Should Judge Kavanaugh Be Removed from the Bench? The Question We Ought to Be Asking

In the rush to send the nomination of Judge Brett Kavanaugh to the full Senate for a vote, the Judiciary Committee’s chairman, Sen. Chuck Grassley (R-Iowa) allowed only hours, not even a full day, to assess Thursday’s testimony. Hardly anyone, not even President Donald Trump, could deny the credibility of Christine Blasey Ford’s gut-wrenching testimony. And what was plain to those who had been closely tracking publicly available information before the hearing is that Kavanaugh gave several false statements. Even friends and early endorsers, much to their horror, observed this. Some have chosen to remain publicly silent following Thursday’s hearing, others have not.

By Friday morning, a systematic analysis of Kavanaugh’s testimony was still lacking. Nobody could perform such a task in so short a period of time. The surprise, last-minute move by Sen. Jeff Flake (R-Ariz.), however, provided the breathing room for that kind of detailed examination to follow.

But what question should such an examination hope to answer? The solemn inquiry of whether an individual should be placed on the Supreme Court involves, in significant part, a risk assessment. For example, if there were specific reasons to determine a real risk exists that a nominee has an ongoing substance abuse problem, then the nation could not entrust that person with life and death situations including emergency requests that sometimes need to be handled in the middle of the night. Or, if there were specific reasons to determine a serious risk existed that a nominee had recently engaged in morally depraved acts, then we, as a nation, could not entrust him or her to decide questions of right and wrong over the fate of the country. That is if there were specific reasons to determine a real risk. That standard of probability is not designed to protect the rights of the nominee, to be sure. It is to safeguard the nation’s core interests by making every effort to guarantee the proper functions of the highest court in the land. It’s another way of describing the exercise as a job interview, not a criminal trial, with an understanding of the stakes. Think of it as a job interview with a very strict national security background check for a lifetime appointment in which removal from office, even if new information emerges, is almost inconceivable.

How should this apply to the assessment of Kavanaugh? The question is not simply whether Kavanaugh engaged in sexual assault 36 years ago, nor whether he gave false testimony about it last week. If just the first or both of those were true, it would mean Kavanaugh dragged a victim of his sexual assault (and her family, and his) through an unfathomable re-traumatizing experience in front of the world. That would amount to nothing less than an an  unforgivable and morally depraved act—committed not over three decades ago but rather last week. What’s the probability this happened?

Let’s turn to the evidence. Ford’s testimony is not just evidence, it is highly credible evidence. And Kavanaugh’s testimony contains several instances of false evidence.

How much weight should you apply to Ford’s testimony alone? Professor Rebecca Hamilton described it well:

”Testimony is evidence. If Ford is credible, as she is largely acknowledged to be, her testimony should be given the evidentiary value it deserves. In most U.S. courts, credible testimony alone can be enough for a criminal conviction. And for good reason. In sexual assault cases, the perpetrator and the victim are often the only ones present at the scene of the crime. If credible victim testimony did not stand as evidence, then there would be even less justice for survivors of sexual assault than there is already. (Also important to keep in mind, is that confirmation hearings are about assessing the fitness of a nominee – a task involving a significantly less demanding standard of proof than that required in a criminal, or even civil, trial.)”

In addition to several indicia for credibility, Ford’s testimony is also corroborated to some extent by her therapist’s notes, Kavanaugh’s own calendar, the dates of employment of his friend Mark Judge that summer, the yearbook entries of both young men at the time, and witnesses to their drunkenness.

How should you assess Kavanaugh’s testimony? If you want to get to the ground truth, Nathan Robinson provides a near-definitive account. The article is over 10,000 words, and I highly recommend spending the time it takes to read every one of those words if you seek the truth and want to understand the scale of Kavanaugh’s falsehoods big and small. It is the kind of meticulous analysis that was only possible with the benefit of time that Flake, intentionally or not, provided. Even more information has come to light since his article was published, but Robinson provides a sort of capsule summary of his analysis at the end:

