The American Bar Association (ABA) evaluates Supreme Court nominations through its Standing Committee on the Federal Judiciary. Earlier this year that committee returned a finding that Brett Kavanaugh was “well qualified” by unanimous vote of the Standing Committee, the same finding it made in 2016 for then-nominee Merrick Garland, President Obama’s nominee for the Supreme Court.

In its description of how the ABA Committee decides, it mentions “judicial temperament” at least 16 times. It never, however, defines the term. I recall, when appointed to a trial court, then-Texas Supreme Court Justice Franklin Spears spoke at my swearing-in ceremony. He spoke of “judicial temperament” and how it is crucial to being a good judge but difficult to define. Back in 1998, Sen. Joe Biden remarked that in “evaluating federal court nominees, he…worries about temperament most of all.” ( Confirmation Hearings on Federal Appointments: 1998 Hearings before the Senate Comm. on the Judiciary, Part 3, 105th Cong. 1033, at 667 (1999) (remarks of Sen. Biden)

It boils down to the question we should ask: Is a nominee “fit” for the job? Will the nominee be a “good judge?” I suggest that we ask ourselves what will the nominee be like? Ask ourselves what about a particular nominee makes him/her particularly suited for the job? The legal commentator, Jeffrey Rosen, wrote that temperament “embraces personality, character, upbringing and education, formative career experiences, work habits, and behavior when interacting with others.” (ROSEN, PERSONALITIES AND RIVALRIES, at 8.)

This is certainly not an exhaustive analysis of “judicial temperament,” but I hope that citizens of our shared nation will ask these basic questions and imagine what kind of judge you would want to listen to cases that will impact your life, your family’s life and the lives of millions of fellow Americans for time to come.

What do we find if we look at the so-called “hearings” of Brett Kavanaugh and particularly analyze the latest when he responded to allegations of sexual misconduct. Do we think that examples of “judicial temperament” were exhibited by his replies, statements and finger-pointing? Do we believe how he interacted with Democratic members of the Judiciary Committee show a personality and character that will be impartial, open-minded, careful, thoughtful and dispassionate when on the Supreme Court?

Of course, the display of Judge Kavanaugh’s emotion was in response to very emotional and personal references. But, I think such a showing of open wounds shines a bright light on the character, disposition and mind-set of this nominee.

I, for one, do not believe he will serve us well. He just does not strike me as having the kind of temperament I want ruling on emotional, passionate and significant cases affecting our nation. The Senate will now determine if a man with this temperament will be elevated to the Supreme Court. If you agree with my brief analysis, I urge you to contact your two senators and ask they not vote for Judge Kavanaugh’s confirmation. 

Jay Miller

Adjunct professor of law at Roger Williams University