The G-File

Law & the Courts

The Price of Victory

Supreme Court nominee Judge Brett Kavanaugh testifies during his confirmation hearing before the Senate Judiciary Committee, September 6, 2018. (Alex Wroblewski/Reuters)
The Senate should confirm Kavanaugh, but his elevation to the Supreme Court will escalate the Culture War.

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays.

Dear Reader (Particularly everyone I threw ice at in my youth),

One of the articles of faith of my personal definition of conservatism is to be deeply distrustful of enthusiasm. Chalk it up to misanthropy or enochlophobia if you like, but whenever crowds — real or figurative — get worked up, I grow suspicious. It’s why I don’t like populism or pep rallies; the worst political sins are almost always accompanied by the cheers of one mob or another.

That is one of the reasons I have been so appalled by the riot of anti-Kavanaugh hysteria that has spread these last few weeks. But it is also why I have misgivings about the price of victory.

I believe that confirming Brett Kavanaugh is vital, but I also believe it is the least bad option before us. Herewith, a screed-y walkthrough of my thinking. I still find myself largely agreeing with this thread:

Kavanaugh’s “partisan” defense of himself, while wholly justified on human and emotional grounds, poisoned the well for many people. It does not matter, as I wrote last week, that their arguments are substantively absurd and often drawn from bottomless reservoirs of cynicism and bad faith.

Judges are not typically expected to remain dispassionate when they’ve been accused of gang rape, nor should they be. If you don’t believe me, let’s haul, say, Justice Breyer before the Senate and see how he responds to unverified, uncorroborated, and patently ludicrous allegations — hyped endlessly in the press — that, when in high school, he kept a bunch of kidnapped girls in his basement and pimped them out to biker gangs.

“Senator Feinstein, thank you very much for your input. While all perspectives are valid, I feel that if you scrutinized my record you would find yourself in significant error,” Justice Breyer said while trimming his cuticles.

But the fact remains that millions of people, including many leading legal lights, have fallen back on this preposterous version of sexual McCarthyism that we might as well call “Bed Baiting.” Accuse someone of rape and then use whatever response they offer as proof that they’re unfit for the job or simply a monster. When Martha MacCallum asked Kavanaugh about the gang-rape allegation, he was too calm and dismissive. And his attempts to explain himself were then picked apart as fresh evidence of new deceits. When the Senate asked about them, he was too angry.

It’s like a high-stakes version of the Wayne’s World bit where Mike Myers mumbles, “Sphincter says what?” and when the person responds, “What?” everyone giggles.

Democrats proclaim, “Rapists say, ‘How dare you!?’” Then they call Kavanaugh a rapist, and when he says, “How dare you!?” Democrats say, “Ah-hah!”

Hourly, we hear people say with invincible confidence and a tone of haughty feigned reasonableness that this Supreme Court confirmation process is nothing more than a “job interview,” when they must know that if Kavanaugh were to withdraw, it would be the end of his career, the end of his reputation, and a total victory for the people deploying these tactics — setting a precedent for their use again and again. When you point out how unfair this is to Kavanaugh, the response is eye-rolling or even  “Boo hoo.” When you point out how dangerous this precedent is, you get such a spray of bovine excrement that it becomes a fog of nonsense.

When Merrick Garland Is Blocked, All Is Permitted

My favorite fecal nugget in the fog is the reply, again offered hourly, that Republicans have no right to complain about “hardball tactics” because Mitch McConnell declined to give Merrick Garland a hearing. Even if you concede — which I emphatically do not — that what Cocaine Mitch did was an outrage, this argument is so obtuse, so morally stunted, so non-sequiturially nonsensical it fills me with a vein-popping rage that would ruin my chances for confirmation as dog catcher (for which I am eminently qualified, by the way). “Two wrongs don’t make a right” barely scratches the surface of why this is so wrong. No conservative magazine ran articles painting Garland as a drunkard or rapist. Fox News didn’t run round-the-clock discussions based on the assumption that rumors of Garland’s rapeyness should be taken at face value. Even if blocking Garland was wrong, the response from Democrats is like an apocalyptic version of the “Chicago Way”: If they bring a knife, we bring a ten-kiloton warhead and wipe out the city.

You can’t have it both ways. If a confirmation hearing is “just a job interview,” denying someone a job interview cannot be an outrage on par with setting out to destroy Kavanaugh by any means necessary. In fact, it cannot be an outrage at all. Employers deny job interviews all of the time, and the Constitution gives the Senate all the authority it needed to deny Garland one. The Senate has yet to offer me a job interview for anything, and I’m not miffed about it one bit.

Meanwhile, the Senate minority leader said out loud that “there is no presumption of innocence” in the Kavanaugh fight. That alone should tell you all you need to know about the danger of letting Chuck Schumer’s party win this contest. Oh, and before you get your knickers in a twist, I realize that the full quote is, “There’s no presumption of innocence or guilt when you have a nominee before you.” It’s all about fact-finding. What a reasonable guy.

