This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.<\/b>
\nIf I were a senator, I would not vote to confirm Brett Kavanaugh.
These are words I write with no pleasure, but with deep sadness. Unlike many people who will read them with glee\u2014as validating preexisting political, philosophical, or jurisprudential opposition to Kavanaugh\u2019s nomination\u2014I have no hostility to or particular fear of conservative jurisprudence. I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D. C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character\u2014more than once\u2014and taken a fair bit of heat for doing so. I have also spent a substantial portion of my adult life defending the proposition that judicial nominees are entitled to a measure of decency from the Senate and that there should be norms of civility within a process that showed Kavanaugh none even before the current allegations arose.
This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.
Further reading: Jeff Flake criticizes Brett Kavanaugh
I am also keenly aware that rejecting Kavanaugh on the record currently before the Senate will set a dangerous precedent. The allegations against him remain unproven. They arose publicly late in the process and, by their nature, are not amenable to decisive factual rebuttal. It is a real possibility that Kavanaugh is telling the truth and that he has had his life turned upside down over a falsehood. Even assuming that Christine Blasey Ford\u2019s allegations are entirely accurate, rejecting him on the current record could incentivize not merely other sexual-assault victims to come forward\u2014which would be a salutary thing\u2014but also other late-stage allegations of a non-falsifiable nature by people who are not acting in good faith. We are on a dangerous road, and the judicial confirmation wars are going to get a lot worse for our traveling down it.
Despite all of that, if I were a senator, I would vote against Kavanaugh\u2019s confirmation. I would do it both because of Ford\u2019s testimony and because of Kavanaugh\u2019s. For reasons I will describe, I find her account more believable than his. I would also do it because whatever the truth of what happened in the summer of 1982, Thursday\u2019s hearing left Kavanaugh nonviable as a justice.
A few days before the hearing, I detailed on this site the advice I would give to Kavanaugh if he asked me. He should, I argued, withdraw from consideration for elevation unless able to defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the \u201cno asterisks\u201d standard\u2014that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice. His defense needed to make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade.
Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford\u2014for that we can be grateful\u2014but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship\u2014which was raw, undisguised, naked, and conspiratorial\u2014from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.
Read Julian Zelizer on what happened to Lindsey Graham
Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a \u201cgood judge [as] an umpire\u2014a neutral and impartial arbiter who favors no litigant or policy.\u201d That Brett Kavanaugh reminded us that \u201cthe Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.\u201d
A very different Brett Kavanaugh showed up to Thursday\u2019s hearing. This one accused the Democratic members of the committee of a \u201cgrotesque and coordinated character assassination,\u201d saying that they had \u201creplaced advice and consent with search and destroy.\u201d After rightly criticizing \u201cthe behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,\u201d this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in:
He went on: \u201cThis 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.\u201d
Read Peter Beinart on the fear driving conservative support for Kavanaugh
As Charlie Sykes, a thoughtful conservative commentator sympathetic to Kavanaugh, put it on The Weekly Standard \u2019s podcast Friday, \u201cEven if you support Brett Kavanaugh\u2026 that was breathtaking as an abandonment of any pretense of having a judicial temperament.\u201d Sykes went on: \u201cIt\u2019s possible, I think, to have been angry, emotional, and passionate without crossing the lines that he crossed\u2014assuming that there are any lines anymore.\u201d
Kavanaugh blew across lines that I believe a justice still needs to hold.
The Brett Kavanaugh who showed up to Thursday\u2019s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for the Washington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel\u2019s office and working on judicial nominations and post\u2013September 11 legal matters. Since his confirmation to the D. C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.
My cognitive dissonance at Kavanaugh\u2019s performance Thursday is not important. What is important is the dissonance between the Kavanaugh of Thursday\u2019s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would after that performance consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence? Quite apart from the merits of Ford\u2019s allegations against him, Kavanaugh\u2019s display on Thursday\u2014if I were a senator voting on confirmation\u2014would preclude my support.
Perhaps if I believed Kavanaugh\u2019s testimony in its totality, if I believed his denial\u2014and thus his anger\u2014to be entirely righteous, I could see fit to look past the impropriety of his performance. If Kavanaugh is, in fact, wholly innocent, after all, what has happened to him is so monstrous that perhaps we might forgive him the excess in view of the pressures he is under and the wrongs he would clearly have suffered\u2014though the outburst was part of his prepared statement and thus should be seen as his considered decision about what he wanted to say.
