Law & the Courts

The Complete Case for Kavanaugh

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Jim Bourg/Reuters)
The truth matters, and the truth is proved with evidence.

As we approach the final confirmation vote for Brett Kavanaugh, it’s important to reflect back and take stock of the complete case against him – at least the complete case since Christine Blasey Ford came forward in the Washington Post to accuse him of sexual assault. This accusation launched an agonizing, frenzied public debate that often raced far ahead of the evidence and was deeply influenced by personal pain and personal stories that had nothing to do with Brett Kavanaugh or any of his accusers.

In reviewing the record, we see time and again the same pattern. Serious accusations are made, conventional wisdom sets in, and then the accusation unravels. The pattern holds with the claims of sexual assault, indecent exposure, and gang rape, and it holds with allegations of perjury. Simply put, the evidence does not support the sexual misconduct claims against Kavanaugh, nor does it support the claims that he lied to defend himself.

Before turning to this evidence, let’s address a few more subjective matters. First, there are a number of people who claim that Kavanaugh bears the burden of disproving the allegations against him, in part because the Senate confirmation process isn’t a judicial proceeding, but rather a “job interview.” Once “credible” claims are raised, a nominee has to prove that he’s wholly innocent of the charges against him – otherwise, a cloud of suspicion will darken his entire term on the Court.

This is an argument with surface appeal, but it’s impractical and unjust in application – especially in deeply partisan times. As the Julie Swetnick gang rape claims illustrate, partisans will seize on any allegation, no matter how facially implausible, and declare it to be “credible.” The idea that a man or woman’s good name can be smeared and destroyed by a person who comes forward, offers a claim, and then refuses to provide evidence or to fully cooperate in a resulting investigation is a recipe for an endless cycle of charge and countercharge.

The bottom line is that the truth matters, and the truth is proved with evidence. Since Kavanaugh’s liberty isn’t at stake, it makes no sense to require his accusers to prove their case beyond a reasonable doubt. At the very least, however, they should be able to carry the lowest possible burden of proof, the civil litigation standard of a preponderance of the evidence. In other words, is it more likely than not that the claims against Brett Kavanaugh are true?

Second, there are those who argue that Kavanaugh’s angry, emotional, and sometimes flippant responses to Democratic senators showed that he doesn’t have the “temperament” to be a Supreme Court justice. Yet Judge Kavanaugh’s judicial temperament is well-known. He’s served on the federal bench for more than a decade without the slightest indication that he is swayed by emotion or bias. Moreover, in the first phase of his Supreme Court confirmation hearing – even under tough and sometimes condescending questioning – he handled himself with restraint and dignity.

So, what changed between the first and second hearing? The answer is obvious, he was not just accused of sex crimes, he was accused of perhaps the most heinous crime imaginable – gang rape. And many of his accusers were operating in blatant, obvious bad faith. They were willing – eager, even – to destroy him to keep him off the Supreme Court. The hearing that followed was no longer just a “job interview” but his single-best chance to clear his name, restore his reputation, and defend his family. For a man facing such claims, the Supreme Court seat is but one consideration – and likely not the most important.

Yes, in that circumstance, fury and emotion aren’t just proper, they are arguably necessary. And if the specific targets of his fury come before his court, they are free to make a motion for recusal. Just as, for example, the Trump White House is free to ask Justice Ginsburg to step aside from considering any claims brought by or against his administration after her own, sharp (and entirely unprovoked) political commentary.

One final thing regarding his temperament. I’m struck that many of the most vociferous critics of his demeanor also happen to believe he’s guilty of the claims against him. Thus, his testimony didn’t represent the desperate appeal of an innocent man facing an unjust charge, but rather a howl of rage from an entitled man who was seeking to take what was his. Yet those who believe he is innocent, but condemn him for his temperament, are imposing one of the more uncharitable standards for human behavior I’ve ever seen in public life.

Please, tell us, when falsely accused of gang rape, when your family is facing death threats, and when you know that your political opponents are engineering and timing allegations to inflict maximum damage on you personally, what is the proper amount of anger? The answer to that question is invariably and inherently subjective, but given the gravity of the claims against him, basic human decency requires granting him considerable latitude in evaluating the emotion of his response (just as it requires granting his accuser a similar amount of grace in evaluating her demeanor).

The actual substantive claims against Kavanaugh are far less subjective. They must be taken seriously, and we must weigh the evidence. Let’s do that now.

