Kavanaugh: A Question of Credibility and Prudence

Having watched/listened to today’s hearings and reflecting back on the Kavanaugh nomination and vetting process as a whole I’ve come to a few general conclusions. While in some sense both Kavanaugh and Blasey Ford provided testimony that was emotionally gripping and at least partially compelling, leaving the Senate Judiciary committee with the “he said”/”she said” that we were warned of, it seems to me that there were key differences in the testimony of the two witnesses that ought to be decisive for assessing the appropriateness of putting Kavanaugh on the Supreme Court.

With regard to Dr. Blasey Ford, what stood out was the lack of evident deceit. She was credible, scrupulous, and thorough in her answers. She sought clarity in order to answer with precision and admitted where her memory was not particularly strong, which was in areas that one would expect memories to be less vivid because they were less central to the traumatic experience that stands out so starkly about that day. She did not seize opportunities to drive home accusations with emotional force, or state things in the strongest possible terms even when invited by Democratic members of the committee to do so. Perhaps most strikingly she did not dissemble, filibuster, or otherwise try to avoid answering questions forthrightly, with the exception of those that her counsel objected to.

In contrast, while Kavanaugh was forceful and emotional in his denial of the allegations made against him, questions about the integrity, forthrightness, and honesty of his testimony abound. It strains credulity to believe that the young man deemed the greatest contributor to the “Beach Week Ralph Club” was known as such simply due to the unfortunate suffering of a weak stomach. And that’s just one example. Time after time when confronted with evidence of not only heavy drinking, but a reputation for heavy drinking recollected by peers and memorialized in high school and college memorabilia Kavanaugh sought to maintain a picture of himself as someone who participated in downing 100 kegs in a single school year, pledged DKE, orchestrated bus trips to ball games where people were described as falling out of the bus doors onto the steps of the law school after four o’clock in the morning and trying to piece together the previous night’s events– he sought to paint himself as someone of whom all of that was true, but who has never in his life blacked out, passed out, or even been fuzzy about experiences that occurred while under the influence of alcohol. It’s not credible. It’s contradicted by multiple witnesses. It’s contradicted by a commonsense reading of his high school yearbook and other documents.

Add to those denials implausible claims about the meaning of phrases like “Renate alumnius” (sic), “devil’s triangle,” and other slang and innuendo and we start to get a body of seemingly small, seemingly petty falsehoods, or at least fudges. Yet notably they all functionally hedge Kavanaugh off from the kinds of behavior that are alleged against him in much more damning form (i.e. violence, drunkenness, and cruelty to women).

Another example of this same kind of relatively mild dishonesty or at least inconsistency is Kavanaugh’s claim during his hearing that “[Polygraphs] are not admissible in federal court because they are not reliable, as you know.” Yet Kavanaugh, writing an opinion in a case in 2016 stated, “As the Government notes, law enforcement agencies use polygraphs to test the credibility of witnesses and criminal defendants. Those agencies also use polygraphs to ‘screen applicants for security clearances so that they may be deemed suitable for work in critical law enforcement, defense, and intelligence collection roles.’… The Government has satisfactorily explained how polygraph examinations serve law enforcement purposes.” Again, perhaps minor, but another inconsistency that just happens to work in the direction of casting doubt on part of Blasey Ford’s evidence of credibility.

In addition to statements of questionable veracity, there are several other factors that go to credibility including defensiveness and pugnaciousness on the subjects already mentioned up to and including throwing questions that were clearly relevant to the allegations back at committee members as he did with Senator Klobuchar when she was asking him about blackouts (behavior he did later apologize for). Additionally, over and over again we saw him clearly stalling, filibustering, answering questions other than the one asked, and even simply refusing to answer questions. Strikingly, most of these instances happened when he was asked about either having the other alleged participant in Blasey Ford’s allegations questioned, or more generally about why he was not, like Blasey Ford, willing to call for the FBI to re-open his background check and investigate these matters. He never gave a satisfactory answer and was repeatedly evasive and defensive and sought to avoid answering the questions by answering questions other than those that had been asked, repeating in detail things that had been said multiple times, or questioning the committee member rather than answering.

That was all today. But in the case of Kavanaugh we have other testimony he has given, much of which has raised questions of honesty and forthrightness. Judge Kavanaugh denied knowingly having or interacting with emails that had been hacked from Democratic Senators when he worked in the Bush White House, yet we have emails that he received, interacted with, and responded to that speak specifically about the presence of a mole on the other side of the aisle, spying, and the info being sent needing to be kept confidential. I won’t go into details, but it is pretty obvious to anyone reading these documents what they are. Likewise, Kavanaugh claimed to have not had a major role in judicial nomination proceedings that the paper trail makes clear he was heavily involved in. There are several of these types of things where a) it seems that Kavanaugh was not forthright or perhaps even lied in his hearings, and b) it happened in circumstances where doing so served a motive of ambition.

Finally, I haven’t been able to shake the fact that in his very first public comments after being nominated for a seat on the Supreme Court, Judge Kavanaugh told a flagrant, demonstrable, and gratuitous lie to the American people, an unnecessary lie, but once again, a lie that would serve an ambition motive, a motive to earn the good graces and support of a very powerful man who would stick by him through this whole tumultuous process. “No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination.”

In the end it’s important to remember that what is being decided on is not a question of guilt or innocence that rises to an evidentiary standard used to establish criminal liability.  This is not a case where “beyond a reasonable doubt” is likely or necessary.  Instead, what is called for in this instance is a prudential judgement of credibility sufficient to determine whether this particular person should be elevated to a lifetime appointment to the Supreme Court.  Saying no to that question doesn’t mean determining conclusively that Brett Kavanaugh is a monster.  But answering in the affirmative should indicate that after careful weighing of the magnitude of the power and authority to be conveyed it has been determined that to do so would be wise, and prudent, and that there are no significant questions about this person’s character, honesty, integrity, temperament, or fairness.  I don’t think that kind of judgement can be made with sufficient confidence about Brett Kavanaugh after what we have seen.

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