Friday, September 28, 2018

Evaluating the Blasey Ford / Kavanaugh Hearing

by Michael C. Dorf

Yesterday was excruciating. I can only imagine what it was like for women (and men) who are themselves survivors of sexual assault.  I really really really wanted to write about something else today. But I'm a constitutional law professor and whether the Senate confirms Brett Kavanaugh to the Supreme Court is an extraordinarily important question. I continue to think--as I wrote last week--that the ultimate stakes for legal doctrine are low: If Kavanaugh is rejected or withdrawn, the Senate will confirm a very conservative replacement one way or another. Nonetheless, what happens next will shape the particular path of the Court and of constitutional politics for a generation or more. I feel some obligation to weigh in. Herewith a few observations.

(1) Dr. Blasey Ford was extremely credible.

(2) The GOP senators' strategy -- fully endorsed by the nominee in both his prepared remarks and in answering questions -- was self-contradictory. On one hand, the Republican senators and Judge Kavanaugh complained about what they regarded as a last-minute leak to derail the nomination but were often careful to say that they blamed their Democratic colleagues rather than Dr. Blasey Ford herself. Yet on the other hand, they -- again, including Kavanaugh -- repeatedly used words like "smears," "ridiculous," and "sham" to refer not only to complaints about the process but about all of the allegations. This is a contradiction, because the Republicans -- again including Kavanaugh -- ALSO repeatedly said that Blasey Ford deserved to be heard. But having heard her very credible testimony, they then tried to dismiss it without doing the one thing that would undercut it: offering some hypothesis roughly as believable as that she was accurately describing what happened and Kavanaugh either has forgotten what happened or was lying.

(3) Instead, the Republicans' strategy seemed to have the following components:

a) Point out that a long time has passed, so maybe Blasey Ford is misremembering;

b) Point out that Blasey Ford did not recall a number of details, so maybe she is misremembering.

Both a) and b) would be plausible were it not for the obvious fact that Blasey Ford both said she was 100% certain that she was attacked by Kavanaugh and gave a very clear explanation (based on her psych expertise and consistent with the scientific literature) for how she could be clear in her memory about some details but not others. Republicans did not offer any good response to that. Instead, they (at the risk of annoying the reader, I'll say again, including Kavanaugh) used the following additional components of their strategy:

c) Mischaracterize the statements of other witnesses as denials, when in fact the relevant people said they did not remember the events described by Blasey Ford;

d) Lament the absence of other evidence for which they themselves were chiefly responsible, especially the failure to subpoena Mark Judge;


e) Most prominently and consistently, insist that Kavanaugh could not have done what he was credibly described as having done because that would be inconsistent with his character.

That last point is pretty clearly the most important, because it speaks to Kavanaugh's character, which is highly relevant to his fitness to serve on the Supreme Court. My view, for what it is worth, is that the Republicans could have argued that whatever 17-year-old or college-age Kavanaugh may have done when drunk in the 1980s, there is no serious risk that he will assault anyone now, and so none of this really matters. I personally would not have found this a persuasive argument, but a lot of people might have. However, for whatever reason, Kavanaugh and the Republicans instead pretty clearly conceded that if Blasey Ford was correct in what she described, then that would disqualify him from serving on the Court.

This brings me to:

(4) Kavanaugh demonstrated at least three character deficiencies.

a) Unlike prior Republican nominees who have made a great show of nonpartisanship -- Clarence Thomas stripping down like a runner, John Roberts just calling balls and strikes, and for that matter, Democratic nominees using similar metaphors -- Kavanaugh directed his rage expressly at Democrats and "the left." One wonders how he will be able to dispense justice dispassionately as a Supreme Court justice (if confirmed) or, for that matter, as an appeals court judge (if not confirmed).

b) After the first round of hearings, I noted how Kavanaugh's answers with respect to various questions but especially abortion seemed exceptionally carefully crafted to mislead. There is also a plausible argument to be made that he outright lied about what he knew about files hacked by Manuel Miranda and his role in prior confirmations when serving in the Bush administration.

Kavanaugh continued the pattern during yesterday's hearing. I've already alluded to his mischaracterization of what other alleged party-goers said; he described people who didn't recall the events Blasey Ford described as having denied that they occurred. In addition, he avoided calling for an FBI investigation when asked repeatedly. Following Senator Grassley's misleading lead on this point, he noted that the FBI reports don't draw conclusions. That's certainly true, but the FBI has investigative resources that the Judiciary Committee lacks. And he continued to contradict what numerous people who knew him in college say about his drinking at that time.

