Law & the Courts

The Character Assassination of Brett Kavanaugh

(NRO Illustration: Elijah Smith; Jim Bourg/Reuters)
There are honorable ways to oppose a nominee with whom you disagree. Kavanaugh’s Democratic critics have chosen to go the dishonorable route, instead.

There is certainly an honorable way to oppose the nomination of Brett Kavanaugh. It’s simple. A progressive senator can simply declare that he or she does not agree with Kavanaugh’s judicial philosophy, explain why, and vote against him. There is no constitutional rule that declares a senator must vote for every qualified Supreme Court nominee.

There’s also an honorable way to investigate Kavanaugh’s fitness for the bench, regardless of his judicial philosophy. A judge at any level — much less the Supreme Court — should exhibit a basic and enduring commitment to honesty and integrity. So, yes, scrutinize his record. Diligently investigate his background. If a serious character issue emerges, expose it.

But it’s low and dishonorable to skip the principled opposition and simply smear a good man, engaging in cheap character assassination as Judge Kavanaugh’s Democratic opponents have this week.

For those keeping score at home, millions of Americans have now been exposed to false and ridiculous claims that Kavanaugh is a slippery perjurer who surrounds himself with racists and a cold, dark soul who deliberately snubbed a murdered child’s father.

The latter two claims date back to the first day of his hearing, when the online Left erupted with claims that former Kavanaugh clerk Zina Bash had flashed a white-power symbol during the hearing. It turns out that Bash is a Mexican-American immigrant with a Jewish father, a descendant of Holocaust survivors. So, no, she’s not a white nationalist.

The same day, activists claimed that Kavanaugh actively refused to shake Fred Guttenberg’s hand. Guttenberg is the father of a student murdered in February’s Parkland, Fla. school shooting, and he approached Kavanaugh in the scrum following a break in the hearing. Just as Guttenberg, a complete stranger to Kavanaugh, stuck out his hand, security arrived and ushered Kavanaugh away. This was then cravenly spun into an outrage by the progressive Internet.

Then there are the perjury claims. Writing in the widely read online journal, Above the Law, writer Elie Mystal charged that Kavanaugh committed perjury when, during the 2004 hearing from which he was confirmed to the D.C. Circuit court of appeals, he told Ted Kennedy “that he was ‘not involved’ in Bill Pryor’s nomination to the Eleventh Circuit. In fact, Mystal said, “He was involved. In documents made public during Senator Pat Leahy’s questioning, Kavanaugh is shown to have recommended Pryor, and invited to actively discuss Pyror’s hearings.” As proof of the alleged lie, Mystal embedded this tweet:

With a dramatic flair, he then declared, “This. Is. Perjury,” before adding an ominous warning:

If Kavanaugh is confirmed, the Democrats will now have grounds to call for his impeachment every single day for the literal rest of his natural life. He perjured himself before Congress. We now have more on him than we had on Bill Clinton.

Shocking stuff. Or not.

In an extended Twitter thread, the founder and former managing editor of Above the Law, David Lat, thoroughly dismantled Mystal’s claim. It turns out that Kavanaugh’s testimony was far more extensive than the single sentence Mystal cited. Given the full context, once can clearly see that Kavanaugh was telling the truth.

As Lat explains, different lawyers in the White House counsel’s office were assigned different circuits as their “portfolio.” Kavanaugh explained at his hearing that he was not assigned the Pryor nomination — so he wasn’t “handling” Pryor’s confirmation. But, even then, Kavanaugh said in his testimony that he participated in the process:

So, in context, the meaning is plain: The Pryor nomination wasn’t his to handle, but he did assist in some ways. It’s right there, in black and white.

Perjury? Not by a long shot.

Writing in Slate, Lisa Graves also claimed that Kavanaugh should be “impeached, not elevated” for supposedly perjuring himself. She argued that the judge deliberately lied when he testified he did not see any information stolen from Democrats by former GOP Senate aide Manuel Miranda in the early 2000s. Here’s the relevant portion of Kavanaugh’s testimony:

“I don’t know what the universe of memos might be, but I do know that I never received any memos, was not aware of any such memos.”

Graves claimed that Kavanaugh actually did receive information she believes “plainly” came from stolen Democratic talking points. Perjury, right? Not so fast. Even a panel of experts convened by Vox threw cold water on Graves’s legal theory. There is a long distance between an inaccurate statement and the kind of willful, deliberate falsehood that constitutes a federal crime. Brooklyn law professor Miriam Baer said that “she didn’t see any lie” in Kavanaugh’s response. He simply testified that he didn’t realize the material was stolen.

All of these claims raise a simple question: “Why?” Why did so many people — often egged on by informed partisans who should’ve known better — immediately rush to believe the worst about Kavanaugh’s character and motives?

There are people who think the ends justify the means, and it is just fine to destroy a man’s good name to keep him off the High Court by spreading falsehoods. So, yes, malice is part of the explanation, but it’s only part. In my experience most partisans aren’t intentionally malicious. Rather they believe Kavanaugh’s philosophy is ipso facto proof of his low character. They look at a person who may overturn Roe, who voted to overturn Washington D.C.’s assault-weapons ban, and who has written opinions that they believe empower religious bigots, and they think, “This is a bad man.” Thus, when they see a former clerk make an “Ok” sign, or watch Kavanaugh turn away when a Parkland father extends his hand, or listen to his testimony, they immediately interpret each experience through the prism of their distaste.

That’s negative polarization at work. You see it all the time. The very idea that Kavanaugh was appointed by Trump means that he’s “lost the benefit of the doubt.” The very notion that he thinks the original public meaning of the Constitution may not include federal protection for a right to an abortion means that he hates women. Heck, even originalism itself (in the telling of the truly blinded activist) is believed to be a ruse — a philosophical disguise for naked partisanship and outright bigotry.

In other words, in their minds, they’re not engaging in character assassination so much as character revelation.

It’s sad that this is news to some, but people of good faith and high character can and do come to competing conclusions about originalism, abortion, gun control, and religious liberty. Evidence of opposition is not, by itself, evidence of evil, and we would be well-served by ceasing to pretend that it is. There is overwhelming evidence that Brett Kavanaugh is a good and intelligent man who is a faithful adherent to a particular judicial philosophy. You can honorably oppose that philosophy, but you cannot honorably smear the man.


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