Temperament & the Supreme Court Justices  – By Yvonne Sam

Why the detractory brouhaha about Kavanaugh’s temperament when the Bench has seated others of worse ilk? History reveals a different story.

Listening to Senator after senator and the media ramble on about the absent fitness of Judge Brent Kavanaugh for the Supreme Court, one would get the impression that Justices of the U. S Supreme Court had been warm, affable, even tempered individuals.

Taking pride of place in the heated debate about the likely confirmation of Judge Kavanaugh was the question of temperament.  Pushed aside was the impropriety issue. The basic contention lay in the fact that by elevating his voice during the final part of his confirmation hearing , impertinently interrupting, and accosting senators and characterizing  the charges against him as politically motivated, the nominee presented himself as having a character unsuited  for U. S Supreme Court justice. The general impression conveyed was that such a case was totally new not déjà vu.    

Several law professors signed a letter, published in the New York Times and addressed to the

  1. S Senate  at variance with the confirmation on these grounds . They cited the Congressional Research Service as saying the following: “a judge requires ‘a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.'” https://www.nytimes.com/interactive/2018/10/03/opinion/kavanaugh-law-professors-letter.html. Even so, for the records I am personally leery of the temperament argument, at least when taken aside. Granted in no way, shape or form did the Judge’s disposition at the hearing last week appear normal or respectable. I was genuinely aghast when he remonstrated Democratic Senator Amy Klobuchar, asking her time and time again if she had ever blacked out from drinking. The temperament argument was such a big prolonged hypocritical issue, as several of the same U. S Supreme Court justices were known for disastrously bad and highly unjudicial personalities.

Author and columnist Max Lerner with a reputation as a thoughtful commentator on the Supreme Court in the 1930s and continued such work to his death in 1992,  makes reference in his book “Nine Scorpions in a Bottle,– Great Judges and Cases of the Supreme Court”, to Justices Hugo Black, Democrat who sat on the Supreme Court from 1937-1971, Robert Jackson, Democrat  from 1941-1954, William Douglas , Democrat from 1939-1975 and Felix Frankfurter and Independent from 1939-1962  as being nasty, vindictive, backbiting, ambitious and partisan.

https://www.amazon.com/Nine-Scorpions-Bottle-Judges-Supreme/dp/1628727241

They are referred to the court on which they sat as “nine scorpions in a bottle”.  Scorpions are not known or recognized for their courtesy, fairness or constraint.  Notwithstanding the known negative attributes, these four judges all made historically significant contributions to constitutional law and the court.  In this controversy against confirmation, the issue of temperament should be as categorical and different from the accusations that Judge Kavanaugh

deluded the Senate Judiciary Committee or committed sexual assault as a teenager. For the temperament argument against Kavanaugh to stand by itself,  senators should be able to say that they would support the judge if only he had behaved in a different manner at his confirmation hearing-even if  the core of his responses were the same as the ones he gave.  That is exactly the point I am addressing.

Here are the imprudent justices. The first nominated was Hugo Black a member of the Klu Klux Klan, elected to the Senate in 1926 with stunning Klan support. Once elected he wrote a secret letter of resignation to the Klan’s Grand Dragon, sealed in an envelope to be used in case of emergency.  He signed it I.T.S.U.B, Klan lingo for, in the sacred, unfailing bond.  Nominated to the court in 1937 by Franklin Roosevelt, rumors of his Klan membership quickly disseminated. Black told his fellow senators that since coming to the Senate, he had severed ties with the Klan, and further added for good measure that any senator concerned about his Klan membership, the senator should vote against his confirmation. Black was nominated on Friday August 12 and confirmed on Wednesday August 17 by a vote of 63 to 16 with 17 abstentions. A few days later resourceful journalists turned up the proof of Black’s Klan membership. https://www.smithsonianmag.com/smart-news/supreme-court-justice-was-kkk-member-180962254/

Black’s temperament brought him into a very unjudicial battle with Robert Jackson, another Roosevelt nominee who was preoccupied with becoming Chief Justice. In the spring of 1945, Black sought revenge on Jackson due to a case where Jackson was of the belief that Black had written an opinion that showed favoritism. While Judge Jackson was away in Nuremberg prosecuting Nazi war crimes, Black sought retaliation. The Chief Justice position became vacant. Black went to then President Harry Truman and told him that both he and Judge Douglas would resign if Jackson was appointed Chief Justice. President Truman decided not to select Jackson. For his part, Jackson went berserk. After first privately intimidating Truman, he dispatched a letter to major newspapers delineating what Black had said to him in conference and accusing Black of sabotaging his chief justice ambitions.  The very act in itself was a classic demonstration of the lack of judicial temperament. www.cnn.com/2010/POLITICS/12/14/FDR.supremecourt/index.html

Judge William Douglas was even worse than Black or Jackson.  He was married four times, each occasion to progressively younger women.  As the alimony payments mounted, he ended up depending on secret payments from a disreputable business man. He called his law clerks the “lowest form of human life”.  https://www.nytimes.com/2009/06/11/opinion/11feldman.html

It was rumoured that Douglas loved humanity and hated people, in so much that he nicknamed the Austrian born Jewish justice “Der Fuhrer” during the Holocaust. Justice Frankfurter called Justice Douglas, “one of the two completely evil men I have ever met”. Frankfurter took everything personally, and when he was not in agreement with a dissent from Justice Black , he would summon Black’s law clerk into his office, throw the dissent across the desk scattering the pages on the floor and  dismissing the clerk with the words ,” At Yale they call this scholarship”

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2985&context=cklawreview

The final point to be made here, and one which America should bear in mind prior to moralizing about the personalities that a judge should possess, is that in this moment temperament is not destiny  or finality and that judicial greatness is not synonymous with calm and courtesy.  Determined by the lasting effect on both country and constitution, most of the greatest justices have been haughty, socially alienated, arrogant and downright mean. Although Roosevelt’s appointees had impious personal differences, no doubt exists that personality sharpened each judge’s world view, which in turn changed the nation for good, as in the case of desegregation. In the end to be a great justice you do not need to possess a judicial temperament.

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