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to think--as I wrote last week--that the ultimate stakes for legal doctrine are low: If Kavanaugh is rejected or withdrawn, the Senate will confirm a very conservative replacement one way or another.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.