Monday, October 01, 2018

The Kernel of Truth in Brett Kavanaugh's Conspiracy Theory

by Michael C. Dorf

During his prepared remarks at last Thursday's hearing, Judge Brett Kavanaugh claimed that he has been the victim of an "orchestrated political hit" and "smears" emanating from the "left." Republican senators repeatedly echoed this complaint. Yet the vast left-wing conspiracy theory has a glaringly obvious problem. As Senator Khamala Harris made clear in her questioning of Kavanaugh, it doesn't explain why Democrats are targeting Kavanaugh for supposedly false allegations now when they did no such thing to the previous Trump SCOTUS nominee. Here's the exchange:
HARRIS: I’ll point out to you that Judge — Justice now — Neil Gorsuch was nominated by this president. He was considered by this body, just last year. I did a rough kind of analysis of similarities — you both attended Georgetown Prep, you both attended very prestigious law schools, you both clerked for Justice Kennedy, you were both circuit judges, you were both nominated to the Supreme Court, you were both questioned about your record — the only difference is that you have been accused of sexual assault. How do you reconcile your statement about a conspiracy against you with the treatment of someone who was before this body not very long ago? 
KAVANAUGH: I explained that in my opening statement, Senator. Look at the evidence here, the calendars, look at the witness statements, look at Ms. Keyser’s statement.
Note that Kavanaugh does not even try to answer Harris's question. His opening statement does not refer to Justice Gorsuch in any way, not explicitly or implicitly. What he is saying, in essence, is that he thinks the evidence against him does not stand up, which is tendentious but in any event has nothing to do with the question Harris posed: What's his account of Democrats' supposed willingness to make stuff up about him but not Gorsuch and, for that matter, not Roberts or Alito before him? Neither he nor any of the Republican members of the Senate Judiciary Committee attempted to answer that question.

As a service, I'll suggest an answer for them and then explore where it leads.

Before helping my Republican friends out, I'll state the null hypothesis: Democrats and the "left" more broadly did not target Gorsuch (or Roberts or Alito) with "smears" for the same reason that they are not now targeting Kavanaugh with "smears." In each case, Democrats assess the credible evidence of the nominees' character, veracity, and temperament for a Supreme Court seat. While there were differences of opinion about judicial philosophy and values that motivated many Democrats to vote against the confirmation of Gorsuch, Roberts, and Alito, there was no credible evidence casting doubt on their respective character, veracity, or temperament; with Kavanaugh, by contrast, in addition to differences over judicial philosophy and values, there now is credible evidence calling into question his character, veracity, and temperament. Indeed, much of the evidence calling into question Kavanaugh's veracity and temperament came from Kavanaugh's own unprecedented behavior before the committee last week.

What can be said on behalf of the Kavanaugh/GOP conspiracy theory and against the null hypothesis? Playing devil's advocate, I can think of two points.

1. One might think that the reason that Democrats didn't go after Gorsuch (or Roberts or Alito) hammer and tong was that the timing of those nominations was different. Gorsuch was nominated in early 2017. Roberts and Alito were both nominated in mid-2005. Those were not election years. Thus, if Democrats had succeeded in blocking any of the prior Republican nominees of the last couple of decades, it would have done them no good, as they would have been faced with an equally conservative replacement. By contrast, the "eleventh hour" allegations against Kavanaugh come on the eve of a mid-term election during which Democrats have a roughly 1/3 chance of taking the Senate and, if they do, they can run out the clock by emulating the GOP approach to Merrick Garland (and then some).

I have little doubt that some Democrats in fact are hoping for a scenario like the one just described. Indeed, whoever leaked Dr. Christine Blasey Ford's allegations to the press in the first place may very well have been hoping to block any Trump nominee. However, there are numerous problems with the timing theory as the basis for a far-reaching Democratic/left-wing conspiracy.

First of all, by hook or by crook, Mitch McConnell and Chuck Grassley won't allow it. As I've said before, if Kavanaugh goes down, the Republicans will get some other very conservative nominee through the Senate, during the lame-duck session if necessary.

Second, the timing-wouldn't-have-worked hypothesis doesn't apply at all to Roberts and Alito. In 2005, Republicans held 55 Senate seats, but at the time the cloture rule had not been nuked, so Democrats who wanted to play hardball could have filibustered any Republican nominee--and would have had good reason to do so if such a nominee had been credibly accused of sexual misconduct. So the failure to bring forward bogus charges against Roberts and Alito cannot be chalked up to simple futility. Sure, it's possible that had Democrats or "the left" cooked up bogus allegations against Roberts or Alito in 2005 the Republicans would have "gone nuclear" then, but why would that have deterred Democrats in 2005 when, according to Kavanaugh, Lindsey Graham, and their fellow conspiracy theorists, it hasn't deterred them now against Kavanaugh, when the confirmation threshold has already been lowered from 60 to 50 votes?