But there are reasons to worry about the integrity of Kavanaugh\u2019s testimony. A number of senators, most notably Jeff Flake and Bob Corker, suggested in the hearing\u2019s wake that the evidence was in some kind of equipoise, that both Ford and Kavanaugh had testified credibly, and that norms of fairness thus counsel giving Kavanaugh the benefit of the doubt. Before he shifted gears and sought a delay and an FBI investigation, Flake stated that he \u201cleft the hearing yesterday with as much doubt as certainty\u201d and that \u201cour system of justice affords a presumption of innocence to the accused.\u201d Corker, for his part, declared that \u201cboth individuals provided compelling testimony\u201d but that since \u201cnothing that has been presented corroborates the allegation,\u201d he would vote to confirm. President Trump presumably feels similarly, given that he continues to support Kavanaugh despite having declared Ford \u201ca very credible witness.\u201d
I fear the evidence is not, however, quite in equipoise, even if one believes that a senator should confirm a justice on the basis that the presumption of innocence should break the tie between two equally compelling testimonies. At least as I read it, though it pains me to say so, the evidence before us leans toward Ford. Let\u2019s consider the balance sheet carefully.
On one side of the ledger, Ford is wholly credible. Yes, her story has holes. The location of the event is unclear in her memory, as is\u2014importantly\u2014how she got home and what happened after she left the house in question. Yet few observers seem to dispute her credibility. Not even Kavanaugh and his supporters contend that she is lying or making up the incident in question, merely that she is mistaken as to his involvement in it.
Her story is certainly plausible, and certain details she offers lend it additional credibility. She correctly identifies, for example, a social circle that appears actually to have existed around Kavanaugh during the summer in question. A fabulist likely would not know, for example, of Kavanaugh\u2019s friendship with Mark Judge and their propensity to drink beer together in the relevant period with other individuals she named. While Kavanaugh said he didn\u2019t recall meeting Ford but that it was possible they had interacted, it seems overwhelmingly likely that her claim to have known him and his circle socially while the two were in high school is true.
While Ford can offer no contemporaneous corroboration of story in the form of testimony from people who remember being present at the alleged event, her story is not wholly uncorroborated either. She appears to have told her therapist about the alleged event years ago, and she identified Kavanaugh as her attacker to her husband years ago, as well.
She initially raised the allegation with her congresswoman before Kavanaugh\u2019s nomination took place. At a minimum, it seems quite clear that Ford was genuinely part of the world in which she claims the attack took place and that she genuinely believed\u2014long before Trump\u2019s election, let alone Kavanaugh\u2019s nomination\u2014that Kavanaugh attacked her.
That she believes this story sincerely is corroborated, if only weakly, by her polygraph exam. Polygraphs are not especially reliable, but the willingness to take one can be a show of strength in a witness. The polygraph is not evidence that Kavanaugh attacked Ford. It is evidence that Ford believes her story truthful and is an earnest accuser, not a conspirator.
Her story is also corroborated, imperfectly but perceptibly, by Kavanaugh\u2019s high-school calendar. Ford describes the attack as taking place at a gathering at which at least four boys\u2014Kavanaugh, Judge, Patrick (P. J.) Smythe, and a boy whose name Ford could not remember\u2014and one girl, Leland Keyser, were drinking beer. Ford specifically allowed for the possibility that there might have been others present as well.
Kavanaugh\u2019s calendar entry for the evening of July 1,1982, contains an entry that reads, \u201cGo to Timmy\u2019s for skis with Judge, Tom, P. J., Bernie and Squi.\u201d In the hearing, Kavanaugh acknowledged that \u201cskis\u201d in this entry referred to \u201cbrewskis,\u201d or beer; that P. J. was Smythe; that Judge was Mark Judge; and that \u201cSqui\u201d was a boy who, Ford had earlier testified, just happened to have been someone she \u201cwent out with\u201d for a short time. The calendar entry does not include Ford or Keyser, so the corroboration is far from perfect. It also includes people not mentioned by Ford. Then again, the degree of overlap with Ford\u2019s story is striking. In the summer in which Ford alleges that Kavanaugh attacked her at an evening get-together with a small group of boys drinking beers, his calendar identifies an evening get-together with a small group of boys drinking beers, including three of the boys named by Ford, along with one she dated. Why exactly Kavanaugh imagines his calendar entries to be powerfully exculpatory I am really not sure.
Ford\u2019s story also finds some degree of corroboration in Mark Judge\u2019s employment history. Ford claims that she saw Judge some weeks after the alleged attack at the Safeway where he worked and that he was visibly uncomfortable seeing her. The Washington Post verified from Judge\u2019s own memoir that he was, in fact, working at a grocery story as a bagger in the relevant period. Assuming the FBI investigation firms that up, it would offer another data point tending to corroborate her account\u2019s consistency with verifiable facts.
On the other side of the ledger is Kavanaugh\u2019s testimony, and here we cannot be quite so confident that the witness was being candid.
