The temperament question has come to the heated debate about the confirmation of Judge Brett Kavanaugh. The basic idea is that by raising his voice during the final part of his confirmation hearing, discourteously interrupting and confronting senators, and depicting the charges against him as politically motivated, the nominee showed himself to have a character not suitable for a U.S. Supreme Court justice.
More than 1,000 of my law professor colleagues have signed a letter, addressed to the U.S. Senate and published by the New York Times, opposing Kavanaugh’s confirmation on these grounds. They cite the Congressional Research Service as saying, “a judge requires ‘a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.’”
I am nevertheless skeptical of the temperament argument, at least when taken in isolation.
It’s not that Kavanaugh’s manner and tactics at the hearing last week seemed normal or acceptable. I was genuinely astonished, especially when he went after Democratic Senator Amy Klobuchar, asking her repeatedly if she had ever blacked out from drinking.
Rather, what I find doubtful about the temperament argument is that several of the greatest Supreme Court justices had disastrously bad, highly unjudicial temperaments. Collectively and individually, Justices Hugo Black, Robert Jackson, William O. Douglas and Felix Frankfurter were nasty, vindictive, backbiting, ambitious and partisan.
A contemporary observer referred to the court on which they sat as “nine scorpions in a bottle.” Scorpions aren’t known for their courtesy or judiciousness.
Yet these four justices all made historically significant contributions to constitutional law and the court. Without them, our living Constitution would be considerably poorer and weaker.
In this argument against confirmation, temperament is supposed to be distinct and different from the allegations that Kavanaugh misled the Senate Judiciary Committee or committed sexual assault as a teenager.
In principle, for the temperament argument against him to stand on its own, someone should be able to say that she would support Kavanaugh if only he had behaved differently at his confirmation hearing — even if the substance of his answers was the same as the ones he gave. That’s the argument I’m addressing.
Now to the great, injudicious justices.
The first nominated was Black, then a senator and described at the time as the most radical member of that chamber. Black had been a member of the Ku Klux Klan. He joined the organization as an aspiring politician with the specific goal of connecting himself to a statewide political network in Alabama. He was elected to the Senate in 1926 with overwhelming Klan support. Once elected, Black wrote a secret letter of resignation to the Klan’s Grand Dragon in the state, sealed in an envelope to be used in case of emergency. He signed it “I.T.S.U.B.,” Klan jargon for “in the sacred, unfailing bond.”
When Roosevelt nominated Black to the court in 1937, rumors of his Klan membership quickly spread. Black told reporters who asked that he had no comment. He told his fellow senators that he “had had no affiliations of any kind with the Klan since I had come to the Senate.” And he added for good measure that if any senator was concerned about his Klan membership, the senator should vote against his confirmation.
In those very different days, Black was nominated on Friday, Aug. 12, and confirmed on Wednesday, Aug. 17, by a vote of 63 to 16 with 17 abstentions. A few days later, enterprising journalists turned up the proof of Black’s Klan membership.
Black’s temperament was also affected by an extreme sense of honor that brought him into a very unjudicial battle with Justice Robert Jackson, another Roosevelt nominee who was obsessed with becoming chief justice.
In the spring of 1945, Jackson and Black got into a fight over an opinion that Black wrote in a case that had been argued before the court by his friend and former law partner. Jackson thought Black had quickly written an opinion that favored his friend, and he wrote a dissent depicting the decision as an “extreme exertion of power” that was not “supported or explained by either the statute or the record.” When the losing side asked the court to rehear the case because Black should have recused himself, Jackson threatened to write an opinion stating that it was not up to him to decide whether Black should have recused.
In the Supreme Court’s ultra-private conference room, Black confronted Jackson and told him that any such statement by him “would be a declaration of war.” Jackson ignored him.
Then, when Jackson was away in Nuremberg prosecuting Nazi war crimes, Black got his revenge. The chief justice position came open. Black went to President Harry Truman and told him he and Douglas would resign if Jackson became chief. Truman decided not to choose Jackson.
For his part, Jackson went crazy. After first threatening Truman privately, he sent a letter to major newspapers detailing what Black had said to him in conference and accusing Black of torpedoing his chief justice ambitions. The act was itself a stunning demonstration of the lack of judicial temperament.
Douglas was probably worse than Black or Jackson. He was married four times, each time to progressively younger women. As the alimonies added up, he needed cash, and ended up relying on secret payments from a shady businessman. People said that Douglas loved humanity and hated people. Such was his obsessive hatred of Frankfurter that he dubbed the Austrian-born Jewish justice “Der Fuhrer” — during the Holocaust.
The point isn’t to say that a bad temperament is a good thing in a judge. It’s rather to remember in this difficult moment that temperament isn’t destiny – and that judicial greatness isn’t always the same thing as calm and courtesy.
Noah Feldman can be reached at nfeldman7@bloomberg.net