While there is reason to believe that Brett Kavanaugh’s confirmation to the Supreme Court is now in significant jeopardy, lefties are wise to mentally steel themselves for the more likely outcome that Kavanaugh will be elevated to the bench. A very likely scenario is that the one week band-aid FBI investigation will simply be a summary of known allegations, and the absence of irrefutable “smoking guns” will cause Republicans to smugly conclude that they have now countered every conceivable objection to Kavanaugh, and they will thereby place withering pressure on Murkowski, Flake, and Collins to get in line.
The talking points are predictable. “We cannot ruin this fine public servant’s life on the basis of uncorroborated allegations.” “There is no definitive proof of sexual assault – and therefore there are no grounds for denying Judge Kavanaugh his rightful place on the Supreme Court.” “These politically motivated delaying tactics must end.” Most of the Republican arguments are embroidered variations on a central theme: “This is just a simple case of ‘he said, she said.’”
Those who advance the “he said, she said” argument usually begin by claiming to be deeply sympathetic to the plight of Dr. Ford, but soon turn their palms upward in the universal gesture of resignation while contending that both Dr. Ford and Judge Kavanaugh appeared equally impassioned in their certainty. It is a version of Peter Pan’s argument for the existence of Tinkerbell: if you appear to really, really, really believe something is true, then, by golly, that is the best possible evidence that you must be telling the truth.
In this case, it is literally impossible that both Kavanaugh and Ford are telling the truth. It is hypothetically plausible that both believe they are telling the truth, but that one is wrong, by virtue of a case of mistaken identity or a black-out drunk. While that is possible, neither party has allowed for even the slightest sliver of chance that their recall is anything other than absolute and beyond dispute.
In this matter of grave and consequential importance to future of our nation, the Tinkerbell defense -- “how can we ever reach a fair conclusion?” – is at best a cowardly abdication, and at worst a disingenuous strategic tactic. In a “he said, she said” scenario, the failure to provide definitive proof of guilt is often trumpeted as proof of innocence. In a “he said, she said” confrontation, the contentions of the victim are dismissed in the name of due process. “Innocent until proven guilty!” they shout, which in sexual assault trials overwhelmingly means that the y chromosome wins.
If Republicans are allowed to frame the entire issue in this way, we may as well swear Kavanagh in this afternoon.
However, this is the wrong way to frame the issue.
First, do not let anyone tell you that the case against Brett Kavanaugh must be “proven” at all, let alone proven beyond a reasonable doubt. This is not a criminal trial, and if the outcome goes against him he is not going to jail. This is where the self-righteous cries of “innocent until proven guilty” are so misleading. This is not a criminal trial, it is a job application. The standard here is simple: is he the best person we can find for one of the most important jobs in the United States of America? Employers do not have to prove that a job applicant is guilty of a crime in order to avoid offering him or her a job. They simply decide – for any reason -- that there is a better, more qualified candidate, and move on.
Second: do not conclude that sexual assault must be proven in order to establish disqualifying behavior on Kavanaugh’s part. Certainly we must try to address the question of whether Kavanaugh sexually assaulted Dr. Ford as a teenager. But the assessment of his fitness for the Supreme Court should be informed and can be decided every bit as much by a second, far more accessible question: how has Judge Kavanaugh handled this allegation today, as a grown man, and in the full, current knowledge that he is aspiring to a lifetime position on the highest court in the land?
It is in the hot glare of this second question that we will find the certainty and clarity that is unlikely to emerge from the mysteries of a Bethesda bedroom in the early 1980s.
In the past week, we have witnessed Kavanaugh -- under oath and on national television -- exhibit eight distinct behaviors which each raise grave doubt about whether we have found “the best candidate for the job.” A number of these actions are individually disqualifying. In aggregate, they provide a portrait of a grossly flawed candidate who does not belong on the Supreme Court.
1. Extremist partisan advocacy.
A particularly shocking aspect of Judge Kavanaugh’s testimony was his willingness to engage in partisan conspiracy theories from the soap box of a hearing about his own alleged criminal sexual assault. It appeared that his strategy for convincing us that he was not a rapist involved assuming the persona of one of those fringe right-wing wing-nuts who rants about the apocalypse, the Clintons, and the Second Amendment on a podcast that has been banned from Twitter.
For Brett Kavanaugh to implicitly offer the theory that Dr. Ford hoaxed-up her allegation of sexual assault because she was pushed to do so by the Clintons in a rage revenge against Bill’s impeachment and Hillary’s election loss is the behavior of a Rod Serling cast member.
The bile that Kavanaugh openly spat at the Democratic Senators revealed a seething anger at his political opposition, and included a bare-faced accusation that the entire motivation for the hearing was a "political hit job." Kavanaugh seemed fully comfortable revealing his loathing for the entire Democratic party and his belief that every aspect of this sexual assault investigation was politically motivated.
It is inconceivable that the level of rage the Judge openly conveyed will not be translated into biased judicial rulings.
Kavanaugh’s open declaration of partisan warfare is inherently disqualifying.
