TOPSHOT - US Supreme Court nominee Judge Brett Kavanaugh is sworn in before
testifying at the Senate Judiciary Committee on Capitol Hill in Washington,
DC, on September 27, 2018. - University professor Christine Blasey Ford, 51,
told a tense Senate Judiciary Committee hearing that could make or break
Kavanaugh's nomination she was "100 percent" certain he was the assailant
and it was "absolutely not" a case of mistaken identify. (Photo by Tom
Williams / POOL / AFP) (Photo credit should read TOM WILLIAMS/AFP/Getty
Images)
The Unbearable Dishonesty of Brett Kavanaugh
Briahna Gray, Camille Baker
September 29 2018, 7:00 a.m.
Photo: Tom Williams, Pool/AFP/Getty Images
Many of us who watched Thursday's Senate hearing spent much of the time
cataloguing Supreme Court nominee Brett Kavanaugh's lies. After hours of
testimony, during which Christine Blasey Ford answered questions about her
alleged sexual assault, the financing behind her lie detector test, and
whether she was really afraid of flying, viewers were treated to more hours
of testimony from Kavanaugh, a federal judge who struggled to give a single
straight answer.
Kavanaugh strained credulity when he argued before the Senate Judiciary
Committee that the "Devil's Triangle" - a phrase that appeared on his high
school yearbook page - referred to a drinking game, a definition which,
before Thursday, you'd have a hard time finding anywhere. (It actually
refers to a sex act involving two men and a woman). He also unabashedly
claimed that the term "boof" is a reference to "flatulence," rather than
other butt stuff, and that "ralph," which means to vomit - implicitly from
the overconsumption of alcohol - was a reference to Kavanaugh's weak
stomach.
Kavanaugh claimed references to "Renate Alumnius" in his yearbook were
allusions to his friendship with classmate Renate Schroeder Dolphin, and
not, as many understood, a sexist smear about her promiscuity. (Dolphin told
the New York Times days before the hearing: "I can't begin to comprehend
what goes through the minds of 17-year-old boys who write such things, but
the insinuation is horrible, hurtful and simply untrue.") Kavanaugh even
claimed to not really know Ford at all, despite her testimony that she "went
out with" one of his close friends - someone whose name appeared in his now
notorious calendar 13 times.
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Kavanaugh's choice to lie about things that are easily disproved speaks to a
kind of hubris, or entitlement, that befits someone of his pedigree. He
insinuated that he was of drinking age during the summer of 1982 because,
back then, in Maryland, 18-year-olds could legally imbibe. With artful
wording, he testified that drinking was "legal for seniors," even though it
was decidedly illegal for him - a rising senior who wouldn't turn 18 until
the following year. At other moments, he claimed ignorance about the
consequence of plainly relevant evidence - railing against the suggestion
that his high school yearbook, a totem to debauchery and sexual frustration,
could be relevant to the issue of whether he committed blacked-out sexual
assault in high school. "Have at it, if you want to go through my yearbook,"
he told Sen. Sheldon Whitehouse, D-R.I., with disdain. As though the inquiry
itself was made in bad faith.
In fact, Kavanaugh dissembled about whether he ever drank to excess at all
- an incredible claim given the contents of his yearbook; his friend Mark
Judge's damning memoir, which is titled "Wasted: Tales of a GenX Drunk;" and
the sheer number of times Kavanaugh mentioned "beer" during Thursday's
hearing. Although he admitted in his opening statement that "sometimes I had
too many beers," when pressed on how much was too much, he was evasive
again: "I don't know. You know, we - whatever the chart says, a
blood-alcohol chart."
Kavanaugh's choice to lie about things that are easily disproved speaks to a
kind of hubris that's fitting to someone of his pedigree.
Perhaps most gallingly, when Sen. Amy Klobuchar, D-Minn., asked Kavanaugh
whether he had ever blacked out - just after she empathetically offered that
her own father had struggled with alcoholism - he turned on her and shot
back: "I don't know, have you?" (Kavanaugh later apologized to Klobuchar.)
He even tried to play off Judge's memoir as "fictionalized" - this despite
the book's title page, which reads: "This book is based on actual
experiences." No lie, it seems, is too small for Kavanaugh.
GettyImages-1041759596-1538177880
Christine Blasey Ford takes a break from testifying at a U.S. Senate
Judiciary Committee hearing on Sept. 27, 2018.
Photo: Erin Schaff, Pool/Getty Images
Among the most consequential of Kavanaugh's false claims, and the one Senate
Democrats pushed back against the least, was his assertion that all of the
witnesses who could corroborate Ford's testimony denied it ever happened.
In true Kavanaugh fashion, that's not quite right.
Ford testified that in addition to Kavanaugh, at least four other people
were in the house on the night of the alleged assault: Mark Judge, who Ford
alleges witnessed the assault; and P.J. Smyth, Leland Ingraham Keyser, and
an unnamed boy - all of whom Ford said were downstairs when the alleged
assault occurred.
Nine times during Thursday's hearing, Kavanaugh claimed that four of the
teenagers, including himself, made statements affirming that Ford's version
of events didn't happen.
