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Retired Judge John Paul Stevens did not like what he saw. The jury of the American Bar Association, which for the first time granted the US Court of Appeals Judge Brett M. Kavanaugh, his highest approval for his election to the Supreme Court – announced Friday that he had doubts.
And Senate Democrats have said – putting aside other allegations and concerns about Kavanaugh pushing the Supreme Court too far to the right – the judge's angry and confrontational testimony before the Senate Judiciary Committee last week weakens him. .
While Kavanaugh's confirmation seemed almost certain on Friday, questions arose about his judicial temperament, a hard-to-define term that took on enormous meaning in the deadly battle around his appointment.
The concept of judicial temperament is considered important to assure the public that a judge is a neutral referee, someone who has an open mind and who has no program. Non-partisanship would seem to be a necessary element, as in a court of appeal such as the Supreme Court, collegiality and negotiation skills that persuade others to form a majority to achieve a result.
But if the judicial temperament is sufficient to persuade some to support or oppose a judge, its exact quality is difficult to define.
"The judicial temperament is both what we think all judges should have and the only thing that no one can pinpoint," writes Terry A. Maroney, a law professor at Vanderbilt, in an upcoming article on subject.
"Being perceived as having a good temperament can get confirmation or elevation from a judge; the opposite can stop her at the door or, if she is already on duty, have her reprimanded or dismissed from the bench. "
In other words, people seem to think about it when they see it, and those who evaluate Kavanaugh say it was missing when he appeared on Sept. 27, when he responded to allegations of teenage sexual assault and excessive consumption of alcohol.
[Supreme Court nominee insists on his innocence, calls process ‘national disgrace’]
"We saw a man filled with anger and aggression," said Senator Dianne Feinstein (D-Calif.) Explaining Friday before the Senate why she was opposed to Kavanaugh.
"Judge Kavanaugh raised his voice, he interrupted the senators. He accused the Democrats of "staying in the queue" and replacing "advice and consent with search and destruction". . . This behavior has revealed an unworthy hostility and belligerence on the part of someone seeking to be brought up in the United States Supreme Court. "
His supporters ask: What can we expect from another man whose career was at stake? "Judge Kavanaugh has been publicly charged with a crime, and his reputation and livelihood were at stake," said Senate Judiciary Committee Chair Charles E. Grassley (R-Iowa) on Friday.
But Kavanaugh himself seemed to recognize that being in the Senate could undermine his 12 years as a judge at the District Court of Appeals in the United States. He made the very unusual decision of writing an editorial in the Wall Street Journal that was both part of the defense and an apology.
"I know my tone was high and I said a few things that I should not have said," wrote Kavanaugh. "I hope everyone will understand that I was there as a son, husband and father. I have testified with five people in mind: my mother, my father, my wife and especially my daughters ".
He promised that it would not happen again: "In the future, you can count on me to be the same kind of judge and person I have been throughout my 28-year legal career: hard-working zealous, open minded, independent and dedicated to the Constitution and the public good. "
[Kavanaugh: I said things I ‘should not have said’ during Senate testimony]
Maroney said that being non-partisan was related to, but outside of his definition of the judicial temperament.
But that's what prompted Stevens to change his mind about Kavanaugh.
At a protest in front of retirees in Boca Raton, Florida on Thursday, Stevens said he thought enough of the judge's views to include him in a book. But he said he agreed with some critics that some of Kavanaugh's comments at the hearing were so vivid that they could justify a challenge if some groups – Stevens did not specify which ones – were before the Supreme Court.
"They suggest that he has demonstrated potential bias involving enough potential litigants in court that he may not be able to assume all of his responsibilities," Stevens said at the time. an address at the event. "And I think this criticism has merit and that senators should really pay attention."
"For the sake of the court," he said, "it's not healthy to have a new judge who can only do part-time work."
Others said Kavanaugh's comments were more than impulsive indignation.
"Rather than strive, like most of the rest, to dissipate the partisan atmosphere, Judge Kavanaugh chose to throw the essence equivalent on his testimony," he said. Harvard Law Professor Richard Lazarus, former Supreme Court Institute of the Georgetown Law Center. an email.
"Perhaps out of uncontrolled fury at the nature of the accusations that are addressed to him. Or perhaps on the basis of a political calculation that it was the best, if not the only, to get support, including that of the corrupt president who appointed him, needed to maximize his chances of confirmation. I do not know who it was.
Benjamin Wittes, a senior member of the Brookings Institution, who said he had been admiring Kavanaugh for a long time, said that the point of view he had obtained at the hearing had partly convinced him that the judge did not should not be confirmed.
Earlier, Kavanaugh described a good judge as "a referee – a neutral and impartial referee who does not favor any party or politics," wrote Wittes in The Atlantic, adding, "Brett Kavanaugh was very different at the same time. Thursday hearing. "
Kavanaugh's warnings that the charges against him were motivated by the inability of the Democrats to be elected after the election of President Trump, and that "what happens around you is too much, was too much, wrote Wittes. "Kavanaugh has gone through lines that, in my opinion, still have to be respected by justice."
Senator Joe Manchin III (West Virginia), the only Democrat to be committed to voting for Kavanaugh, has been shown more lenient.
"It was a wild and wooly audition last week," Manchin told the press, accusing Kavanaugh of committing terrible acts.
Manchin saw a "father of two young girls fighting, saying," This is not the father I am, it is not the person I am. "
Some law academics have agreed with Manchin.
Eugene Volokh, a law professor at UCLA and head of a legal blog called Volokh Conspiracy, said that Kavanaugh's reaction was understandable and needed to be placed in the context of the judge's reputation.
"I can not imagine how I would stay calm in such a situation, even though I was (like Judge Kavanaugh) a judge who had a reputation for calm and politeness for a decade during ordinary work (including work controversial) of a court, "wrote Volokh.
But Volokh was aware that many other law professors did not agree.
More than 2,400 of them, from across the country, signed an open letter to the Senate stating that they had united as law professors and specialists in judicial institutions, believing that Judge Kavanaugh did not Had not shown the impartiality and judicial temperament required sit at the highest court of our country. "
Mike DeBonis contributed to this report.
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