2. Belligerence and inappropriate temperament.
When trying to assess whether a person has lied or is currently lying, a helpful clue is how calm, measured, and poised they remain under intense pressure. In a particularly uncomfortable moment, Senator Amy Klobuchar of Minnesota firmly but deferentially asked Brett Kavanaugh about the issue of excessive drinking that had been the leitmotif of his testimony. Kavanaugh, who appeared to have spent much of his time under oath auditioning for a role as a Budweiser Clydesdale (“I like beer!”), grew beet-red and went straight up Klobuchar’s nose with a hot poker, turning the question on her. "You're asking about blackout. I don't know, have you?" Unabashed, he brazenly repeated his baseless challenge.
A brief break ensued. My hunch is that a well-meaning advisor coached Kavanaugh that his aggressive verbal abuse of a highly respected female senator may not have been the card to lead when defending himself against allegations of sexual assault. When the hearing was reconvened, Kavanaugh apologized to Klobuchar, an olive branch borne of expediency that I’m going to bet the judge did not extend to Dr. Christine Blasey Ford.
It’s been widely reported that Kavanaugh felt under great pressure to attempt to undo the damage of his flaccid and scripted Fox News interview by channeling his inner Trump, brandishing his victimization like an over-the-counter testosterone supplement.
But Kavanaugh’s abusive belligerence to the Democratic Senators had the ironic effect of reinforcing the notion that he could just well be exactly the type of guy who explodes in a temper tantrum while drinking and does things like, uh,...
3. Evasiveness and filibustering to avoid tough questions.
One clue that an individual has a tenuous relationship with veracity is when they appear to be doing everything they can to avoid answering questions.
In the Senate Judicial Committee hearings, each Senator was tasked with getting to the bottom of this sordid, complex, and emotionally fraught matter, and each was allotted the luxury of five whole minutes to unearth the truth. Repeatedly throughout the day, Kavanaugh undermined the proceedings by insisting on providing long, rambling, irrelevant answers that would consume the five minutes of Democratic questioning. Fluffing up his responses with jars of scamburger helper, Kavanaugh began his answers by recalling his own personal Paleozoic Era and inching forward in weekly increments. Like an eighth grader who had only read the first two chapters when the book report was due, Kavanaugh rope-a-doped and filibustered with the obvious intent of running down the five minute clock without ever actually answering questions. He accomplished this goal with about as much panache and success as Joe Pisarcik.
Kavanaugh’s tactic was as transparent, buffoonish, and feckless as a Sean Spicer crowd estimate, particularly in contrast to the countless number of times that Dr. Ford answered a question with a brisk and assured “yes” or “no.”
4. The stench of entitlement.
As a six foot white guy who went to a precious liberal arts college that routinely takes gold in the U.S. News & World Report Olympics, I have come to realize that I should check my privilege about as regularly as I breathe. Taking credit for what one has been given is courting trouble. But using what one has been given as a reason why one should be above reproach is to supremely court disaster.
Often in these hearings, Brett Kavanaugh acted as if the central issue was not an allegation of violent sexual assault, but whether a gilded resume ought not be the overriding factor in determining guilt or innocence. Repeatedly throughout the afternoon, Kavanaugh flew off on the wings of tangents to recount his prowess on the sports field, his class rank, and his admission to Yale Law School, which, he noted -- without even a soupçon of irony – accepted him even though he had “no connections.” All hail Brett of the bootstraps! To climb every mountain, ford every stream, follow every rainbow – all with no connections at Yale Law School!
The embarrassing boast-fest aside, the disqualifying component of this behavior is that Kavanaugh actually seemed to be arguing that his sterling resume should be taken as proof of innocence. The essential hypothesis he advanced is that no one could possibly have strayed into drunkenness or sexually predatory behavior and still manage to ace the SATs, ACTs, and the LSATs. The “dismiss these charges because I got into Yale Law School” argument would probably not fly at any number of places, including, rather pointedly, Yale Law School. Hey, Brett: this would have been an excellent time to give that Lux et Veritas thing a try.
5. Failing to watch the testimony of your accuser.
Some would say this is a small thing, or that Kavanaugh is to be excused because he was undoubtedly exclusively focused on preparation for his own testimony.
But Brett Kavanaugh did not even watch the testimony of Dr. Ford. Not one second of it.
If someone had accused me of a brutal sexual assault in high school and was about to testify on national television about what I had supposedly done, and I knew that I was innocent, I am quite certain that I would have studied every single second of that television screen for as long as that woman spoke.
I would want to know how she answered every question. And if I were a lawyer – say, a really good lawyer, good enough to be on the Supreme Court -- I would be hyper-focused to find any disconnect, any obvious untruth, any assertion that pointed toward someone else – anything and everything that could allow me to go on national television an hour later and provide exculpatory evidence.
Perhaps Brett Kavanaugh had an inkling that Dr. Ford was not going to offer anything that he could use to argue for his innocence.