The problem is that Schumer is lying (you could tell because his lips were moving). Countless members of his party were quite open about how they were working from a presumption of guilt. Every senator who said, “I believe Dr. Ford” or, “believe all women” or celebrated Ford’s courage for “speaking truth to power” was openly declaring that they also believed Kavanaugh was guilty. Senator Hirono (D., Liberal Bubble) told Jake Tapper (one of the handful of mainstream journalists who hasn’t grabbed a torch or pitchfork and joined the mob) that she believed Ford because Kavanaugh’s judicial philosophy magically makes unsubstantiated charges of rape plausible. Where the fffffff**k is the fffffffact-fffffffinding there?

What about the Facts?

The liberal response to all of this is that I am taking for granted that Kavanaugh is innocent of the charges against him. So let me address that.

It’s basically true. What I mean by “basically” is that I think the things he’s provably guilty of shouldn’t matter. I think he drank “too much” in high school and college (so did I). I don’t need The New Yorker to tell me that because he has admitted to it. He’s also admitted that, when he was young and immature, he behaved immaturely. I am sure he threw ice at a bar. But while I am at least very skeptical about whether he drunkenly exposed himself at a party in college, even if he did, the evidence suggests that this was a piggish prank that is retroactively being turned into sexual assault. If it really took Deborah Ramirez, the second accuser, six days of lawyer-guided meditation to convince herself it happened, we can presume it wasn’t nearly as scarring an event as is now being claimed. If it happened at all.

Here’s the thing I’m not agnostic about: While The New Yorker humiliated itself by running not one but two stories on the allegation, neither of which corroborated the allegation in any way, the stories did corroborate that The New Yorker has lost its mind. They used a rumor to “corroborate” the allegation and then, in a follow-up story, found the alleged source of the rumor, who promptly declared that he has no idea what The New Yorker or Ramirez were talking about.

The Julie Swetnick gang-rape allegation was and is unbelievable codswallop. When interviewed by NBC, what started as a claim that Kavanaugh was the Cruise Director of the H.M.S. Gang Rape turned into a charge that he might have been seen standing by a door or a punch bowl or something. Michael Avenatti’s only defense for his scam is to feign outrage that a “survivor” isn’t being taken at her word. Kavanaugh should sue him, and Avenatti should be disbarred so that he can spend his time selling waterbeds as God intended.

Then there’s Dr. Ford, whose claim is the only one that is both serious and sufficiently credible to warrant serious consideration. And that is what she got.

Still, what evidence there is about the time period in question, outside of Ford’s testimony, overwhelmingly supports Kavanaugh. The relevant witnesses at the time either do not corroborate or affirmatively refute key facts. Her story lacks crucial details, and other crucial details have changed over the years.

Moreover, many of Ford’s claims about why and how she came forward are profoundly fishy. Was she really never told that investigators would come to her in California as an alternative to the televised Senate hearings? Her story about the polygraph gets weirder with the slightest scrutiny. Her claim that she’s claustrophobic and terrified of flying has been rebutted both by sworn witnesses and plain facts. The only documentary evidence she had, her therapist’s notes, which she referenced in her testimony, she now refuses to hand over to the Senate — unless the FBI takes a very long, and very politically convenient, time collecting it. Joseph McCarthy used to say that he had a documentary proof of his charges — “I have in my hands a list of Communists” — but when asked to provide the list, he always found an excuse to keep it secret.

I still believe something terrible may have happened to Ford. I still think it’s not impossible that she’s telling the truth — but she has been behaving in a way that suggests that she is more eager to play political games, or that she is willing to let her lawyers play political games on her behalf, than she is in telling the complete truth.

Meanwhile, the Boofer-Truther Media has endeavored mightily to argue that, while Ford’s story may be unprovable, you have to look at the totality of the allegations against Kavanaugh. Hence, the desperate attempt to chum the waters with innuendo and insinuation: He must have blacked out from drinking (because that would mean his memory is unreliable); if he threw ice while drunk, that proves he was the kind of belligerent drunk who could rape somebody or even run a rape gang; if “boof” means buggery, he’s a sexual reprobate; and if “Devil’s Triangle” means a three-way, it means he wasn’t a virgin, and, again, “Raaaaape!”

But even if these inventive interpretations were true — they’re not — it’s not proof of anything other than the fact that his yearbook page was juvenile. The press, however, has worked tirelessly to insist that no single allegation has to be proved true; what matters, according to them, is that the totality of unproved slanders, insinuations, and innuendos should be taken as a miasma of guilt, a soup of slander. The boof, they insist, is in the pudding.

