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By Nancy Gertner

I was in a taxi enroute to the O’Hare Airport in Chicago Thursday afternoon. I had watched Christine Blasey Ford testimony in the morning. I was extraordinarily moved; I believed her, plain and simple. I thought that at the very least, there would be no rush to judgment on the part of the Senate — no confirmation vote until all of the circumstances of her accusation and others had been investigated. I asked the driver to turn to a station broadcasting the confirmation hearings so that I could hear Judge Brett Kavanaugh’s response. At first, I thought that the driver had turned to the wrong station. The man speaking sounded like a talk radio host, angry, spewing heated rhetoric about the Democrats, even the Clintons, referring to bizarre left wing conspiracy theories. I then realized that this was not a shock jock; this was Judge Kavanaugh.

Kavanaugh’s performance at that hearing alone should be disqualifying. His behavior and affect, the pointed and partisan nature of his accusations, resonated with this President’s incivility and name calling. He was consumed with rage at his Democrat interlocutors, fairly spitting out his answers. He treated them with disrespect, interrupting, repeating his talking points rather than answering question. When Senator Patrick Leahy of Vermont asked him if he would call for an FBI investigation, to make the process more fair, he did not answer. He showed himself to be a zealot determined to get on the high court, at all costs.

With this performance, Kavanaugh became Trump’s version of what a judge should be, not unlike Trump’s version of what his attorney general should be. They were both supposed to be Trump partisans, not neutrals, and above all, ready for central casting. Trump reportedly was unhappy with Kavanaugh’s performance on “Fox News” several evenings before; Kavanaugh was “wooden,” he said, insufficiently assertive. So Kavanaugh changed his tune. Now, fully a Trump judge, he was playing to his base — President Trump. And it worked. Trump tweeted minutes after the hearing completed: ”Judge Kavanaugh showed America exactly why I nominated him.”

I had never heard a judge speak like that to a public audience, let alone during a confirmation hearing.

A judge is not only supposed to be unbiased, he is also to reflect the appearance of impartiality, avoiding situations in which reasonable people can believe he is partisan. How can Kavanaugh possibly meet that requirement given what we all saw on Thursday?

Consider this: Kavanaugh is confirmed is immediately sworn in by Justice John Roberts in the chambers of the Supreme Court. And on the docket is a challenge to gerrymandering brought by Democrats in one state; or another involving accusations of voter suppression against Republicans in a swing state. What about the cases that directly challenge presidential power, like the enforceability of a subpoena brought by special counsel Robert Mueller against Trump in the Russia investigation? How can he even appear remotely impartial in these cases when his presentation so fully and completely reflected the Republican party’s rage? He cannot. He is not.

Kavanaugh will not get his reputation back whether or not he is confirmed. These accusations, that performance, scotched all such hopes. But if he cared about the Supreme Court as an institution, he would withdraw now. Of course he will not; he wants this position, no matter what the cost, so stunning is his ambition. His body of work has been the functional equivalent of a 20-year application. He was a zealot in the Kenneth Starr investigation of President Bill Clinton, and then, when it suited him to be more neutral, wrote a law review article changing his tune; no president should be subject to the treatment, the very treatment he visited on Clinton. Serious issues were raised with respect to his truthfulness in his confirmation hearings concerning his role in the Bush administration. 

He categorically denied Ford’s accusations again — even when he and others confirm at least part of it. He was the thinly-disguised Bart O’Kavanaugh in Mark Judge’s book, “Wasted,’’ passed out in a car. He joined a Yale fraternity famous for its wild drunken parties. At Yale Law School, my alma mater, he touted the all night parties, broken tables, etc. most recently in a 2014 speech. It was not such a leap to Ford’s account of drunken adolescents preying on a younger woman.

I return to where I started. Our reality star president liked this performance. Judging is not a “performance,” but being a Trump judge is.