Given the political constraints of the appointments process, all nominees are somewhat misleading in what they say and don't say. Kavanaugh seems to have gone substantially further in his lack of candor.

c) I'm hardly the only person to have noticed that Kavanaugh displayed the opposite of a judicial temperament yesterday by sneering, shouting, and occasionally sobbing. I will grant that this was a highly personal and thus highly emotional set of charges. If Kavanaugh is genuinely innocent of the charges or even if he just sincerely believes himself to be genuinely innocent, then it is completely understandable that he would be extremely upset. However, he is a judge who wants to be a justice. Standard instructions from judges to juries ask the jurors to resolve cases by disregarding sympathy and emotion. Anyone who plays a leading role in the legal system should be able to exercise at least as much control of his own emotions as we ask of laypeople serving on juries.

Is jury service the wrong analogy? Fine. Consider criminal defendants.

Every day, in courtrooms around the country people are accused of wrongdoing as serious or more serious than that which Kavanaugh has been accused of. Unlike Kavanaugh, those people face the possibility of long prison terms or, in some cases, even the death penalty. Some people accused of such serious crimes are innocent. If any of them acted out in the way that Kavanaugh did yesterday, they could be held in contempt of court. At the very least, an experienced lawyer would implore a client not to show the kind of rage that Kavanaugh did.

Now it might be objected that a defendant in a criminal case has various due process protections that were lacking in Kavanaugh's hearing, but which way does that cut? Kavanaugh had several advantages that criminal defendants typically lack. For instance, the process was structured with a prosecutor cross-examining the complaining witness rather than cross-examining him (and when she sort of tried to do that, the Republican senators unyielded their time). More fundamentally, the part of the process that seemed to outrage Kavanaugh the most was that almost a dozen days passed between when the charge against him was made public and when he had an opportunity to defend himself. He was "outraged." He thundered that he had "demanded" a hearing "immediately." For nearly two weeks, he railed, he was unable to clear his name.

Yet under the Speedy Trial Act defendants in federal criminal trials can be made to wait 70 days after indictment until trial and in practice substantially longer to clear their names. How much longer? Consider that in a 2013 case, a federal appeals court ruled that a defendant who had to wait three-and-a-half years between indictment and trial did not have either his statutory or constitutional speedy trial rights violated. The court therefore affirmed the defendant's fifteen-year prison sentence. Guess who was a member of the three-judge panel that affirmed that disposition. Did you say Brett Kavanaugh? Bingo.

So to be clear: Kavanaugh thinks that it's fine to make a defendant wait three-and-a-half years after being indicted for a crime to be able to have a chance to clear his name (or be proven guilty), even though he faces the anxiety of facing a long prison sentence, may be in pre-trial detention, and is expected when on trial to comport himself with dignity and respect, but for Kavanaugh himself, waiting a week and a half for a chance to have a hearing for a promotion is an outrage that justifies sneering rage.

(5) Kavanaugh's inability to control his rage at having to face an indignity much less serious than the sort he thinks perfectly appropriate for the hoi polloi whose cases he judges does not merely demonstrate lack of an appropriate judicial temperament. It also lends a ring of truth to the various characterizations by people who knew him as a young man who have described him as belligerent when drunk. Given Kavanaugh's sober belligerence yesterday, it is entirely plausible to envision him as a mean drunk. And that, in turn, adds credibility to the allegations of Blasey Ford.

I'll end there for now. I expect to write at least one follow-up post, although its content will depend very much on what the Senate does next.


Joe said...

A little thing noted: Kavanaugh has written, including as a judge as I recall, the value of polygraphs, but in his testimony said it was not to be trusted when it was used against him.


1. the quality of being honest and having strong moral principles; moral uprightness.

2. the state of being whole and undivided.

He doesn't have it.

Jeff Melton said...

Great analysis. Why do you presume he was sober yesterday, though?

Shag from Brookline said...

