Liberals do not want Brett Kavanaugh on the Supreme Court because they believe that his jurisprudence poses a threat to consumers, workers, women’s bodily autonomy, voting rights, the independence of federal law enforcement, the government’s capacity to regulate private industry, and various other constituencies and issues that they care about.
Liberals also believe that, as a general rule, Supreme Court justices should not be unrepentant sex offenders, perjurers, or vengeful partisans.
By contrast, the people who have the power to make or break Brett Kavanaugh’s nomination like his approach to Constitutional law. Susan Collins, Lisa Murkowski, and Jeff Flake are perfectly fine with Kavanaugh’s jurisprudence. But they have evinced some concerns about his character. For this reason, in recent days, Democrats have focused their case against Kavanaugh on two related “character” issues:
• Multiple women have accused him of sexual assault, including one who did so in sworn testimony that struck some Senate Republicans as credible.
• When Kavanaugh appeared before the Senate to respond to those allegations, he delivered an angry partisan tirade, treated several Democratic senators with abject contempt, and was evasive in response to direct questioning. He also (ostensibly) told many, many lies while under a sworn oath.
The FBI is currently investigating the allegations leveled by Christine Blasey Ford and Deborah Ramirez. But since it is inherently more difficult to establish that Kavanaugh committed sexual assault three decades ago than to prove that he comported himself as a dishonest, intemperate partisan last week, Democrats are beginning to focus their fire on the latter point.
“The issues of credibility and temperament are not something that happened 30 years ago; they’re about Judge Kavanaugh today and how he is as a 53-year-old,” Senate Minority Leader Chuck Schumer told the New York Times Monday. “I think there are serious questions about both his credibility and his temperament that may, to some senators, be more important than the activities that occurred in high school.”
One day later, during an appearance at The Atlantic Festival, Senator Flake said that he “didn’t like some of the more partisan references and the tone, particularly with some of my colleagues …We can’t have that on the Court.”
Flake did not mean to suggest that Kavanaugh’s conduct last week rendered him irrevocably unfit for the court. But Democrats should do their best to convince him (and Collins and Murkowski) that it did.
To say that Kavanaugh’s partisan rage was disqualifying would not be to “move the goalposts.” It is true that liberals would oppose Kavanaugh’s confirmation even if he hadn’t been accused of sexual assault, or lied to the Senate, or identified himself as the victim of a pro-Clinton conspiracy. But it is also true that Kavanaugh’s behavior last Thursday was disqualifying by long-honored — and well-founded — norms of judicial conduct.
For the sake of argument, let’s assume that Kavanaugh has never sexually assaulted anyone in his life — and that he did not (definitely, clearly, unambiguously) lie under oath in any of his testimony before the Senate. Even if we make these stipulations, Kavanaugh still disqualified himself last Thursday.
Conservatives don’t deny that Kavanaugh vented partisan rage at last week’s hearing. Rather, they insist that this norm-defying conduct was acceptable for two reasons: Kavanaugh’s anger was justified in human terms, and he had no means of credibly defending himself without attacking those who set out to destroy him.
Here is how The National Review’s Charles C. Cooke renders the case:
[Kavnaugh] simply could not defend himself without making specific criticisms about how he had been treated; about who had said what, and when; and, yes, about how certain people in the room with him had behaved. To argue “he should have refrained from specifics” is to say, effectively, “he shouldn’t have competently defended himself.”
… Kavanaugh had only one option today, and that was to do what he did. It would be utterly bizarre if our standard was, “if someone accuses you, and the minority party helps, and you defend yourself from both, you have therefore rendered yourself unsuitable for the position that the accusation is intended to deny you.”
… Put simply, if Kavanaugh he believes he is innocent — and he does — there is no other proper way for him to act. What he did today is what I would have done if someone accused me of being a gang rapist and a lecher and a teenage sexual deviant.
If Kavanaugh did not do what Christine Blasey Ford and Deborah Ramirez claim, then he has suffered a grievous wrong. A letter containing a defamatory allegation was leaked to the press — and for ten days, he was denied the opportunity to formally defend himself before the Senate. In the interim, national newspapers combed through his every youthful indiscretion. His reputation was damaged, and unless he can somehow find a way to prove a negative, much of that damage will be irrevocable. His teaching career has been imperiled; his family has been made subject to violent threats.
Given all this, it is perfectly understandable that Kavanaugh’s testimony was inflected with indignation. But it was neither understandable — nor remotely necessary for the purposes of a competent defense — for Kavanaugh to say the following in his opening statement to the Senate:
Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation…You sowed the wind for decades to come. I fear that the whole country will reap the whirlwinds. 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 okay enough at the hearings that it looks like I might actually get confirmed, a new tactic was needed. Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee and by staff. It would be needed only if you couldn’t take me out on the merits. When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes.
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.
This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade confident and good people of all political persuasions from serving our country. And as we all know in the United States political system of the early 2000s, what goes around comes around.
There are two primary problems with this argument:
1) By accusing Democrats of “Borking,” Kavanaugh endorsed the conservative movement’s deeply tendentious narrative of Robert Bork’s failed bid to become a Supreme Court justice.
In 1987, Ronald Reagan nominated Bork to the Supreme Court. Senators proceeded to scrutinize the judge’s legal writings — and found that, at various points in his career, Bork had argued that the Civil Rights Act of 1964 was based in “a principle of unsurpassed ugliness”; that the First Amendment did not protect scientific or literary speech; that companies could legally require their employees to undergo sterilization to keep their jobs; and that poll taxes were constitutional.
