DOES KAVANAUGH BELONG ON THE SUPREME COURT?

by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)

Brett Kavanaugh is currently being considered for a position on the Supreme Court of the United States. The Senate, charged by the Constitution with “advice and consent” in the selection, has spent some time investigating and questioning him. As has become common in the course of these confirmation actions, politics has taken the main role. Of course, no one wants to admit that politics is involved in anything going on in Congress, so the political fight plays out in another form. In this case, the substitute for political dispute is the response to charges by Christine Blasey-Ford that Kavanaugh sexually assaulted her over 30 years ago, when they were both in high school. The particulars of that are well-known, and I will not get into them here.

To me, whether Kavanaugh did or did not assault Ford in high school in the early 1980s is uncertain. I know whose testimony is more believable, but I don’t know what happened. I wasn’t there.

In any case, “innocent until proven guilty” or any other such legal principle is immaterial. “Due process” does not apply here. This is not a criminal trial or a forfeiture hearing. This is a glorified job interview. The judge’s testimony must be examined in the light of the question, “Should this candidate be approved for this job?”

I made a lot of hiring decisions in the course of my career, and I would not have hired this guy based on this interview. I would have decided that way based not on whether he might have done something evil as a high schooler, but on his response to questioning about it. To put it bluntly, he lied. And, as Richard Nixon found out much to his sorrow, once you start down the Trail of Lies, there’s no turning back. You have to lie more to cover up your previous lies. Maybe it would have helped Kavanaugh to have simply said, “Like everyone, I did some things in my youth that I am not proud of. When I was a teenager, I often acted like a teenager. I broke some rules; I even broke some laws. I was sometimes not a nice young man. As a devout Roman Catholic, I know I committed some sins. But I did not commit any serious crimes, including sexual assault. Please consider me based on my record since I have been on the job, as a lawyer and as a judge,” and let the chips fall where they may. But he didn’t. He engaged in deception, and ultimately was put in a position where he had to either engage in more deception or else admit he had been lying.

Image credit: t-online.de

During questioning, Kavanaugh has done much to avoid having to double down on his deception. Here are some of the ways he has done that:
Evasion – He simply did not answer a significant number of the questions that were asked. Sometimes he did it by staying silent; sometimes he did it by giving a response that had nothing to do with the question that was asked.
Misdirection – For one example, in his notable “calendar explanation,” he made it a point to say that his drunken partying occurred on weekends, pointing attention away from a particular weeknight for which his calendar entry is quite consistent with Ford’s testimony.
Answering a question with a question – It is conventional wisdom that when you ask someone a question – particularly one directing them to acknowledge or deny something – and s/he responds with a question back to you, it means s/he thinks answering directly and truthfully would be detrimental. So, for example, when Kavanaugh was asked by Sen. Amy Klobuchar if he had ever been so drunk he blacked out or didn’t remember what he had done, and he replied, “I dunno. Have you?” it’s nearly certain that a truthful answer would have been, “Yes, I have.”
When I interviewed candidates for hire, I wasn’t answering the questions; I was asking them. When I asked interviewees to describe their experience in radiation safety, I would not have accepted a reply of “I dunno. What’s your experience in radiation safety?” The obvious conclusions would be that the candidate had no significant experience in that area, and that the candidate had some other issues that would cause problems on the job.
Just plain lying – Kavanaugh repeatedly stated that the named witnesses to the claimed event “all said it didn’t happen.” No, they did not say that. They said they did not have a specific memory of the event, and one of them even plainly stated that she believed Ford’s account. Kavanaugh also said that when he was 17, the legal age for drinking alcohol in Maryland was 18, but it wasn’t. Most telling was his clumsy attempt to explain away embarrassing entries in his (oddly redacted) high school yearbook. “Renate Alumnius,” [sic] he told the Senate, was a term of respect and affection for a good friend, not a slut-shaming smear. If that is so, why did Renate herself get so upset about it? A “boof” is a fart, he said. Really? Kavanaugh explained other suspiciously crude references as “drinking games.” “Devil’s Triangle,” he said under oath, was a drinking game, not a reference to a certain sexual behavior. That one doesn’t even pass the giggle test. Why did no one follow up by asking Kavanaugh to describe how the game was played? Since nobody else has ever heard of this game, it would give information helpful in finding out if such a game actually existed.
Claiming victimhood – At various times in his testimony, Kavanaugh cried, sniveled, and complained about being questioned. In his prepared opening remarks on the second day, Kavanaugh raged about the cruel way in which he was being treated. He called the hearings a “hit job” orchestrated by Democrats, the Clintons, and anyone else who may have had the audacity to question his authenticity. Everybody was picking on him because he’s rich, or successful, or some other reasons that have nothing to do with his ability to serve impartially. He said he cannot have engaged in any sexual misbehavior because he was a virgin throughout high school and “for several years after” (raise your hand if you truly believe that). He would have us believe that he spent his high school years doing four things: studying, going to church, lifting weights with his friends, and getting puking drunk. He “worked his tail off” for everything he ever received, never having been afforded any advantage through money, privilege, connections, or anything else besides merit.

In short, Kavanaugh swore an oath to tell “the truth” and he didn’t, to tell “the whole truth” and he didn’t, and to tell “nothing but the truth” and he didn’t.

Frankly, I would be reluctant to hire Brett Kavanaugh for an entry-level position. He has shown himself to be evasive, untruthful, and emotionally fragile. If a woman had displayed the weeping whininess Kavanaugh did under questioning, she would have been torn to bits as “unstable.” But Kavanaugh’s prepared statement of anger and resentment, as well as his snot-sniffling whimpering, was hailed as (in the words of pundit Rich Lowry) “powerfully human.”

I don’t think the hallmark of being “powerfully human” is angry outbursts and accusations in place of honesty. And I think Brett Kavanaugh is dishonest and unsuited to a lifetime appointment to America’s highest court. Why Republicans in the Senate are so set on pushing his nomination through escapes me. But this is apparently a hill they are willing to die on.