”What does it say about this country that this is the state of our discourse? That Kavanaugh even stands any chance of being made one of the most powerful figures in the American government, with control over life and liberty? That a man like this is even a judge? He went before the United States Senate and showed total contempt for his vow to tell the truth. He attempted to portray a highly esteemed doctor as a crazy person, by consistently misrepresenting the evidence. He treated the public like we were idiots, like we wouldn’t notice as he pretended he was ralphing during Beach Week from too many jalapeños, as he feigned ignorance about sex slang, as he misread his own meticulously-kept 1982 summer calendar, as he replied to questions about his drinking habits by talking about church, as he suggested there are no alcoholics at Yale, as he denied knowing who “Bart O’Kavanaugh” could possibly be based on, as he declared things refuted that weren’t actually refuted, as he claimed witnesses said things they didn’t say, as he failed to explain why nearly a dozen Yale classmates said he drank heavily, as he invented an imaginary drinking game to avoid admitting he had the mind of a sports jock in high school, as he said Ford had only accused him last week, as he responded to his roommate’s eyewitness statement with an incoherent story about furniture, as he pretended Bethesda wasn’t five miles wide, as he insisted Renate should be flattered by the ditty about how easy she was, as he declared that distinguished federal judges don’t commit sexual misconduct even though he had clerked for exactly such a judge.”

Some of these lies were so outrageous that even some conservative/Republican commentators seemed stunned. Former director of the FBI, James Comey, made his views known implicitly in a tweet that quoted a standard jury instruction:

“If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness’ other testimony and you may reject all the testimony of that witness.”

Comey drew the line specifically to Kavanaugh. “Small lies matter, even about yearbooks,” he wrote. Something similar happened with Lawfare’s Ben Wittes, who had earlier (long before sexual allegations surfaced) admonished liberal critics, “One of the reasons to oppose him is not that he’s some kind of terrible person. He’s a thoroughly decent and honorable person.” But in the aftermath of the testimony, Wittes retweeted his friend Comey and added a caption stating, “Once upon a time, a judge I very much admired”—notice the past tense—signed a judicial opinion setting forth a similar principle of evidence, which Wittes added “has been haunting me all day.” That judicial opinion, which Wittes excerpted, affirmed “the well-settled principle that false exculpatory statements are evidence – often strong evidence – of guilt.”

How then to evaluate Kavanaugh’s lies? This is not just a question of the jury instructions and principles of evidence that Comey and Wittes cite. Even more damning in Kavanaugh’s case are that several lies—including about yearbook references to sexual conquest, whether real or not, and about high school and college alcohol consumption—don’t just go to the question of his overall truthfulness. Those lies relate directly, materially to the question whether he participated in sexual assault under the influence of alcohol.

Unless some surprising exculpatory evidence for Kavanaugh emerges from the ongoing FBI investigation or other sources, he does not pass the standard for elevation to the Supreme Court.

We have lost sight of so many things in this hyper-politicized atmosphere. However we got to this point in the process—by hook or by crook—which can be investigated later, vital information has emerged and it now casts a dark shadow over Kavanaugh’s potential role on the Supreme Court. On Friday, conservative thought leader Bill Kristol wrote,

“If I had to vote today, I think I’d be a No. … given where we are, wouldn’t a future Court with a different constitutionalist justice be healthier for the nation—and for constitutionalism?”

The answer is a resounding yes, and perhaps Democrats should negotiate a fast consideration of another Supreme Court nominee to replace Kavanaugh and help bring the country back from this abyss.

Where we’ve also lost perspective is how the question at hand has been framed. The allegations against Kavanaugh are so serious and credible, and the number of people who have directly contradicted his testimony are now so vast, that the central question cannot simply be whether he should be made an associate justice of the Supreme Court, but rather whether he should continue to serve on the bench at all. That’s not just because of what he may have done 36 years ago, but because of what he may have done over the past few weeks including to Ford and in providing testimony before the Senate.

Whether he should remain on the bench turns on a different and more onerous standard of proof. And it should be answered by a thorough investigation with no artificial time limits. If more exculpatory evidence does not emerge in that process, however, then Kavanaugh is in deep trouble. The two strongest pieces of evidence that now weigh against him are Ford’s testimony and his own. “False exculpatory statements are evidence – often strong evidence – of guilt,” Judge Kavanaugh once acknowledged in a judicial opinion. Those words have rightfully come back to haunt him.  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.