Dishonest or Incompetent?

I’ll make clear again from the outset that I believe Dr. Blasey Ford’s allegation of an attempted sexual assault by Judge Brett Kavanaugh. I further believe that this is entirely sufficient to deny him confirmation to SCOTUS.

That said, I think that the more effective tactic to take in the media if one wants to get the sexist Republican Party senators to vote against his confirmation is not to stress Dr. Blasey Ford’s testimony more than it has already been stressed. No, it should continue to be covered at similar levels to now, but what needs to be ramped up isn’t that. It’s the argument that Kavanaugh’s testimony is by itself also sufficient reason to deny his confirmation. The Intercept (a publication for which my respect declined in proportion with the decline in my respect for Glenn Greenwald, but which nevertheless does publish some – perhaps many – good things) has taken a similar tack. In a recent piece, Intercept authors Briahna Gray and Camille Baker attempted to demonstrate to non-lawyers and non-law students just how damaging Kavanaugh’s testimony on its own ought to be:

KAVANAUGH’S APPARENT WILLINGNESS to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and dissembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

Note that here, if you’re not certain since they weren’t explicit, they’re trying to say that the excuse of misunderstanding a question does not save Kavanaugh. If he can’t parse the meaning of the questions as asked because of his own filters, then he won’t be able to parse other questions or statements that are necessary to resolve the questions at issue in cases that come before SCOTUS. Back to the Intercept:

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job.

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor?

“DUE PROCESS” MEANS fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, has thrown that into serious doubt.

Aside from the terrible phrase “parsing hairs”, Gray and Baker are dead on here. I expect the Republicans to ramble on about how bitches dems be lyin, and I think that they’ve frankly committed themselves to the fallout of their overt sexism and their overt stand against the idea that committing sexual assault might make one less fit for a seat on SCOTUS. However, I don’t think they’ve yet taken a stand to the effect that dishonesty under oath should not make one less fit for a seat on SCOTUS, nor do I think they’ve even thought about the ramifications of attempting to deploy the excuse of Kavanaugh misunderstanding questions.

Hammer your senators on the import of Blasey Ford’s testimony. However, if you’re calling your senators, I think you should also hammer them on these important issues of Kavanaugh’s dishonesty and his inability to parse important questions when the stakes are high.

[h/t to Mano for bringing the Intercept piece to my attention. I don’t normally read the website except when another outlet links to it and would never have found it without the writing of my FtB colleague.]





  1. Curt Sampson says

    Peter Beinart claims that the support for Kavanaugh is driven by an existential fear:

    Trumpism, at its core, is a rebellion against changes in American society that undermine traditional hierarchies. It’s based on the belief that these changes, rather than promoting fairness for historically oppressed groups, actually promote “political correctness”: the oppression of white, native-born Christian men….
    Even more alarming for many conservatives is that, until recently, Kavanaugh’s alleged offenses would have carried few consequences. Liberals have moved the goalposts. It’s a bit like the complaint that conservatives are now called bigots for opposing gay marriage—for retaining a view that was mainstream and bipartisan not long ago….Kavanaugh might be just the beginning. Who knows—conservatives worry—what previously tolerated behavior liberals might try to destroy Republicans for practicing next?…
    Every new allegation shows just how vulnerable America’s shifting gender norms make Republicans: the party far more dominated by men. And thus every new allegation convinces conservatives that they might as well defend Kavanaugh now rather than fight the next cultural battle after having ceded precious ground….
    Conservatives…fear a kind of cultural delegitimization—a liberal rewriting of America’s moral code so that conservatives are forever deemed too sexist or racist to hold jobs like associate justice of the Supreme Court.

    This seems plausible and, if true, it means that it doesn’t matter what the other (to my mind, too, disqualifying regardless of this whole Ford affair) problems with Kavanaugh are: his clear partisanship (extending even to rants against a particular political party), his dissembling, his lack of analytical precision, none of these make any difference. He, or someone like him, must be able to sit as a judge on the Supreme Court or the whole hierarchy is starting to fall apart.

    Much as I’m horrified by the idea, I think it’s likely that Kavanaugh will be confirmed and, in the small chance he isn’t, almost certain that someone similar (if with luck not quite as extreme) will be confirmed. For men like him and the Republican senators, removing some discrimination against small minorities such as gays is a threat to their values, but removing even some discrimination against a group as large as women is a clear and direct threat to their power.

    There’s an idea in philosophy of ethics that, when you consider how a society should be organized, you should ask yourself if you would be happy (or at least feel it were fair) to be born into any random position in that society. Were I reborn today in the U.S. I would still far prefer to be born (again) as a man than a woman.

    Unfortunately, once SCOTUS goes conservative it’s going to stay that way for another two decades. This means that, at least in the U.S., that it’s going to be, ceteris paribus, better to be a man than a woman will probably not change in my lifetime.

    That’s rather depressing. I don’t even work particularly hard on this fight and already I’m tired of it. I can’t imagine what it must be like to be one of the people really affected by this, having fought for so long, and still have so much more ahead.

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