Christine Blasey Ford’s claims aren’t credible.

The first and most serious claim against Kavanaugh is Dr. Ford’s allegation that one evening, at a house party in Maryland, he brutally attacked her in an upstairs bedroom. The story is terrible. She claims he held her down, put his hand over her face so forcefully that she feared for her life, and that he tried to remove her clothes. The terrifying assault only stopped when a stumbling-drunk Mark Judge knocked him off her.

If true, this claim is disqualifying. If true, this is no “boys will be boys” prank. It’s an assault that verges on attempted rape. But the evidence simply doesn’t support this claim. In fact, her claim is worse than just “uncorroborated,” it’s contradicted – sometimes even by her own testimony and her own evidence. And her behavior since bringing the claim raises further doubts about its veracity.

Consider the following, undisputed facts about her testimony and the evidence she’s provided. Not one of the witnesses that she’s put forward have backed her version of events – not even her own friends. At best they’ve said they have no recollection of the party. Her friend, Leyland Keyser, went further, declaring through her attorney that “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”

Moreover, Dr. Ford herself has provided conflicting accounts of her age at the time of the attack and the number of attendees at the party. Even the evidence of the details of the attack isn’t uniform. Her therapists’ notes allegedly indicate that four boys were present, not just Kavanaugh and Judge. She claims these notes are erroneous, but contemporaneous notes of a conversation are almost always far more reliable than a years-later recollection of that same conversation.

Dr. Ford’s conduct since coming forward has also been disturbing. When making a serious claim against another person, it is the obligation of the accuser to come forward with evidence. Instead, she has withheld evidence – including her complete therapists’ notes and the complete polygraph record. She has defied the Senate Judiciary Committee and refused to fully cooperate with its investigation. In a civil litigation context, the persistent refusal to hand over relevant evidence can lead to dismissal of a plaintiff’s claim. In this context, it should at the very least lead to a negative inference about the contents of the withheld evidence.

In the search for corroboration, a number of Democrats have placed great store in a July 1, 1982 entry in Brett Kavanaugh’s calendars. It states, “Go to Timmy’s for Skis w/Judge, Tom, PJ, Bernie, Squi.” According to the Democratic theory, because Ford testified that “Skis” was short for “brewskis” (beer), and because Mark Judge and “PJ” were allegedly at the party where Ford claimed she was assaulted, this could be the documentary evidence that the party took place.

Interestingly, no Democratic senator explored this theory with Kavanaugh while he was testifying, and Ford’s team never raised it, either. It was left to be floated after Kavanaugh was off the stand.

But the entry doesn’t support Ford’s claims. As I’ve explained before, “Timmy’s” house was ten miles from the country club Ford has described as in proximity to the party, and it did not meet the description of the house that Ford offered in her testimony. Second, the lineup of attendees does not mention a single female and is substantially different from the one she has described. And finally, the lineup includes “Squi,” the nickname for Chris Garrett, a boy Ford was (according to her testimony) seeing at the time. It would be odd indeed to remember a party’s attendees and forget that one of them was your then-boyfriend.

Moreover, the FBI interviewed most of the individuals listed on the calendar entry, including Garrett and Timothy Gaudette (“Timmy”) and still determined that there is “no corroboration” of Dr. Ford’s claims.

Deborah Ramirez’s allegations aren’t credible.

The next claim made against Kavanaugh – that he exposed himself to Ramirez at a party at Yale – was facially deficient and clearly unsupported by any meaningful evidence. In the version of the story she told to Ronan Farrow and Jane Mayer in The New Yorker, Ramirez confessed to drinking heavily. She confessed to memory gaps. Incredibly, she even said that she only felt comfortable coming forward “after six days of carefully assessing her memories and consulting with her attorney.”

No first-hand witness can corroborate her story. The New Yorker story stated that the magazine “has not confirmed with other eyewitnesses that Kavanaugh was present at the party.” The New York Times went even farther, interviewing “several dozen people.” It not only couldn’t find anyone to corroborate the story, some of those Yale classmates told the Times that Ramirez wasn’t even sure Kavanaugh had exposed himself.

In normal times, a story like this wouldn’t have even made it to print. But it was not only published in one of the nation’s premiere magazines, it “merited” an FBI investigation. The results of that investigation? “No corroboration” of Ramirez’s claims.

Julie Swetnick’s allegations aren’t credible.

