I was impressed when President Trump introduced his nominee to the Supreme Court. Judge Kavanaugh seemed highly qualified to serve. He was not the person President Obama would have appointed, but he seemed a likable fellow with a solid resume… an admirable husband/father/citizen.
The testimony in the confirmation hearings convinced me that I was wrong. Judge Kavanaugh is not Supreme Court material… still an admirable husband/father with a solid resume. But, no longer a likable fellow… no longer deserving of confirmation.
The Senate Judicial Committee has heard from two witnesses. Judge Kavanaugh, the exemplary adult, appeared before the committee at the first hearing. He told the committee about Judge Kavanaugh, the exemplary youth, and all the reasons Judge Kavanaugh deserved approval to serve on the US Supreme Court… he led an exemplary life, the son of exemplary parents, attended exemplary schools, as an exemplary student, working in important, exemplary positions, as an exemplary employee, and served as US Circuit Court of Appeals Judge.
Exemplary was the operative adjective, including as a husband/father/citizen.
In the second hearing, the committee heard from Dr. Christine Blasi-Ford, the adult, in a compelling and truthful description of what happened to her as a youth. She was shy, likable, admirable, and honest. Blasi-Ford, the adult, was able to speak Truth that Blasi-Ford, the youth, was not able to speak: Kavanaugh, in high school, had drunkenly sexually assaulted Blasi-Ford, in high school, and then laughed at what a good time he was having… perhaps, in his drunken state, not remembering what he had done to Blasi-Ford… but in any case, not caring.
Then, we heard from Kavanaugh, the adult nominee to the US Supreme Court accused of drunken, sexual abuse of Blasi-Ford, the youth. This accused Kavanaugh was not like the earlier exemplary Kavanaugh, and much more like young Kavanaugh, that drunken, sexually assaulting youth, described under oath by Blasi-Ford. This accused Kavanaugh was “entitled,” and he demonized anyone who did not agree. This Kavanaugh was the victim, and he was mad as Hell… lashing out at those who stood in his way to the US Supreme Court.
As a former prosecutor, with some journalistic background, and the father of five, I have experience in determining when someone is telling the truth, and when they are not. Kavanaugh, the accused adult, was not truthful. He dismissed Blasi-Ford as “mistaken.” He was defensive. He deflected, instead of answering questions fully and honestly and in good faith. He attacked his questioners and the process that challenged his entitlement to serve on the Supreme Court.
The issue was whether Kavanaugh was truthful in denying an alleged drunken sexual assault in his youth. Thus, excessive drinking, abusive or aggressive sexual behavior, and truthfulness were all relevant. Kavanaugh, the accused adult, did not, and often would not, talk about those issues. Instead, he kept referring to other matters that were not in issue, the positive, exemplary things.
When questioned about excessive drinking and abusive or aggressive sexual behavior, he attacked and deflected, deflected and attacked, as someone who clearly had something to hide. As Shakespeare wrote about Macbeth’s mother, “Methinks (he) doth protesteth too much.”
Those pushing for confirmation, including Kavanaugh, argued that this was just a “he said; she said,” situation, and Kavanaugh deserved a “presumption of innocence,” using phrases like “innocent until proven guilty.”
They are wrong on every level. (They would see that more clearly and easily if President Obama’s nominee, Merrick Garland, were the nominee undergoing the confirmation process and denying accusations of drunken sexual assault as a youth.)
Blasi-Ford’s testimony was about as compelling and truthful as anyone, anywhere, anytime has ever testified about anything.
“He said; she said,” is an argument someone uses when they are trying to defend him, and dismiss her. It has nothing to do with truth. It is not effective to support Kavanaugh, because she was compelling and truthful; he was not.
The confirmation hearing is not a trial to prove Kavanaugh’s guilt or innocence. It is a job interview. It is a process to decide whether to confirm Kavanaugh. There is no “presumption of innocence.” There is no “presumption of confirmation.” Kavanaugh must show he deserves the appointment. Anyone seeking that appointment has that burden… always.
As a trial lawyer, I understand “burden of proof” and how it operates. Whoever has the burden of proof, loses, when the proof is insufficient or even equally balanced. In the trial law, it’s called a “failure of proof” by the party with the “burden of proof.” It is a way of deciding, when the evidence is not otherwise decisive.
It is not “guilty, until proven innocent.” It is not “innocent until proven guilty.” The nominee is “confirmed if, when, and not until, proven worthy.” If she convincingly accuses, and he convincingly denies, and the committee is left not knowing who to believe, then he has not shown himself worthy of confirmation.
If you don’t know, you don’t confirm. Instead, you move on to another candidate, and repeat as often and long as necessary, until you find one that you know is worthy of confirmation.
In baseball, in a close play at first base, when the umpire does not know whether the ball or the runner arrived first, the rules say “a tie goes to the runner.” The runner is “safe.” The team on the field has failed to show the runner is “out,” so the runner is “safe,” even if it’s close, so close that the umpire cannot tell whether the ball or the runner arrived first.
In this confirmation hearing, a tie does not “go to” the nominee; it “goes against” the nominee. Kavanaugh, as nominee, has to show that he is worthy of confirmation, like the team on the field in a close play at first base has to show the ball was there before the runner. If the showing is inconclusive or “merely” balanced, the Senate Judiciary Committee, like the umpire, must declare the nominee “out” of the running.
Finally, even through the eyes of a non-lawyer, ignoring any burden of proof analysis, Kavanaugh, as the nominee, conducted himself in a way unworthy of confirmation. He was defensive and aggressive with those who challenged or disagreed with him. He was partisan and attacking. He was not collegial. He showed bad temperament and judgment. To continue the baseball analogy one more time –– three strikes and Kavanaugh is “out.”
This is true no matter what Kavanaugh did as a youth, and even if you completely disregard the compelling testimony of Blasi-Ford.
Although the issues: whether, who and how to appoint anyone to the US Supreme Court, are hugely important issues, the thing which I cannot “let go,” is how Blasi-Ford’s life was so painfully altered, so unfairly damaged.
I can still see and hear Blasi-Ford, the youth, in the face and voice of Blasi-Ford, the adult. As painful as that is, we must see and hear it, because it matters. Indeed, it matters most. God help us, it matters more than anything else in this sad reflection of State of the Union.
