Does the Brett Kavanaugh op-ed make its case?

Supreme Court nominee Brett Kavanaugh defended himself in an op-ed in the Wall Street Journal. He says you can trust him to be impartial. Did he undo the damage he did during his hearing last week?

Just a reminder: the purpose of this blog is to reveal what’s really going on with written communications. I’m not here to argue Kavanaugh’s credentials or how senators decide how to vote. The question I’ll address is more specific: did his op-ed do what it was intended to do?

The reason this op-ed exists is that Kavanaugh behaved in a combative manner very unlike a distinguished Supreme Court Justice in his appearance in response to Christine Blasey Ford’s accusations of sexual assault. He was alternately angry and teary-eyed. In response to questions from Senator Amy Klobuchar about whether he ever blacked out from drinking, he asked the Senator, “Have you?” He falsely claimed that he was of legal drinking age when he was in high school. And he called his objectivity into question with comments about “the left” and Democrats, like these:

Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. Shortly after I was nominated, the Democratic Senate leader said he would “oppose me with everything he’s got.” A Democratic senator on this committee publicly referred to me as evil. Evil. Think about that word. And said that those that supported me were “complicit and evil.” Another Democratic senator on this committee said, “Judge Kavanaugh is your worst nightmare.” A former head of the Democratic National Committee said, “Judge Kavanaugh will threaten the lives of millions of Americans for decades to come.”

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

This process has been an absolute disgrace on both sides. But by responding to it as he has, Kavanaugh has called his temperament and his objectivity into question. In response, more than 2,000 law professors signed a letter in the New York Times that read, in part, “Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.”

This is the hole Kavanaugh is attempting to dig himself out of.

The ROAM analysis of Judge Kavanaugh’s op-ed

To determine if any piece of writing is effective, we need to know what it is trying to do. I recommend reviewing four elements: Readers, Objective, Action, and iMpression, which you can remember by the acronym ROAM. Here’s how they apply in the case of this op-ed:

• Readers. Who is the op-ed aimed at? Two groups. First, the broader judicial and legal community, who will be arguing cases in front of Kavanaugh and discussing his opinions. And second, the four senators who remain undecided and may decide the fate of his nomination.
• Objective. What change is the op-ed trying to create? The title of the op-ed is “I Am an Independent, Impartial Judge.” So there’s no mystery here: Kavanaugh seeks to dispel the impression he created that he is a biased hothead, and replace it with the idea that he is an appropriate choice for the Supreme Court.
• Action. Kavanaugh wants the senators to vote for him and the legal community to respect him.
• iMpression. Much more than most pieces of writing, this one must leave a good impression. If the oral testimony was wild, the op-ed must be rational, well-argued, and free from bias.

Did the op-ed do its job?

Let’s take a look at some excerpts from the op-ed:

I Am an Independent, Impartial Judge

Yes, I was emotional last Thursday. I hope everyone can understand I was there as a son, husband and dad.

. . . [A] good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy. As Justice Kennedy has stated, judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution compel the result. Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I do not decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge. . . .

The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player. . . .

I testified before the Judiciary Committee last Thursday to defend my family, my good name and my lifetime of public service. My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me. At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years. . . .

I revere the Constitution. I believe that an independent and impartial judiciary is essential to our constitutional republic. If confirmed by the Senate to serve on the Supreme Court, I will keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.

So, did the op-ed do its job?

Judge Kavanaugh does not in this description apologize for anything he said. He did not apologize in the op-ed for his response to Senator Klobuchar, or for his citation of the Clintons and left-wing opposition groups.

As close as he gets is “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.” There are no specifics. His reasoning behind this statement is that he was there as a son, a husband, and a dad. (Wasn’t he there as a Supreme Court nominee?)

The rest of the op-ed is clear, reasoned, and sober. It basically says, “judge me by my record.” This is fair. But it does not undo the impression left by Kavanaugh’s testimony in the Senate.

Basically, if you feel you did something wrong and were criticized, you have two possible options. You can say “I did this specific thing, and I’m sorry.” Or you can say “I was right. I don’t need to apologize.”

Kavanaugh attempted a third option: “I made mistakes, but I won’t be specific about them, and I had an excuse because I felt threatened and was acting as a father.” This never works. It is not an effective strategy for a corporate executive or, for that matter, for any adult, let alone a nominee for Supreme Court Justice.

You may or may not believe it is fair to condemn Kavanaugh for a woman’s accusations about what he did in high school 36 years ago.

But it is certainly fair to judge him for what he said, and how he said it, in the Senate last week.

Judge Kavanaugh’s op-ed says, basically “I am fair and impartial when I am a judge, but I am combative and emotional when I am criticized, and I react as an angry father, not as a judge.”

If you believe that a judge should be evaluated only on what does on the bench, and not on his other behavior, then you’ll be fine with this.

But if you believe a judge should be evaluated on what he says and how he acts during confirmation hearings, the op-ed fails. It does not undo any of the impressions that Kavanaugh left. It’s a waste of time, and will change nothing.