The last meaningful claim against Kavanaugh was also the most fantastical and grotesque. The day before Kavanaugh’s testimony, rabble-rousing lawyer Michael Avenatti released Swetnick’s sworn declaration claiming that she saw Kavanaugh “waiting his turn” for gang rapes after facilitating them by spiking or drugging the punch at highschool parties. She claimed that she went to multiple such parties and was gang raped at one of them, though she would only assert that Kavanaugh was present on that occasion.

The allegation was immediately suspect and facially absurd. It required believing that Georgetown Prep students committed serial rapes in front of multiple non-victim witnesses and everyone kept their mouths shut for decades. It required believing that a woman would repeatedly and voluntarily attend parties where known gang rapes were occurring.

The Wall Street Journal interviewed “dozens of former classmates and colleagues” and could find no one to corroborate Swetnick’s claims. A brief review of Swetnick’s background revealed legal claims against her for fraud and defamation, including a claim she manufactured false sexual harassment claims against former colleagues.

And then, when she sat down for an interview by MSNBC, everything fell apart. She contradicted her sworn declaration, took back her claim that Kavanaugh “spiked” punch at parties, took back her claim that she saw him “lined up” waiting his “turn” for a gang rape.

Moreover, when MSNBC tried to corroborate her story, Swetnick “provided four names of friends she says went to the parties with him. One of them says he does not recall a Julie Swetnick. Another of the friends she named is deceased. We reached out to the other two and haven’t heard back.”

There was never any merit to Swetnick’s claims.

Brett Kavanaugh did not commit perjury.

Even as Democrats have pressed the claim that the sexual misconduct claims against Kavanaugh are disqualifying, they’ve pursued a parallel argument that even if he is innocent of any of the allegations, he disqualified because he lied when he testified in his own defense. These alleged lies are clustered around two primary topics – testimony about his drinking and testimony about the meaning of terms and phrases in his yearbook.

It’s certainly true that perjury is disqualifying, yet a close examination of the perjury claims against Kavanaugh reveal, at worst, factual disputes about long-ago events. At best, the evidence thoroughly vindicates Kavanaugh’s accounts.

Let’s deal first with his drinking. To evaluate his veracity, let’s begin with what he actually did – and did not – assert under oath. He did not assert that he never drank too much. He did not assert that he never got sick when he drank or that he did not fall asleep while under the influence of alcohol. In fact, he testified that he did, in fact, sometimes have too much to drink.

He specifically denied that he ever “blacked out” from drinking or that he drank so much that he could not remember what happened the night before. While a number of people claim that Kavanaugh “downplayed” his drinking, no one has been able to demonstrate actual memory loss. His former roommate has said that he saw Kavanaugh in a state that he “would consider” blackout drunk, but the idea that a subjective, three-decade-old memory proves that Kavanaugh perjured himself when he testified to the state of his own mind is sheer fantasy.

The various yearbook controversies represent an argument over the meaning of inside jokes and 1980s slang. For example, Democrats have claimed that Kavanaugh perjured himself when he said the word “boof” in his yearbook entry meant “flatulence” instead of anal sex. This led of course to a frenzy of what my colleague Robert VerBruggen amusingly called “boof sleuthing.”

The conclusion? It turns out that “boof” can mean any number of things. It can mean anal sex, it can also mean “smuggling drugs in an uncomfortable place,” and – yes – it can also mean flatulence. Here’s an L.A. Times writer who graduated from Georgetown Prep some years later:

He also tweeted that he “could not recall” any other meanings. Proof of perjury? Hardly.

Democrats also claimed that Kavanaugh lied about the term “devil’s triangle.” They said it meant a threesome – sex involving two boys and one girl — while Kavanaugh said it referred to a drinking game. Once again, the precise definition of old slang was at issue, and once again there is evidence supporting Kavanugh’s definition. This time, it came from the very people who claim to have invented the drinking game in question.

In a letter to the Senate Judiciary Committee, four Georgetown Prep students told their story:

“Devil’s Triangle” was a drinking game we came up with in high school. It was a variation on the game “Quarters.” When we played “Devil’s Triangle,” four people sat at a table. On the table, three small glasses of beer were arranged next to one another to form a triangle. Each of the four participants took turns being the “shooter.” The shooter attempted to bounce a quarter into one of the glasses. If the quarter landed in one of the glasses, the person at the table sitting nearest that glass had to drink the beer.

At worst there exists a dispute about the meaning of decades-old-slang. At best (for Kavanaugh), there is convincing evidence that his explanation is correct.

