Accuracy in Media


Allegations of sexual misconduct in his youth were not enough to bring down Justice Brett Kavanaugh before he could be confirmed to the Supreme Court. So now, opponents and their friends in the media have turned to arguing Kavanaugh’s testimony before the Senate Judiciary Committee made him unable to be impartial and unfit to serve on the Court.

Forbes’ piece on the topic – “Chief Justice Roberts Requests Tenth Circuit to Investigate Kavanaugh Ethics Questions” by Steve Denning – begins as a dry recitation of the facts.

Complaints were registered about whether Kavanaugh’s testimony meant he lacked the judicial temperament to serve on the nation’s highest Court.

Chief Justice John Roberts received referred the complaints to the 10th Circuit Court of Appeals in Denver after the D.C. Court of Appeals judge to whom they had been referred said her office should not investigate the claims because Kavanaugh served there before being elevated to the Supreme Court.

Some of the complaints already had been dismissed because they were considered frivolous. But more than a dozen “were substantive enough to warrant investigation by an impartial panel and that they should not be handled by Judge Kavanaugh’s fellow judges in the D.C. Circuit,” a group that includes Merrick Garland, the man President Obama nominated but whose nomination was never seriously considered by the Senate.

The complaints “were not made without legal basis,” Denning wrote, then noted more than 2,400 law professors had signed a statement saying Kavanaugh lacked judicial temperament and that former Supreme Court Justice John Paul Stevens had said Kavanaugh was “not fit for the Supreme Court.”

It explained the judge in Colorado has the option of handling the complaints himself, dismissing them or appointing a committee to review them. Denning then offers his opinion.

“At the Senate Judiciary Committee hearing, Judge Kavanaugh’s behavior [he continues to refer to the justice as ‘Judge Kavanaugh’ although this is not his proper title anymore] was startingly non-judicial in nature,” Denning wrote. “From the outset in his prepared statement, he was angry and confrontational in manner. He was aggrieved and complaining about the situation in which he found himself. He was impolite and challenged the integrity of the Senate questioners and portrayed the hearing in the starkest possible terms.

“Kavanaugh made no apparent effort to bring a lifetime of professional expertise and perspective to bear on the difficult issues under consideration. Instead, he was dismissive of the inquiry and was careless on matters of fact that had been asserted by other potential witnesses on the subject under discussion. He made obfuscating responses to questions about the meaning of words. He made no apparent effort to hold emotions in check and shouted at U.S. Senators and accused them of wrongdoing. He repeatedly sought to shift the attention and blame to others for what was taking place. He resisted further legal inquiry into the issues under discussion. He approached the inquiry with an attitude of entitlement and self-pity. His conduct was remarkably unprofessional.”

“Although Kavanaugh’s behavior was the very opposite of what one hopes for and expects in a judge, it succeeded in its immediate intent of winning the applause of President Trump and his Republican supporters. Yet his performance, accurately satirized on Saturday Night Life, appalled the rest of the country and raised strictly legal questions about his temperament to sit as a judge on any federal court, let alone the Supreme Court.”

Denning said the situation is without precedent because a fellow judge has concluded that misconduct claims warrant review and a former justice has declared his behavior “disqualifying.”

Americans may not be as appalled as Denning says. Republican Senate candidates have made big jumps in the polls in Arizona, North Dakota, Missouri, Tennessee and Indiana, and voter enthusiasm – a category in which Democrats had led throughout the cycle – now appears to about even.  




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