In an exchange with Sen. Richard Blumenthal, D-Conn., Kavanaugh argued, "But
the core of why we're here is an allegation for which the four witnesses
present have all said it didn't happen." Later, in an change with Sen. Cory
Booker, D-N.J., the nominee claimed, "The witnesses who were there say it
didn't happen."
But, apart from Kavanaugh, who denied the allegations, none of the named
witnesses said the allegations didn't happen. Rather, they stated that they
did not recall the house party, or have personal knowledge of the alleged
sexual assault.
Having "no recollection" of the night in question, or no "knowledge" of the
alleged events, is not the same as saying it didn't happen.
Kavanaugh specifically argued that Judge had "provided sworn statement
saying this didn't happen." But in Judge's letter to the Judiciary
Committee, sent on September 18, he wrote that he has "no memory of this
alleged incident," does "not recall the party described," and "never saw
Brett act in the manner Dr. Ford describes." (On Thursday, after the
conclusion of Kavanaugh's testimony, Judge followed up with a second letter,
stating that he did "never saw Brett act in the manner Dr. Ford describes.")
Moreover, Keyser's statement, issued by her lawyer over the weekend, says
only that she "does not know Mr. Kavanaugh, and she has no recollection of
ever being at a party or gathering where he was present, with, or without,
Dr. Ford." Not that the event "didn't happen."
Further complicating matters, Ford testified that after Keyser submitted her
September 19 statement, she texted Ford "with an apology and good wishes."
And last weekend, the Washington Post reported that Keyser believes Ford's
allegations - hardly the refutation Kavanaugh claimed.
Smyth's letter to the Senate Judiciary Committee stated only that he has no
personal knowledge of what's alleged to have occurred between Kavanaugh and
Ford. "I am issuing this statement," he wrote, "to make it clear to all
involved that I have no knowledge of the party in question; nor do I have
any knowledge of the allegations of improper conduct [Ford] has leveled
against Brett Kavanaugh."
Importantly, having "no recollection" of the night in question, or no
"knowledge" of the alleged events is not the same as saying it didn't happen
- especially since Ford never alleged that anyone but Kavanaugh and Judge
witnessed the assault. So why would a judge, someone presumably familiar
with the implications of what it often means when a witness avers they "do
not recall," so grossly mischaracterize the nature of those statements?
Kavanaugh's apparent willingness to perjure himself over accusations of
underage drinking or sexual innuendo - which alone don't necessarily bear on
his suitability for the bench - is troubling both because of what it implies
about his integrity, and because of what it suggests about his reasoning as
an adjudicator.
How should we judge someone who, during his testimony, repeatedly
misrepresented facts and dissembled when pressed for detail? Should we
understand these moments as lies, or as misinterpretations rooted in
substandard analytical rigor? And given the importance of the position at
hand, which is worse?
The law, in large part, is parsing hairs.
Some of this may seem like parsing hairs, but the law, in large part, is
parsing hairs. Easy questions don't make it to the Supreme Court. Slam-dunk
cases settle out. Outside of constitutional issues, the Supreme Court only
agrees to hear cases that are so subject to interpretation, they've been
inconsistently decided between states or federal circuits. Analytical
precision, therefore, is a big part of the job.
That being the case, it was concerning to hear a federal judge clamor for
"due process" as he sidestepped an opportunity to call witnesses, hear
evidence, or have his name cleared by a federal investigation. How should we
view a federal judge who seems not to understand, or who for political
reasons ignores, that he is not, in fact, on trial, but at a job interview?
Who, either due to a lack of understanding or a surfeit of political
ambition, emotes as though the stakes were that of a criminal proceeding, in
which the high burden of proof would militate in his favor? Do we want a
justice who artfully aims for what's "technically" true (and misses often),
or one whose integrity is, well, unimpeachable?
Senator Ted Cruz, a Republican from Texas, center left, Senate Majority Whip
John Cornyn, a Republican from Texas, center, and Senator Lindsey Graham, a
Republican from South Carolina, center right, gather during a Senate
Judiciary Committee hearing in Washington, D.C., U.S., on Thursday, Sept.
27, 2018. Supreme Court nominee Brett Kavanaugh angrily, tearfully and
"unequivocally" denied sexually assaulting Christine Blasey Ford, after she
told senators at a dramatic hearing that shes "one hundred percent" certain
he is the one who attacked her when they were teenagers. Photographer: Matt
McClain/Pool via Bloomberg
Sen. Ted Cruz, center left, Senate Majority Whip John Cornyn, center, and
Sen. Lindsey Graham, center right, gather during the Senate Judiciary
Committee hearing in Washington, D.C., on Sept. 27, 2018.
Photo: Matt McClain, Pool/Bloomberg/Getty Images
"Due process" means fair treatment under the law - that an accused person
has notice of the proceedings being brought against them and an opportunity
to be heard before the government takes away their life, liberty, or
property. The fundamental goal of due process is to prevent the state from
depriving people of their most precious freedoms. But Kavanaugh isn't
threatened with any of those deprivations. He's not facing jail time, a
fine, or any confiscation of personal goods. The stakes are these: whether
he will go from sitting on the bench of the second most prestigious court in
the land, to the first.
What matters, then, is whether Kavanaugh is of sufficiently fit character to
fairly and ethically interpret the law. Thursday's hearing, perhaps as much
as the allegations against him, has thrown that into serious doubt.