The same is true for his interpretation of the letters “FFFFF” (which Michael Avenatti claimed had a vile sexual meaning.) It turns out that there is corroboration for the notion that it referred to a funny way that a friend of Kavanaugh’s said the F-word.

Further, it is an extraordinary stretch to claim that Kavanaugh’s explanation for the phrase “Renate Alumnius” represents perjury. He parsed his words carefully, calling it a “clumsy” way to “show affection.” He also expressed deep regret that she’d been mentioned in such a fashion, which certainly implied that the meaning appeared inappropriate and disrespectful. Kavanaugh’s language was imprecise.

So, while the yearbook language may well refer to sexual activity – and the innuendo seems plain – Kavanaugh’s language is vague enough to encompass a variety of meanings. Interestingly, however, both Renate Dolphin and Brett Kavanaugh deny that they had any sexual relationship. How could it be obvious perjury to deny an explicitly sexual meaning to the term when the two relevant parties both deny they had a sexual relationship?

Finally, while it is difficult to keep track of the shotgun-blast of perjury allegations, NBC has suggested that Kavanaugh lied when he told the judiciary committee that he had not “discussed or heard discussion about the incident matching the description given by Ms. Ramirez to The New Yorker” before its publication. Yet NBC uncovered text messages indicating that Kavanaugh was working to mount a defense before The New Yorker ran its story.

[Question]: Well, actually, are you aware that the New York Times passed up on this story before The New Yorker ran the story?

Judge Kavanaugh: That’s what I read in the New York Times.

[Question]: What’s your reaction to that?

Judge Kavanaugh: They couldn’t — the New York Times couldn’t corroborate this story and found that she was calling around to classmates trying to see if they remembered it. And I, at least — and I, myself, heard about that, that she was doing that. And you know, that just strikes me as, you know, what is going on here? When someone is calling around to try to refresh other people, is that what’s going on? What’s going on with that? That doesn’t sound — that doesn’t sound good to me. It doesn’t sound fair. It doesn’t sound proper. It sounds like an orchestrated hit to take me out. That’s what it sounds like.


In other words, Kavanaugh knew that Ramirez was “calling around to classmates,” but he didn’t know of the specific “incident matching the description.” There is no conflict here. It’s not conceivably perjury.

During the #MeToo moment, Americans have gotten used to a certain pattern. A woman will bravely come forward and confront a powerful man, and in the drip, drip, drip of news revelations that follow, the evidence accumulates. You don’t have to merely “believe women,” you are able to believe evidence. Corroboration piles on corroboration and then, typically, the abuser resigns or is fired.

In this instance, the pattern has reversed. Dr. Ford’s claim was at its strongest two weeks ago, when she came forward in the Washington Post. Since then, the drip, drip of revelations has unraveled her case. She has changed her story. The witnesses she identified at best can’t corroborate her claims and at worst offer testimony that undercuts her allegation. Not only would no reasonable prosecutor bring a criminal case based on these facts, no reasonable litigator would believe they could make a civil case for assault.

And, keep in mind, Dr. Ford’s allegations is the best-supported of the three relevant claims against Brett Kavanaugh.

Kavanaugh’s nomination fight doesn’t take place in a vacuum. The nation is deeply divided, and the intensity of the Supreme Court fight is the product of decades of political dysfunction and judicial overreach that have artificially enhanced its power. Large numbers of Democrats believe Trump is an illegitimate president, they have watched as he has smeared his opponents with some of the most outrageous claims in modern politics (remember when Ted Cruz’s father may have helped kill JFK?)

Like it or not, we have reached the point where tens of millions of Americans simply do not care about the truth. They scorn civility. But we cannot reach the point where evidence no longer matters, only outcomes. We cannot sacrifice a man’s reputation on the altar of politics, no matter how consequential the political dispute.

At the same time, however, we cannot simply assume that our political opponents are always, everywhere acting in bad faith. Even if elected Democrats vote in near-lockstep, there are millions of Americans who will genuinely wonder, “Is a sex abuser and/or a perjurer about to ascend to the Supreme Court?”.

The evidence is overwhelming that the answer is no. The evidence indicates that Brett Kavanaugh faced false or mistaken claims, responded to those claims with understandable and appropriate emotion, and contested them with truthful testimony. He should be confirmed, and if he’s confirmed expect him to serve until he retires with dignity, intellectual rigor, and the same deep commitment to judicial ethics that we’ve seen throughout his entire career on the federal bench.