Our Obligatory Take on the Kavanaugh Hearing

Donald Trump said reversal of Row v. Wade, the Supreme Court decision that gives women the right to abortion, "will happen, automatically" if he were to be elected president and get to appoint justices to the high court. That was October 2016 in a Chris Wallace interview. Two years later, he has the fifth vote in place, but only after a bitter fight for a more than controversial nominee whose presence on the court could diminish its legitimacy in the eyes of the public.

Senators on the right decried the Democrats for ruining the life of both Brett Kavanaugh and his family by the last minute sabotage of leaking what Dr. Christine Blasey Ford wanted treated confidentially. Kavanaugh may have figured that, assuming what she said actually happened and though drunk at the time, he had some memory of it, that if it hadn't come to light after 36 years, it never would. So he ran the risk of subjecting himself and his family to the process of discovery.

He must have known that, once he reached the gates of the Supreme Court, there would be a far greater likelihood of people coming forward
with reports of his drinking to the point of incoherence, and that that could lead to other troublesome recollections. And whereas there was no witness to Dr. Ford's allegations save for an accomplice, even if he had been too drunk to remember it, Kavanaugh would certainly have known he was the talk of the Old Campus at Yale back then for shoving his penis at Deborah Ramirez.

Yet he took no steps to head off and defuse these incidents by apologizing and trying to explain them away as the regrettable boorishness of his growing up years long left behind. Instead, in his lust to wear the robe of the highest court, he elected to gamble on the embarrassment and humiliation of his wife and children that exposure would bring. It was he and no one else who decided the tack of denying everything, even to the point of lying under oath before Congress. His choices revealed reasons, apart from Dr. Ford's claims, why many who followed his testimony thought he should not be confirmed.

His choice was to come out swinging in his rebuttal statement in the special hearing after Dr. Ford's testimony. You've probably heard it more than once, but for the record here are his first words:

"My family and my name have been permanently destroyed by vicious and false additional accusations. You [looking at the Democratic side of the dais] have replaced advice and consent with search and destroy. Since my nomination in July, there's been a frenzy on the left to come up with something, anything, to block my confirmation...People have been willing to do anything to make any physical threat against my family, to send any violent e-mail to my wife, to make any kind of allegation against me and against my friends, to blow me up and take me down. You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind. The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment, but at least it was just a good old-fashioned attempt at Borking. Those efforts didn't work. When I did at least OK enough at the hearings that it looked like I might get confirmed, a new tactic was needed. Some of you were lying in wait and had it ready...A long series of false, last-minute smears designed to scare me and drive me out of the process before any hearing occurred...You've tried hard. You've given it your all...But your coordinated and well-funded effort to destroy my good name and destroy my family will not drive me out...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...And as we all know, in the United States political system of the early 2000s, what goes around comes around."

The animus toward Democrats and hints of a left-wing conspiracy, like the one from the right that Hillary Clinton thought stalked her, said that Kavanaugh, hoping to become a judge of the Supreme Court, had already passed judgment and might even have revenge in mind. At this writing, 2,400 law professors had signed a letter saying they did not think so politicized and biased a person as Kavanaugh should be elevated to the Supreme Court. There's the risk that the people will no longer trust the court.

He had tried to convey a very different image in April of 2015:

"You have to check those political allegiances at the door when you become a judge. You have to shed them…It's very important at the outset for a judge who wants to be an umpire to avoid any semblance of that partisanship. That's the first, probably most fundamental thing."

To offset the rancor and bias he exhibited before the committee, Kavanaugh reiterated this in a Wall Street Journal article just before the confirmation vote.

The legal community, including the American Bar Association, was also troubled by what at least could be called mischaracterizations and others that could be called lies. Most were inconsequential but they were stated under oath, before the Congress of the United States, by a man who will now be a Supreme Court Justice.

Four people had signed affidavits or letters saying they did not recall what Dr. Ford alleged (wrote Mark Judge, present in the room according to Ford) or the party itself (which Ford said was unremarkable, with no reason to remember as nothing had happened to them). But Kavanaugh repeatedly said that the statements "refuted" that the incident or the party ever took place. This was distortion and misrepresentation.

He invented anodyne definitions for terms on his yearbook page such as "devil's triangle" and "bouf" quickly contradicted as having sexual meanings in general use. The references to a girl named Renate at a sister school appeared 14 times in the yearbook pages of Kavanaugh and classmates. The mentions were to show affection, said Kavanaugh. "It was not related to sex". But Renate knew what it meant. Apprised now of these yearbook entries, she called them "horrible", "hurtful". A classmate recalled a song Kavanaugh had made up and sang while in the school's hallways that included the lyric, "and you wanna get laid, you can make it with REE NATE". He said that the character in his friend Mark Judge's novel about alcohol and drug abuse named Bart O'Kavanaugh was not he, even though he was nicknamed Bart in high school because of a teacher who had mistaken his first name. Even though he had signed a letter for a beach rental with "Bart". These were lies.

Susan Collins (R-Me), in her 50-minute rationalization for voting for Kavanaugh, made it more comfortable for herself by imagining Kavanaugh might become another Anthony Kennedy, and hoping that there won't be so many 5-4 decisions. She fantasized him as becoming a centrist, paying no attention to his politicized remarks we quoted above that hinted at revenge, nor to his far right judicial record.