The timing argument works a little better with respect to Gorsuch. Maybe Democrats who think that pushing the Kavanaugh nomination past the midterms will leave the seat open until 2021 would not have thought that they could push the Gorsuch replacement nominee that far back. Still, color me dubious. Democrats were every bit as engaged during the Gorsuch nomination as they were during the (pre-sexual-assault-allegations portion of the) Kavanaugh nomination. Kavanaugh cited anger about the 2016 election as part of his conspiracy theory, but the anger was even more raw at the time of the Gorsuch nomination. Moreover, Democrats--especially Senate Democrats--had an additional reason to contest the Gorsuch nomination "by any means necessary" that doesn't apply to Kavanaugh: He was nominated to fill the very seat that the Republicans had denied President Obama the chance to fill.

When one weighs all of the evidence, no reasonable person can conclude that the Democrats and shadowy left-wing forces have been conspiring to invent unfounded allegations against Republican SCOTUS nominees. If they were, they would have done so to Gorsuch and probably Roberts and Alito too. The null hypothesis survives.

2. But that brings me to what I think is a better, albeit more limited, version of the Republican's conspiracy theory. It's not that Democrats and "the left" are concocting false allegations; but they are using plausible allegations opportunistically.

All over the Internet these past two weeks, I have seen memes from right-wingers contrasting Democratic expressions of concern about Brett Kavanaugh's behavior with Democratic indifference to the alleged crimes of Bill Clinton and, more currently salient, Keith Ellison. The claim is that Democrats are hypocritically using the allegations against Kavanaugh.

The standard response to this sort of argument goes under many names: whataboutism; two wrongs don't make a right; the tu quoque fallacy; etc. Those are all fair responses. If what Kavanaugh is credibly alleged to have done is very wrong -- and Republicans, including Kavanaugh himself freely admit that it is -- then the fact that other people might be getting away with similar or equally wrongful conduct is no reason to excuse Kavanaugh.

It's also worth noting that there does seem to be a difference here. Many Democrats stood by Clinton for far too long, but since the #MeToo movement, Democrats have been more likely to be abandoned quickly when credibly accused of serious misconduct. Al Franken (whose conduct was bad but nothing on the order of what Kavanaugh allegedly did) was cast aside; no one rushed to defend NY AG Eric Schneiderman; and prominent Democrats are quite appropriately calling for a serious investigation of the allegations against Ellison.

Does that mean that no Democrats are using the Kavanaugh allegations opportunistically? Of course not. But it's too much to expect that, given the stakes, political actors would not try to take advantage of the opportunity to frustrate the goals of their political opponents.

In an ideal world, I would support a system in which political actors of both parties have the right incentives to act against sexual and other misconduct, regardless of the political affiliation of the accused. For example, if it were possible, I would want to see a Republican appointed to fill out the term of a Republican member of the House or Senator who resigned due to revelations of prior serious misconduct, even if the governor of his state were a Democrat--and vice-versa. We can imagine a similar system for judicial nominees. For example, Senate Democrats might promise Republicans that they will agree to a process for filling the Kennedy seat expeditiously if Kavanaugh is voted down or withdrawn and another, similarly conservative nominee (one of the other recent finalists, say) were put forward.

Is such a scenario likely in the current environment? I doubt it. Republicans are fighting so hard to confirm a pretty clearly compromised nominee because they worry that his defeat will deprive them of the chance to fill the seat, and even Democrats who might be inclined to accept a deeply conservative nominee without the veracity and temperament challenges Kavanaugh has (to say nothing of the substantial chance of a violent youth) probably can't make the promise I'm imagining without risking demoralizing and angering the Democratic base.

Sure, the typical Democratic base voter thinks, as between, on one hand, a justice who'll overturn Roe v. Wade, ban affirmative action, and proclaim a Second Amendment right to assault rifles who is also an ill-mannered prevaricator with a possible history of violence and, on the other hand, a justice who'll vote the same way but is temperamentally better suited to the job, the latter is preferable. However, such a voter will think, the substantive voting pattern actually matters a great deal, so Democrats should play hardball, just like the Republicans are playing.

Bottom Line: Judge Kavanaugh and Republican senators have no answer to Senator Harris's question; they're right that some Democrats are using the charges against Kavanaugh opportunistically; but that doesn't make the charges less serious or provide a reason to vote to confirm him rather than someone else with similar substantive views; in a better world that's what we would end up with rather quickly, because it's in everyone's interest; but we don't live in that better world, so expect more scorched earth.