I became eligible to vote with the 1952 elections that included Richard Nixon as Ike's VP running mate. In the course of the presidential campaign that year, I became aware of much about Nixon's political career. I liked Ike but could not, as a liberal, buy into Nixon. I voted Democrat. The campaign in the Fall of 1952 overlapped with my ConLaw course in my second year of law school. During Nixon's two terms as Ike's VP, issues about Nixon surfaced and he used TV for political PR purposes to address them. Then came the 1960 presidential campaign and JFK prevailed over Nixon. (I was early in my law practice that began in 1954 interrupted by two years military service that had been deferred while I was in college and law school.) Two years later Nixon attempted a comeback via CA politics but did not prevail. Nixon stated he would no longer be kicked around. But Nixon resurfaced politically in 1968, winning a closely contested presidential victory. Then we had Watergate that surfaced in his second term, with events forcing him to resign.

I mention the above to reflect upon the hearing yesterday before the Senate Judiciary Committee on Judge K's confirmation. I caught the beginnings of Dr. Ford's testimony but then had to leave for the Thursday liberal (some progressives) lunch. Upon my return home, I was able to pick up with Judge K's opening statement and the follow up questioning. That opening statement was to a geezer like me Nixonian, continuing as such through questioning by Committee members. Recall Nixon asserting "I am not a crook." to Judge K's responses on some of the allegations made against him. While one could say that Judge K was Trumpian in his testimony, I'd say he was more Nixonian.

I was struck by the fact that while Republican Committee members deferred to a female prosecutor selected by them to question Dr. Ford in their 5 minute interrupted phases with Democrat Committee members, with the questioning of Judge K the female prosecutor only questioned Judge K for a few 5 minute segments before the Republican Committee Senators decided to take matters into their own male hands. The female prosecutor's questioning of Judge K had focused on the alleged sexual aspects. It seemed to me that the Republican Senators might not have thought that line of questioning would benefit Judge K, so they "courageously" took over the questioning themselves, which consisted more of political attacks on the Democrat Committee members. Can we ever forget Sen. Lindsey Graham (Cracker, SCar) smearing Democrats crackerly before asking Judge K if he was a serial rapist? Sen. Graham's screed will be repeated and repeated not just in the next few weeks or months, but for years, perhaps the historical, and perhaps hysterical, moment of his life.

Neil said...

What do you think about how he handled the questions about his yearbook? He seems to have lied about ALL of them, and it's almost impossible to make a case that he didn't lie about any of them. This alone is very concerning. He could have apologized for it as childish nonsense, but instead he lied about every issue and even suggested the postings might have been edited by the yearbook staff. This is no way for a Justice to behave.

maw274 said...

I have wondered about the Republicans' insistent rush to confirm Kavanaugh before the beginning of the Court's October Term. Could it be that they want him seated in order to take part in Gamble v. U.S., No. 17-646, cert. granted 6/28/18? The question presented is "Whether the Court should overrule the 'separate sovereign' exception to the Double Jeopardy Clause?" Orrin Hatch has filed an amicus brief in support of overruling the exception. While the underlying case does not involve Presidential pardons, I wonder what might be at stake here. -- Mary Ann Willis

David Ricardo said...

While much of the discussion has focused on the lack of an FBI investigation after the charges came to light, but the equal and maybe more important failure is the fact that the Committee would not allow any collaborating evidence or witnesses to be introduced.

A basic tenet of our justice system is that a party in a dispute may bring in evidence to support their position. I suggest that never in the history of this nation has a trial taken place where the only admitted evidence is the testimony of the parties. If a judge today limited a plaintiff or defendant to only testify directly and not introduce other evidence such a judge would be immediately overruled in appeal, even by Judge Kavanaugh.

Additionally, it is clear that the strategy of the Republicans in concert with Kavanaugh was to limit Democrats to five minutes and then for Kavanaugh to filibuster any question so that in effect the Dems were made powerless to pursue the truth.

The hearing was much more representative of the old Soviet show trials than any serious attempt to get at the truth. This man should not never sit as judge in a small claims court, much less his current position or on the Supreme Court.

Joe said...

Ruth Bader Ginsburg has supported ending the dual sovereignty rule which has some negative implications for defendants. It is something that might split the Court, but I'm unsure the vote is 4-4 at the moment. And, the implication by some it is to prevent Trump from benefiting seems a bit of a stretch too. Anyway, it won't affect him for quite some time probably. I wouldn't focus on that myself, but there might be some cases in the upcoming term (which starts Monday) some Republicans are concerned about.

Clyde said...