But she excoriated whoever leaked the letter that was to have been kept confidential. Had it not been leaked would have been so much more convenient because the public would have learned nothing of Dr. Ford. Before complaining so stridently in behalf of Dr. Ford's privacy, Collins might have noted that the doctor did voluntarily come before the committee, did she not? She could have refused.

Joe Manchin pretended to hold out but, as a Democrat running for re-election in the red state of West Virginia, he didn't want to be seen as the deciding vote, so he waited until after Susan Collins' speech before announcing his vote for Kavanaugh. He said he believes Dr. Ford, believes something surely did happen to her, but doesn't think it was Brett Kavanaugh. Who then, senator? How would you know it was someone else, senator?

Donald Trump Jr. tweeted, "I bet he had another press release ready to go if Collins went the other way". Now that the White House has Manchin's vote, we'll see them attacking him going into the midterms.

The less-than-weeklong FBI investigation was of course a sham, interviewing only nine people. President Trump has said, "I think the FBI should interview anybody they want, within reason", but there seemed to be no reason to contact a great many people because they might have information harmful to Kavanaugh's cause. Deborah Ramirez had supplied a list of 20 to be interviewed; Christine Blasey Ford eight. None were contacted by the FBI. The Senate committee had complained that Dr. Ford had not turned over the notes of her polygraph exam (she had asked for an FBI investigation first). If that was of interest, why didn't the FBI interview the polygrapher? There had been no pressure on Kavanauagh to take a polygraph test. When it was suggested, he had refused.

hail Caesar

Senate Majority Whip Jon Cornyn (R-Tx) has forgotten that the Senate's role is to represent the people who send them to Washington. On the Senate floor he said about the vote to take the nomination to the floor,

"Today was important not only because it allowed us to move forward to conclude this confirmation process, but it was important because it showed the United States Senate will not be intimidated. We will not be bullied by the screams of paid protesters and name-calling by the mob".

Who would conceivably protest unless they were paid? In a democracy we should quietly stay in our homes and accept whatever is decided in the imperium.

Republican senators repeatedly said that six FBI investigations had not turned up the slightest whiff of malefaction on Kavanaugh's part, but made no mention that background checks generally stop at age 18 (and are initially based on references that the person being investigated provides).

Proof enough of the age-18 cutoff is that, had the FBI interviewed classmates, they would surely have turned up his reputation of being "frequently incoherently drunk" (per his freshman year roommate Jamie Roche). They would have quickly found Elizabeth Swisher saying "it's not credible for Judge Kavanaugh to say that he has no memory lapses in the nights he drank to excess" or Lynne Brookes (a registered Republican for what that's worth) saying, "there had to be a number of nights that he could not remember". Drinking to excess, and in the early years of life, is neither a dispositive link to sexual assault nor disqualification from being a justice on the Supreme Court, but the two wrote an op-ed for the Washington Post in which they said, "No one should be able to lie their way onto the Supreme Court". His drinking conduct not showing up at all in the six FBI reports says they weren't looking.

As with Blasey Ford, Deborah Ramirez' account was dismissed by Republicans on the committee because, in the New Yorker article that reported she had her notified Democratic senators, Ramirez admitted she had been drinking (dormmates were playing a drinking game) and she "acknowledged that there are significant gaps in her memories of the evening" of 36 years ago.

Interesting, though, how a bit of information can stand out to make something convincing. Ms Ramirez told The New Yorker that another male student “yelled down the hall, ‘Brett Kavanaugh just put his penis in Debbie’s face’….And I remember hearing and being mortified that this was out there”. Ask yourself, if you were inventing an incident, a fabrication to hurt someone, would you have thought of that imaginative fillip to tack on? That had the ring of truth.

Brett Kavanaugh knew that it had more than the ring of truth. NBC News found that he and his backers had contacted former classmates ahead of the New Yorker story to ask them to go on the record in his defense. He's not on trial, to be sure, but shouldn't the principle against witness tampering hold as a general rule for a future Supreme Court justice? Another Yale classmate has tried to get to the FBI with copies of these hush messages, but has been ignored. Kavanaugh claimed it was Ramirez “calling around to classmates trying to see if they remembered" the incident.

Trump, who lacks any sense of decency or shame, and has been accused by 20-or-so women of offenses ranging from groping to rape, attacked Christine Blasey Ford at a political rally in Mississippi where genuinely deplorable Americans laughed and clapped in the stands behind him. You've heard and seen what he said, but here interspersed is what Dr. Ford had said in the hearings to make him a liar to boot:

"Thirty-six years ago this happened. I had one beer. Right. I had one beer. Well do you think it was..? Nope! It was one beer. Oh good. How did you get home? I don't remember. How did you get there? I don't remember. Where was the place? I don't remember. (Ford: "In a house in the Bethesda area"). How many years ago was it? I don't know. I don't know. I don't know. (Ford: "Thirty-six years"). What neighborhood was it in? I don't know. (Ford: "In the Bethesda area"). Where's the house? I don't know. (Ford: "Somewhere between my house and the country club, in that vicinity"). Upstairs, downstairs, where was it? I don't know. (Ford: "At the top of the stairs. I can sketch a floor plan"). But I had one beer. That's the only thing I remember."