This past week, many commentators have extolled the virtues we expect in a woman or man ascending to the bench, especially to the Supreme Court: character, temperament, and outstanding academic accomplishment. The final one is beyond dispute for Brett Kavanaugh, and for nearly all serious contenders for that high office. Commentators tend to group character and temperament together, as if they form a single combined expectation or concept. I’m increasingly persuaded that they do not and that it is critical to consider carefully their separate meanings as well as how the concepts relate.
First, some definitions: Character implies a serious commitment to core principles, to living a life with integrity, and to willingly exhibiting that commitment even if, or when, doing so comes at a personal cost. Persons of character stand for something, or some things, which together exemplify the value system by which they live their lives. Although we may prefer those whose value systems resemble our own, there’s no necessary correspondence. We can recognize persons with whom we hold sharp disagreements as having character in the beliefs they profess, in the lives they lead, and in their willingness to incur those costs necessary to furthering such commitments. Actually incurring costs is unnecessary to character, whereas a willingness to do so is. (Although bragging about a willingness to incur costs does not indicate a lack of character, nor does it, of its own force, indicate possessing it.)
Temperament derives from “temper,” which is itself a Janus word, or “contronym,” a word that conveys two opposing meanings. Temper can equate to rage or fits of anger, as in a temper tantrum. "To temper" can also convey to sooth, to soften the edges, or to bring into line, as in to temper one’s emotions. Temperament, including judicial temperament, crucially embeds both features. Persons, including judges, with notable temperament experience, and sometimes express, the full range of human emotion—sadness, love, hate, indignation, anger, apprehension, anxiety, and so on. Indeed, such capacity can be essential to exhibiting character. Persons with character must experience, and sometimes respond to, events that implicate core values, positively or negatively, and that therefore elicit the full range of emotional response. But temperament implies the capacity to control how one expresses, or channels, emotions, at least in the extreme and especially when necessary to ensure the fairness with which we treat others. A judicial temperament does not preclude anger; it does preclude uncontrolled, or untempered, rage. Temperament is exemplified in the Serenity Prayer, and those who embrace it are likely less angry in general and more engaged, especially with others whose world views they might not share.
Neither character nor temperament are binaries; they are spectral. They are also orthogonal. Individuals can be deficient in, or have more or less of, either. The Kavanaugh hearings have caused this observer to reflect seriously on the relationship between character and temperament. In my own upbringing, character was generally emphasized more so than temperament. We are all products of our environment and upbringing. The hearings caused me to reflect deeply, and now, more than ever, I am persuaded of the critical importance of temperament, not at the expense of character, but to augment character.
In my experience, character without temperament tends to risk self-righteousness, indignation when things don’t go your way, and notably partial world views. Those who bear such traits are prone to divide-and-conquer strategies, including a willingness to bully some into accepting a position, and then claiming a supportive consensus when confronting those who disagree. Those holding this profile tend to supplant reason and persuasion with outbursts, repetition, and even occasional fits of rage. At the Kavanaugh hearings, character without temperament was on full display, including not only by the candidate, but also by some notable Senators. On a smaller scale, this profile can appear, and perhaps be, prone to abusive tendencies; on the national stage, it can devastate.
To be sure, temperament without character is also problematic. It risks leading to endless accommodation, to an unwillingness to incur personal costs to advance important causes, and to prioritizing getting along over furthering clearly identified objectives. This set of traits can lead to institutional paralysis and can be, and often is, disheartening those who are sincerely dedicated to producing serious institutional improvements. In politics, those who acquiesce to the concerns of others are too often viewed as weak, as opposed to prone to allowing temperament to affect how they frame their commitments and treat others who disagree in good faith. Temperament can help to channel character, pushing those who have it to do their best to persuade, or to sometimes accommodate disagreements with moderated policy, or when all else fails, to accept loss with grace, while looking ahead to future opportunities to press forward on other issues. Leaders with a perfect blend of character and temperament are in rare supply.
In my first post on the Kavanaugh hearings, I mentioned that I was committed not to expressing a view of the candidacy, but that I was willing to discuss those aspects in which I could clarify and improve understanding. I tried my best to adhere to this commitment also in my two subsequent posts. My goal, in drawing the distinction, was to avoid creating a classroom environment that seemed partial, and in which those who disagree with me are concerned that I, or others, will judge them based on the views they hold. I truly hope I can continue to create that environment even while relaxing my original commitment. The stakes are enormously high, and I now feel compelled to weigh in and express my views.
I do not know whether Brett Kavanaugh committed the horrific offense that Susan Blasey Ford alleges, or those alleged by other women. But here is what I do know. Dr. Blasey exhibited character and temperament in her testimony. She was not merely credible; she was balanced. She did not present herself as having all the facts, and she did not present all facts as lining up perfectly. There are gaps in her memory, and she, first and foremost, acknowledged them. A woman I greatly respect told me that she was concerned by Dr. Blasey’s testimony about memory formation, a somewhat technical analysis conveyed with scientific terminology, and she thought that this might raise some concerns. I take this seriously. Ultimately, I come out otherwise. I’m 57 years old; Dr. Blasey is about four years my junior. I know that it is terribly challenging for me to convey something, even if it’s personal, that falls squarely within my area of expertise without doing my best to also translate my trained knowledge. I know I don’t always succeed. People with specific areas of expertise do not speak in the same manner as do people who lack that expertise. Upon reflection, I think that this enhances Dr. Blasey’s credibility.
Judge Kavanaugh presented himself as someone whose own sense of character disallows temperament. He was angry, defiant, and oppositional. He not only evaded many questions; he flipped questions on the committee members, including especially asking Senator Amy Klobuchar (D MN), the child of an alcoholic, about her own experience with alcohol and blackouts. Senator Klobuchar, to this observer, revealed herself the rare leader with an outstanding blend of character and temperament. She gently yet persistently pressed forward despite a credible justification for expressing anger. I did not think that Judge Kavanaugh’s apology to her resolved the deeper concern. Judge Kavanaugh embraced a conspiracy theory belied by the facts, and he conveyed throughout, when asked about his alcohol consumption and the possibility of blackouts, that his ample educational accomplishments should negate the need for any such inquiry. That is false. Brilliant and accomplished persons can be prone to addictive or other problematic behaviors, including bursts of uncontrolled rage.
I do not know the truth concerning these allegations. But I do know this. The portrait that Judge Kavanaugh painted of himself, including in his FOX interview and in his more recent testimony, do not align with the portrait of the man I observed. The man I observed frightened me. And certainly, the man I observed exhibited a combination of traits that render him, in my view, unqualified to serve on the nation’s highest court, or, to be honest, any court. I did not expect to say this, and I do not do so lightly.
I think it wise that we will now have, thanks to Senator Jeff Flake (R AZ), an FBI investigation, however limited. But, as for me, I do not need a definitive resolution of Dr. Blasey’s allegations to know how I, were I a member of the Senate, would vote.
I welcome your comments.