As the party tasked with providing political representation to liberals, labor, and African-Americans, the Democrats were understandably concerned by all of this! Therefore, they made a political issue of Bork’s jurisprudence at his confirmation hearings. And since Bork didn’t bother to do much preparation for said hearings, his performance proved fatally damaging to his nomination.
Ever since, Republicans have promoted the idea that Democrats treated Bork unfairly; that it was fundamentally wrong to scrutinize the practical implications of a qualified judicial nominee’s legal theory. But no Republican actually believes this. Which is to say, no GOP lawmaker thinks that it is illegitimate to reject a nominee to the judiciary on ideological grounds; if they did, Merrick Garland would be on the Supreme Court. It is absurd to suggest that Kavanaugh had no choice but to echo the conservative movement’s propagandistic account of Bork’s confirmation process last Thursday. He did so either as a means of appealing to the GOP base, or else, because he unthinkingly accepts the conservative movement’s propaganda as reality. Either of those scenarios undermines the notion that Kavanaugh is capable of serving as “a neutral and impartial arbiter who favors no litigant or policy” (which is Kavanaugh’s own definition of what it means to be a “good judge”).
2) Kavanaugh’s jeremiad against the evil of unsubstantiated allegations was full of unsubstantiated allegations. The judge had no basis for asserting that he was the victim of “calculated and orchestrated political hit.” More concretely, he had no cause for claiming that the committee’s Democrats had always planned to leak Ford’s letter to the press as a contingency if merely “Borking” him proved insufficient. It is reasonable to assume that someone affiliated with Ford or the Senate Democrats leaked the letter. But the identity of that individual remains unknown, and there is no basis for assuming that said individual acted on behalf of others, let alone on behalf of a vast left-wing conspiracy. Meanwhile, Dianne Feinstein insists that she declined to share the letter with the committee initially because she felt compelled to honor Ford’s request for confidentiality, a request that Ford only suspended after her letter became public.
Kavanaugh might not trust this narrative. But he offered no evidence to refute it. Instead, he merely asserted that Senate Democrats had collectively conspired to ruin his life for ideological gain, and felt no need whatsoever to substantiate his allegation.
What’s more, by the time Kavanaugh came before the committee, Christine Blasey Ford had testified, under penalty of perjury, that he had sexually assaulted her in a manner that had caused her to fear for her life. She had then subjected herself to cross-examination by a professional prosecutor — after which, Senate Majority Whip John Cornyn said that he had found no reason to dismiss her testimony as “not credible.”
If Kavanaugh is innocent (and telling the truth about having never blacked out from drinking), then he knows for a fact that Ford’s allegation is false. But what basis did he have for assuming that Senate Democrats knew the same? And if the committee’s Democrats did not possess his unique insight into the truth of her allegations, how was he justified in declaring the hearing “a circus”? Given that a woman had accused him of a serious crime — in sworn testimony that even John Cornyn found plausible — how was Kavanaugh justified in asserting that Senate Democrats had only demanded Thursday’s hearing out of ideological spite, rather than out of a genuine concern about the grave allegation leveled against him? What justification did he have for treating the hearing’s very existence with contempt?
Ostensibly, one reason why jurists aren’t supposed to be rabid partisans is that a strong identification with one party or ideological movement could impair a judge’s ability to treat arguments from all claimants with intellectual generosity, and preside impartially over their disputes. On Thursday, Kavanaugh demonstrated no such ability.
Cooke’s op-ed offers no answer to these objections. Rather, he merely asserts that Kavanaugh “had only one option … and that was to do what he did.” There was simply no way for Kavanaugh to competently defend himself, without casting unsubstantiated aspersions about Senate Democrats’ integrity.
But Cooke never actually tries to justify this claim. And it’s hard to imagine how he would. Kavanaugh’s innocence is not contingent on Senate Democrats’ bad faith. In fact, the purity of Dianne Feinstein’s heart is completely immaterial to the question of Kavanaugh’s guilt or innocence; she could be Machiavelli reborn, and Ford could still be telling the truth. If anything, Kavanaugh’s compulsion to contest the legitimacy of the hearing — and assail the motivations of anyone who saw Ford’s allegations as meriting a formal inquiry — undermined the competency of his defense by damaging his own credibility.
Kavanaugh could have exhibited grace under fire. He could have acknowledged that it was reasonable that a majority of U.S. senators expected him to formally respond to an allegation of sexual assault, made under oath, before approving his lifetime appointment to the nation’s most powerful court. He could have put himself in the shoes of Americans who weren’t inclined to believe him — of ordinary Democratic voters, and sexual-assault survivors watching from home — and evinced sympathy for their concerns. He could have signaled that he felt an obligation to assure them that their country wasn’t about to put a sex criminal on its highest court. None of this would have been incompatible with insisting upon his innocence, or detailing the various ways Ford’s allegation hadn’t been corroborated, or appealing to his audience’s sympathies by referencing the terrible ordeal that he had been through. All of it would have made his defense more compelling to blue America.
Or, failing that, Kavanaugh could have simply given the exact same statement that he did, except without all the paragraphs about the Democrats’ perfidy. (Really, the statement holds together perfectly fine with all that material excised.)
Kavanaugh had plenty of options. He freely chose to launch a tendentious, partisan diatribe that violated his own avowed standards for proper judicial conduct. And the result was not a “competent defense,” but an indictment of his fitness for a judgeship of any kind.