It’s Justice Kavanaugh now. Damn it.
Not that there was really any suspense. The Republican take-over of the federal courts has been a decades long project and, as usual, the lackluster resistance of the Democrats has been powerless to stop it. It does not matter that Americans, by a 51-41 percent margin, disapprove of Brett Kavanaugh’s confirmation to the Supreme Court. Americans preferred the Democratic candidate for president in 2016. A lot of good that did her.
I can hear it now. Even from some friends and relatives. “You’re just a ‘g d’ east coast liberal Democrat.” And then there’s, “Elections have consequences.” Thank you Lindsey Graham. First of all, I’m from Chicago. Not even close to either coast. Second, I was born into a very Republican family and I have voted for many Republicans over the years. But the Republicans I respected are either dead, retired, or primaried out of office. What’s left is a group of people who see politics as a blood sport. People for whom cooperation is anathema and no tactic out of bounds on the road to victory.
Kavanaugh sat for the requisite hearing before the Senate’s Committee on the Judiciary and as is common practice today said virtually nothing of substance, accepting plaudits from Republicans and refusing to answer questions about judicial philosophy from Democrats. His confirmation seemed certain. Then came the bombshell. A California professor accused Kavanaugh of a sexual assault more than three decades ago. The result was another day of hearings, which boiled down to a she said – he said stalemate in which the biggest losers were the Senate, the Supreme Court, and the American people; more than 20 million of us tuning in.
I watched the confirmation hearings for Clarence Thomas in 1991, when he was accused of making sexual advances to a former subordinate, Anita Hill. I watched the impeachment proceeding and subsequent 1999 trial of President Bill Clinton, accused of perjury and obstruction of justice for lying about a relationship he had with a White House intern. The rhetoric in both of those cases was unbecoming of Congress, but it was nothing like the deranged performance the judiciary committee put on for the Kavanaugh hearing. Chairman Grassley was a study in partisan steamrolling. Senator Booker was running for president. Senator Graham ranted like a man in desperate need of psychiatric assistance.
Much of the argument focused on the so-called lack of evidence to support accuser Christine Blasey Ford. Interestingly, Kavanaugh, son of two lawyers who graduated from Yale and Yale law has never, I understand, tried a case before a jury. I’m not a lawyer but I have tried two cases, one before a jury. I know physical corroborating evidence is always good to have. It is a shame Professor Ford did not have a Go-Pro camera covering the upstairs bedroom where she says she was attacked one summer in the early 1980s by a “stumbling drunk” Kavanaugh. But this is not unusual. Many cases require the weighing of witness testimony. That’s what judges and juries are for.
Who to believe? As you’ve probably guessed by now I lean to the Professor’s side. But I do not know if I can say my belief is beyond reasonable doubt, the criminal standard. I learn to her side because I saw in her testimony someone who has nothing to gain by coming forward, save the satisfaction of trying to stop an injustice, and a lot of lose.
As for Kavanaugh I saw a man defensive, combative and pugilistic. Not the attributes I would expect to see in a man telling the truth. His aggressive engagement of the Democratic Senators was appalling. Can you imagine a lawyer pleading a case in any court interrupting the judge or tossing a judge’s question back at her? You’d be cited for contempt in the blink of an eye. His political attack on Democrats would seem to violate the Code of Conduct for United States Judges. And his characterization of the charges as an attempt at revenge by the Clintons is theater of the absurd. Are we actually to believe Professor Ford told her husband about the incident, naming Judge Kavanaugh, in 2004 and told her therapist about it in 2014 because she knew that in 2016 Hillary Clinton would run for president against Trump, who would win in the Electoral College and then 18 months later nominate Kavanaugh to the Supreme Court. Really?
But even more telling, and revealing to a juror who is trying to weigh the credibility of two opposing witnesses, Kavanaugh demonstrably and repeatedly lied. He lied about his age during the time period in question. He lied about the legal drinking age at the time. And he lied about the various notations in his yearbook, which anyone with internet access and the ability to Google knows refereed to sex acts, not “drinking games”.
And just as an aside, how does something like that get into a yearbook? My college-prep high school had a national award winning yearbook edited by students. No student would have dared write a bio entry like that. And no student editor would have allowed it to be published if someone did.
Kavanaugh also lied about what was clearly a demeaning sexual reference about a girl at a nearby school. He did this lying before the American people, the US Senate, and his wife and children. All this lying makes it easy judge his credibility. None.
This might well be the way he remembers it. I’ve seen this before. I shared an apartment in a slum Columbia University passed off as graduate student housing while earning my master’s in journalism. A PhD candidate in music, my assigned apartment mate, got rip roaring drunk on weekends. He was a nasty drunk who never remembered what he said or did while intoxicated. Luckily he was someone I could just shove into his room when he got abusive. There he wallowed until Monday morning where, without a word, we went about our separate ways. This is not the kind of guy I would invite over to my house for dinner. It is not the kind of guy I want to on the Supreme Court.
But this is exactly the kind of guy Trump and the Republicans want. You only have to look at his record as an appellate judge to see why. Probably key to Trump’s enthusiasm, Kavanaugh, who pushed the case against Bill Clinton, has since, hypocritically, questioned the power of independent prosecutors and wrote in 2009 “The indictment and trial of a sitting president would cripple the federal government. Such an outcome would ill-serve the public interest.”
He dissented from DC Circuit rulings upholding the authority of regulatory agencies, imposing a ban on semiautomatic rifles and limiting review of decisions denying exemptions from the Affordable Care Act on religious grounds. He has been willing to grant the government broad rights to collect information on citizens in the name of national security, opposed “net neutrality,” and on Roe v. Wade wrote a dissent when the DC Circuit allowed a 17-year-old undocumented immigrant to end her pregnancy saying “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Before the judiciary committee he refused to state if he would sustain or overturn Roe.
In other words, Kavanaugh’s record leads this juror to believe he will rule exactly as Trump and the Republicans want him to rule. And that is not in line with the majority of Americans. Elections do have consequences.