It is amazing that Brett Kavanaugh did not want to face his accuser. Perhaps more to the point, it is shocking that an attorney would not bother to watch the testimony of his opponent’s star witness.
Something in me suspects that Kavanaugh knew that if he spent the morning looking into the honest face of the woman he violated in high school, he would have a hard time summoning the macho outrage he would need to pull off the theatrical performance of his life just a few short hours later.
6. The simplist way lie detectors reveal liars is in offering people the option to use them.
Judge Kavanaugh, your refusal to take a lie detector test makes us think that we have already detected the liar.
I know what you are going to say: lie detectors are not admissible as evidence in criminal trials.
I have to keep reminding all you Republicans of a crucial fact: this is not a criminal trial.
This is a job interview.
And if you were applying for jobs at certain levels requiring security clearance in the United States Defense Department or at an intelligence agency, you would be required to take a lie detector test.
Last time I looked, the government job you are applying for is at a higher pay grade than a Farsi translator with a Ph.D. in Linguistics from M.I.T.
The fact that you have not volunteered to take a lie detector test tells me that you are not as confident in your version of "he said, she said" as the "she" who has already taken a lie detector test.
7. Not inviting an F.B.I. investigation makes you appear frightened of what they would find.
Senators Durban and Harris asked you point-blank whether you would support an F.B.I. investigation to clear your good name.
Time after time after time, you evaded, eluded, and ultimately sat tongue-tied in silence when you could no longer keep your head in the sand.
It is telling that when a man who aspires to sit at the pinnacle of our judicial system is offered the full investigative power of that very judicial system to clear his good name, he turns it down, flat.
Brett, you could have come up with something. I promise you: it would have pleased the Big Orange if you’d repeated that cute “advise and consent has become search and destroy” meme you tossed out in your opening statement to argue that the F.B.I. has biased agents like Peter Strzok who would stop at nothing to envelope you in a cloud of suspicion. It probably would not have been a good thing on the long term for a Supreme Court Justice (or a President) to give future defendants expert witness testimony about the flaws of the F.B.I, but maybe it would have played better than your stone-cold frightened silence. Who knows?
But you just sat there with nothing to say, suffering from a low-T episode at precisely the wrong moment, looking to all the world to be a scared little entitled kid whose parents can't bail him out of his latest mess.
Scared of the Senators. Scared of the President. Scared of the F.B.I.
And absolutely terrified of a gentle middle-aged woman with the resolve to speak the truth.
8. White lies matter.
Mr. Kavanaugh, you were under oath on Thursday.
Oath means “the truth, the whole truth, and nothing but the truth.”
Even when it is embarrassing.
It is embarrassing that you littered your high school yearbook with juvenile code for alleged sexual exploits that seem calculated to make you appear more experienced, more macho, and more of a bad boy than you ever dreamed of being.
And you are not fooling us.
“Boofing” is not farting.
A “Devil’s Triangle” is not a drinking game.
And “Renate Alumnius” does not mean that you think she’s a heckuva swell girl.
Those are all lies. Lies told under oath.
Oh, sure Brett… you can say that those are cute little white lies, the kind of lie you feel you can justify because they aren’t really about the essential issue of whether or not you assaulted Dr. Ford.
But you know what, Judge Kavanaugh? White lies matter.
Under oath, lies don’t have a color.
Under oath, lies are like Supreme Court confirmations. They are completely binary. Yes or no. They happen or they don’t. They are or they are not. There is no white lie and no gray area.
They are keenly relevant as commentary on character. Hey, if you lie about the small stuff, that's a pretty darn good indicator that you'll go for it on the big stuff, too.
Like an allegation of attempted rape.
You told a white lie under oath? There’s another word for that. Perjury. And there is also another word for perjury. Felony. Guess what that one translates to? Disqualification.
I can actually believe that you thought you would just tell white lies because it would have been too humiliating to you to explain to Senator Whitehouse exactly what those terms mean. It would mean that your charming ten year old daughter Liza would someday learn that her father publicly humiliated a poor young girl named Renate by claiming her as a sexual conquest.
Man up, Brett.
Better yet, woman up.
Tell the truth no matter how personally painful it is.
Like Dr. Ford did.
If you had told the truth, maybe little Liza would someday be able to proudly say that her Dad is a Justice on the United States Supreme Court.
We may never know what happened in an upstairs bedroom across from a bathroom in a house in Bethesda, Maryland on a summer day in 1982. We may never know whether a seventeen year old boy named Brett tried to rape a fifteen year old girl named Christine.
But we actually no longer need to know any of that to know that you are not qualified for the Supreme Court.
Because we know all we need to know to make that decision based on the actions of a fifty-three year-old Brett Kavanaugh in a September week in 2018.
We found eight reasons in the course of one disgraceful afternoon.
But hey, maybe you still think that this should all come down to “he said, she said.”
Maybe you think if it was all just “he said, she said,” you’d still squeak through.
Brett, maybe not. She passed the lie detector test, and you lied under oath.
It is pretty simple, Brett.
It's just a simple case of "she said, and he lies."
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