and compassion”. A good judge should not feel anything. A good judge should not display any emotion. A good judge should be neutral, impartial and objective.
Such judicial temperament was summed up by Brett Kavanaugh himself in a speech at Columbia Law school in 2015 in which he spoke about how important it is for judges “…to keep our emotions in check. To be calm amidst the storm … to demonstrate civility I think that’s important as well … to help display that you are trying to make the decision impartially and dispassionately, based on the law and not based on your emotions.”
We want to have judges who can keep their emotions in check as we want to assure ourselves that judgements are not made based on personal feelings but rather drawn from the evidence presented in a court of law. We have striven to uphold a dichotomy between rationality and emotionality that ensures this.
In order to uphold this division in the law, legal professionals are expected to follow certain invisible rules which shape their emotions and their interactions. For instance, my study of the Swedish courtroom reveals an overarching emotional regime – the rules of the game – for how to perform one’s role. This regime is aimed at stifling emotions in law and ensuring that criminal trials run smoothly. All legal professionals are expected to only display emotions relevant to their role and display them appropriately and courteously.
Kavanaugh broke these rules during the hearing. He interrupted senators and was perceived by many as discourteous, leading to concerns that this incivility would also spill over into the Supreme Court.
Emotion vs. anger
Of course, judges are people, not robots, and emotions are inevitably part of their daily life. Therefore, just like defence lawyers, a judge’s feelings should be managed in order to make them appropriate to the situation. For instance, judges in Sweden have been shown to attempt to hide displays of irritation during trials in order to appear impartial.
Stifling emotions will not lead to better decision-making. It has been said that emotion, when properly channelled, can help judges make good decisions. But that’s the key in the Kavanaugh case: we want judges who are emotionally well-regulated. They are not without emotions but are engaging with, and reflecting on, their emotions and talking about them when suitable.
Kavanaugh failed at this at the hearing, not only by voicing his feelings in an inappropriate manner, but also by voicing such feelings in a situation where they were not relevant. Kavanaugh’s role in the hearings was as a nominee to the Supreme Court. This was a kind of job interview. He was not there as “a son, a husband and dad” – as he claimed to be in his Wall Street Journal article. He was expected to act as Judge Kavanaugh, not Brett Kavanaugh. While Brett Kavanaugh can let it all hang out – get angry, cry and be petulant – Judge Kavanaugh should be more skilled at managing his emotions.
This is not to say that Judge Kavanaugh is not supposed to get angry. He can. But this judicial anger should be appropriately triggered and displayed, and appropriately aimed – not directed at Democratic senators, the media and his accusers – one of whom he claimed was “a joke”.