Christine Blasey Ford says Supreme Court nominee Judge Brett Kavanaugh sexually assaulted her decades ago when they were both in high school. Deborah Ramirez says he exposed himself to her and forced her to touch his penis at a party while they were both at Yale. Kavanaugh says neither of those things happened.
Over the weekend, Senate Majority Leader Mitch McConnell nonetheless committed himself to “plow right through” Ford’s allegations without a meaningful investigation. We learned from reporting by Jane Mayer and Ronan Farrow in the New Yorker that Senate Republicans’ initial response to learning of Ramirez’s allegations was to try to speed up the process so he’d be confirmed before the New Yorker ran her story.
Given the nature of the evidence at hand, it’s certainly possible that Kavanaugh is telling the truth about this. But I don’t believe he is.
I believe Ford and Ramirez, in part, because I do tend to “believe women.” Unreported sexual assault is common, and there is no conceivable motive for a false report in this case. Human memory and eyewitness testimony are unreliable, but researchers say the central fact of a traumatic event involving a previously known assailant is the kind of thing one is most likely to remember correctly.
It is, however, on some level, an inherently he-said, she-said kind of situation, and Kavanaugh rightly could not be sent to jail on the basis of this level of evidence. A promotion to a Supreme Court seat, however, seems like a place where a preponderance of evidence standard could prevail instead.
There’s a fundamental problem for Kavanaugh in a he-said, she-said context. There is one thing that I — who, like most Americans, did not follow his career pre-selection — really know about Brett Kavanaugh: He is willing to fib to get a Supreme Court seat.
Kavanaugh tried to bullshit his way into selection
When President Donald Trump announced Kavanaugh’s selection to fill the Supreme Court vacancy, these were the first three sentences Kavanaugh uttered to introduce himself to the American public:
Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.
Neither the claim that Trump appreciates the vital role of the American judiciary nor the claim that he consulted unusually widely in making his choice is true. What’s more troubling in some ways is that neither claim is even a proper lie intended to trick people.
Kavanaugh was, instead, offering what the philosopher Harry Frankfurt termed “bullshit.” The bullshitter, as Frankfurt wrote in his seminal essay on the subject, “does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.”
In Kavanaugh’s case, the purpose was to butter up Trump. After Trump selected Neil Gorsuch to fill the vacancy left by Senate Republicans’ refusal to allow a vote on Merrick Garland’s nomination, Senate Democrats spent a fair amount of time during Gorsuch’s confirmation hearings asking slightly troll-y questions about Trump’s personal contempt for the independent judiciary and its role in the American constitutional system.
Gorsuch, befitting a jurist with a sense of personal dignity, denounced some of Trump’s excesses in this regard. We’ve later learned that this angered Trump, and he contemplated trying to spike the nomination, only to be talked out of it by White House aides.
Kavanaugh, having read the reporting on Gorsuch, and likely being aware that Trump has become more self-confident over time and now has more mastery over the institutional Republican Party, displayed considerably more loyalty to Trump and less personal dignity both in his introductory remarks and in his subsequent testimony.
The buttering-up of Trump is not, viewed in isolation, the worst thing in the world. But in some ways, its sheer triviality speaks volumes about Kavanaugh’s character. By the time he delivered those introductory remarks, Trump had already picked him. But in addition to whatever flattery he offered Trump in private, he was so thirsty for the president’s approval that he chose to gild the lily in his public remarks and then reemphasize loyalty to Trump during sworn testimony.
The impression it creates is of a man who is willing to say things that aren’t true to advance his career prospects in really marginal ways. A reasonable observer would conclude that he’d be willing to say things that aren’t true when his fate is truly on the line. And, indeed, that’s what we’ve seen him do in the past.
Kavanaugh misled Congress repeatedly in 2004
Kavanaugh has been bullshitting recently, but at other times, he seemingly did seek to outright mislead people.
During his 2004 confirmation hearings for a seat on the DC Circuit, Kavanaugh was asked about his role as a White House staffer in the effort to get William Pryor confirmed for a different appeals court seat.
“No, I was not involved in handling his nomination,” Kavanaugh said then in response to questioning. But as the Washington Post’s Seung Min Kim first reported, between 2002 and 2003, Kavanaugh was included in several emails referencing the Pryor nomination. In one exchange between Kavanaugh and White House aide Kyle Sampson, Kavanaugh is asked: “How did the Pryor interview go?” He responded, “Call me.” In another email chain, Kavanaugh is included in a conversation about a conference call to “coordinate plans and efforts” around Pryor.
Kavanaugh’s denials that he was involved with Manuel Miranda’s scheme to pilfer Democratic staff emails related to judicial confirmations also appear to be bogus. As Salvador Rizzo concluded in his fact-check column for the Washington Post:
The best-case scenario is that Kavanaugh, who is up for a seat on the nation’s highest court, has a glaring lack of curiosity or a superficial level of discernment. The worst-case scenario is that he has been feigning ignorance since his first confirmation hearing in the Senate in April 2004, which was held after the Senate sergeant-at-arms had released his report documenting Miranda’s serial theft.
And this isn’t the only time Kavanaugh has pleaded obliviousness. His mentor, Alex Kozinski, a formerly well-regarded appellate judge, was reportedly notorious among insiders for his inappropriate sexual remarks and has since been driven off the bench after accusations of sexual harassment. Kavanaugh claims to have noticed nothing untoward, including not remembering being on the recipient list for Kozinski’s email distribution list for dirty jokes.
The overall impression one gets of Kavanaugh is of a man who is not that scrupulous in his recollections and who is very willing to say things that are false or misleading to both Congress and the public in order to get ahead.
Don’t lie to Congress and the public if you want people to believe you
The past week has seen a lot of takes about due process, presumptions of innocence, and other questions relating to how we should think about the situation at hand, in which Ford has a credible accusation but no contemporaneous witnesses or real proof.
The answer as a matter of criminal law is fairly clear: Victims are not going to be able to get perpetrators sent to jail on the basis of this kind of evidence. While that’s unfortunate in many ways, there’s also no way around it consistent with the principles of justice and due process.
But as a political matter, we have a different situation.
It sounds a little old-fashioned in the Trump era, but you are genuinely not supposed to pull up to a microphone in the White House and say stuff that isn’t true. And you’re not supposed to mislead Congress — even if you manage to do so in ways that don’t meet the legal standard for perjury.
Why not? Well, on one level, because truthfulness and honest, decent behavior are supposed to be their own rewards in public life. But there’s another reason to develop a track record for honesty and forthrightness, even when telling the truth is inconvenient: The time may come when you find yourself asking skeptical people to take your word for it.
It’s obviously possible that Ford is lying for no reason or suffering from some kind of inexplicable confusion, and that her revelations then prompted a misleading or misremembered story from Ramirez. But it’s certain that after bullshitting about Trump, dissembling about Pryor, misleading about Miranda, and offering an implausible plea of ignorance about Kozinski, Kavanaugh isn’t a trustworthy figure.
That’s not enough to prosecute him — and realistically probably not enough to impeach him, even though he deserves it over the congressional testimony alone. But it’s ample grounds to deny him a seat on the Supreme Court.