I found the heavy partisanship by Kavanaugh to be especially unnerving. Do you have any thoughts on whether having an admittedly partisan justice will materially diminish the credibility of the court and start us down the path of a constitutional crisis? I may have misheard, but I believe he referred to himself and the Republican senators as “us” at one point. Considering the amount of anger he displayed, it doesn’t seem to be beyond the realm of possibility that he would find ways to use his seat to get back at the Democrats that were trying to “smear his name.” And, even if this weren’t his motivation, it would be hard to get the stink off him. Justice Roberts can at least pretend to fairly call balls and strikes. It will be difficult for Kavanaugh to do so with a Red Sox hat on.

Along this same line of reasoning, another thing about Kavanaugh’s hearing yesterday that was especially distasteful was how on display Kavanaugh’s arrogance and ruthless ambition was. There are some who are as na├»ve as me who like to think that a judge is not the same as a politician. A judge is scholarly, honorable, thoughtful, and selfless. A judge puts the sanctity of the court above all else. The fact that Kavanaugh would so quickly throw away the at least appearance of the non-partisanship of the Supreme Court to further his own interests clearly shows that this is not the case for him. He needs that Supreme Court seat. He deserves it. The sanctity of the Supreme Court be damned.

Jack Krooss said...

Law and logic do not allow a paradox. It can not both be true that Dr. Blasey Ford's account is believed and it is believed that Kavanaugh did not attempt to rape her.

Dr. Ford stated with 100 percent certainty that it was Brett Kavanaugh. To believe that he did not do it one has to conclude either that she is lying or mistaken.

If there is some doubt about whether she is lying or mistaken then it is necessary to exhaust all avenues of investigation to remove doubt before rendering judgement. To not do so is to knowingly confirm someone that you acknowledge may be an attempted rapist on to the Supreme Court.

The Republicans argument that the matter was sprung on them at the last minute is completely immaterial to the substance of the allegation. Either you believe that Dr. Ford is definitely lying or mistaken or you are voting for someone who you believe very well could have committed a heinous crime. The timing of the emergence of the allegation might be frustrating, but it is not a reason to vote for someone you suspect of committing attempted rape.

In this sense what we are witnessing is a willful miscarriage of justice. Republicans know, or at the very least suspect, which is enough, that Dr. Blasey Ford is telling the truth. The whole truth, including the identity of her attacker. That it was Brett Kavanaugh-100%-in the room that night. Yet, every one of them, knowing this in their heart, is voting to elevate him to the Supreme Court.

Make no mistake about this. Republicans have decided to confirm someone each of them, at the very least, suspects of attempting to rape a 15 year old child to the Supreme Court of the United States.

So it comes down to one simple question. "Do you believe Dr. Blasey Ford might be telling the truth and is not mistaken?" That is all. You do not need any certainty. If you acknowledge this possibility, then you are voting for someone you suspect committed attempted rape. There is no middle ground.

Unknown said...

Agreed. Someone is lying. It seemed as if he was backed into a corner and was fighting his way out. The best defense is a good offense, right? I believe Kavanaugh is guilty of being at the party, andcommitted the crimes such as described by Dr. Ford. K testified he never blanked out from alcohol, so he can't use that as an excuse, either. The main lie, "I wasn't there,(in the house)."

Unknown said...

@Clyde - Hey, wait just a minute, Clyde. As a loyal Red Sox fan, I take offense to the allegation that/characterization of, this cap as a "Red Sox" cap.

If it must be, in fact, red in color, then it has to be a Yankees cap attempting with all its might to transmogrify itself into a Red Sox cap. After all, that is any cap's lifelong ambition!!!

NochoBusiness said...

I've never seen a judge get so mad that snot comes out of his nose, ever. Kavanaugh went as far as to say that he'll do anything to prove his innocence BUT submit to an FBI background check.

Joe said...

For those who did not see it yet, Prof. Sherry Colb, another contributor to this blog, wrote a piece on how to weigh the testimony here:

It was published in my local newspaper. The author is described thusly:

"Colb is professor of Law & Charles Evans Hughes Scholar at Cornell, where she teaches evidence and has written about rape."

Charles Evan Hughes was a justice and later Chief Justice to the Supreme Court and I believe is a role model of CJ John Roberts himself. He was respected by different ideological judges as a fair and competent leader of the Court.