Kavanaugh\u2019s testimony, whatever one makes of his impassioned claims of innocence on the specific charge, is not credible on the more general issue of his drinking habits. It is, as Kavanaugh suggested at the hearing, absurd for senators to argue with a Supreme Court nominee over his high-school yearbook. Then again, Kavanaugh\u2019s unwillingness to acknowledge the obvious\u2014that his yearbook described a hard-drinking culture that he was a part of and that makes Ford\u2019s account more plausible\u2014made it necessary to do so. Kavanaugh would not concede that the phrase \u201cBeach Week Ralph Club\u2014Biggest Contributor\u201d referred to drinking culture, claiming it was simply a reference to his having a weak stomach. He ascribed implausibly innocent definitions to other terms that appeared in the yearbook. He diminished the casual cruelty he and his friends showed to one girl, Renate Schroeder Dolphin, by describing themselves as \u201cRenate Alumni.\u201d He claimed they intended to show her respect and friendship, but that is not how she reads it three and a half decades later. She told The New York Times, \u201cThe insinuation is horrible, hurtful and simply untrue. I pray their daughters are never treated this way.\u201d She is not a fool. His repeated suggestion at the hearing that he had never been so drunk as to have any possibility of memory loss flies in the face of the memories of a number of classmates from college.
My point is not that his confirmation in any sense turns on how much Kavanaugh drank or whether he and his friends made misogynistic jokes as teenagers. But his testimony doesn\u2019t have the ring of truth either. And lack of candor in a witness in one area raises questions about the integrity of that witness\u2019s testimony in other areas.
Thursday evening, after the hearing, former FBI Director James Comey tweeted, \u201cSmall lies matter, even about yearbooks. From the standard jury instruction: \u2018If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness\u2019 other testimony and you may reject all the testimony of that witness.\u2019\u201d
In response, I tweeted a passage that had been haunting me all day from a Guantanamo Bay habeas case in the D. C. Circuit called Al-Adahi v. Obama. The passage reads:
The opinion was not written by Kavanaugh, but Kavanaugh was on the unanimous panel that decided the Al-Adahi case.
There\u2019s another factor that weighs in Ford\u2019s favor: the failure of the committee to meaningfully engage Mark Judge. The current FBI investigation should ameliorate this problem, and it\u2019s possible, I suppose, that Judge could change the picture significantly in Kavanaugh\u2019s favor\u2014if, for example, he informs the FBI that Kavanaugh was never out-of-control drunk with him or if he denies ever working at the Safeway. The committee\u2019s contentment with the perfunctory letter he sent, however, has the air of fear\u2014fear of what Judge would say. This unwillingness to ask Judge obvious questions erodes Kavanaugh\u2019s position.
To be clear, I am emphatically not saying that Kavanaugh did what Ford says he did. The evidence is not within 100 yards of adequate to convict him. But whether he did it is not the question at hand. The question at hand is how a reasonable senator should construct the evidence to guide a binary vote for or against elevation of a judge to a lifetime appointment to the highest court in the land. By my read, we have two witnesses who both profess 100 percent certainty of their position\u2014one whose testimony is wholly credible and marginally corroborated in a number of respects, and the other whose testimony is not credible on a number of important atmospheric points surrounding the alleged event.
It\u2019s not a tie, and it doesn\u2019t go to the nominee.
There\u2019s one more reason I could not vote to confirm Kavanaugh: His apparent lack of candor on the culture of drinking at Georgetown Prep and later is a problem of its own, quite apart from what it may indicate about the truth of Ford\u2019s story. People throw around words like perjury too blithely. I won\u2019t do so here. I will say that I do not believe he showed the sort of candor that warrants the Senate\u2019s\u2014or the public\u2019s\u2014confidence. To the extent some commentators on the right are defending Kavanaugh\u2019s testimony as containing the sort of white lies that anyone might tell under the circumstances, let me just say that I don\u2019t believe that Supreme Court justices get to tell self-exculpating white lies\u2014and I don\u2019t believe in white lies from anyone else either in sworn congressional testimony.
Over the weekend, I listened to a number of podcasts in which liberals mocked Kavanaugh as an entitled white male refusing to face accountability for what he had done. I find the tone of these discussions nauseating\u2014undetained by the possibility of error. I, like Jeff Flake, am haunted by doubt, by the certainty of uncertainty and the consequent possibility of injustice. I spent a lot of time this weekend thinking about Oliver Cromwell\u2019s famous letter to the Church of Scotland in which he implored, \u201cI beseech you, in the bowels of Christ, think it possible you may be mistaken.\u201d I also spent some time with Learned Hand\u2019s similar maxim, \u201cThe spirit of liberty is the spirit which is not too sure that it is right.\u201d We all need to think it possible that we may be mistaken; we all need to be not too sure that we are right.
But my bottom line is the opposite of the one Flake expressed in his statement: Faced with credible allegations of serious misconduct against him, Kavanaugh behaved in a fashion unacceptable in a justice, it seems preponderantly likely he was not candid with the Senate Judiciary Committee on important matters, and the risk of Ford\u2019s allegations being closer to the truth than his denial of them is simply too high to place him on the Supreme Court.
We are in a political environment in which there are no rules, no norms anymore to violate. There is only power, and the individual judgments of individual senators\u2014facing whatever political pressures they face, calculating political gain however they do it, and consulting their consciences to the extent they have them.
As much as I admire Kavanaugh, my conscience would not permit me to vote for him.<\/p>\n

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