Perhaps the greatest proof of the media’s malfeasance can be found in that fact that, according to new a Harvard poll, when voters are told that there is no corroboration for the allegations against Kavanaugh, support for him spikes 20 points. Thank God for pollsters doing the hard work journalists won’t do.

The Downward Spiral

For these and countless other reasons, I want the anti-Kavanaugh mob to lose. I’m less enthusiastic about the pro-Kavanaugh forces winning.

Chuck Schumer was technically correct in his floor speech Friday morning. There are plenty of other judges who’d be just as good, or possibly better, on the Supreme Court from a conservative perspective. And, if all the senators and journalists complicit in this grotesque scandal were to publicly apologize and atone, like Henry in the snows of Conossa, for what they have done, vowing to never do it again, and admitting that they’ve been fiendishly unfair to Kavanaugh, I’d willingly swap another contender from Trump’s list for him.

Kavanaugh the man is not indispensable, and even though I think his critics are wrong, his presence on the Court will have costs. It will lend credibility — unwarranted in my mind — to arguments about the illegitimacy of the Court and any decisions that break 5-4 with Kavanaugh as the deciding justice. I absolutely agree with my colleagues, however, that these concerns are overblown and disingenuous when offered by anti-Kavanaugh forces, who will say anything to win. But the mere fact that they feel so free to say it has consequences is because actual American citizens will believe it.

The Widening Gyre

When a bunch of lawyers announced that Kavanaugh’s “temperament” disqualified him from the Supreme Court, Glenn Reynolds replied:

Obviously, I think there’s truth to this. But I think such issues are better understood with dynamic scoring. I’m on record arguing that Trump has had a corrupting effect on conservatism and democratic norms, generally. I still believe that, rather passionately.

But the point here is that whatever blame Trump deserves needs to be set in the context of a wider corruption. Trump was nominated and elected in substantial part because many conservatives rightly believed the system was already corrupt. Hillary Clinton, the matriarch of the Medicis of the Ozarks, was a profoundly corrupt figure. As was the vast network of organizations dedicated to extending the Clintons’ grift back into the White House. Donald Trump didn’t invent the Right’s animus for the press, he simply concentrated it into a kind of barbaric yawp.

Sick of a Republican party that tried too hard to work within the borders of what the mainstream media deemed acceptable rhetoric and tactics, his voters loved it when he gleefully singled out reporters by name, like a kid going after ants with a magnifying glass on a summer day. As I wrote earlier this week, the press has been asking for this treatment — literally for decades.

The problem for journalists is that, having refused at every turn to learn their lessons, from Walter Duranty to Daniel Schorr to Dan Rather, they have repeatedly responded by doubling down on their worst instincts and groupthink. And now, as Trump turns his MAGAfying glass on them, they are intensifying their worst habits.

But it’s not just the press; it’s everybody. In other words, it’s not so much that Trump has exposed the corruption of various institutions and individuals; it’s that everyone feels warranted to respond to his norm-breaking with norm-breaking of their own. The New York Times’ Anonymous op-ed writer did something terrible because he thought Trump gave him an excuse to do it. Cory Booker lacked the testicular fortitude to actually be Spartacus, but he rightly recognized that everybody wants either to be a Spartacus or to rally to one.

If Kavanaugh is confirmed, you can be sure that liberals will feel entitled to respond with even more grotesque violations of norms. After all, if denying Merrick Garland a hearing justifies — in their minds — the witch-hunt against Kavanaugh, what horrors will they come up with if he’s confirmed? Already Michael Avenatti, that Torquemada of sleaze, is calling for packing the Supreme Court should the Democrats take back the Congress.

Again, I think the Senate should — must — confirm Kavanaugh, because the consequences of rejecting him are worse than the consequences of confirming him. But there will be bad consequences no matter what, because we now live in a world where sub-optimal outcomes are the only choices available. It’s crap sandwiches all the way down the cafeteria menu, everybody — you just get to choose your condiments.

Various & Sundry

I am exhausted. In the last few weeks, I’ve been to St. Louis, Oklahoma City, Fort Worth, Dallas, Claremont, Phoenix, and Milwaukee, just to name a few. I got back this morning from Boston, or I guess Cambridge. I spoke to the Institute of Politics there last night. And Saturday, I leave for Santa Barbara where I will be speaking this Sunday at UCSB. If you’re in the area, it’d be great if you could come on out. It’d be nice to have some friendly faces in the audience. Oh, and on Tuesday, I’ll be at Cedarville University. And on Thursday and Friday, I’ll be at Notre Dame<. I’ll be having a conversation with Charles Kesler about Donald Trump and on a panel discussing Patrick Deneen’s new book.

And on that note, let me say how deeply grateful I am to all of the folks who came out to these other events. I know from experience that the folks who really hate me don’t show up at these things, so the sample is skewed. But the turnout has been great, and the encouragement almost makes up for all the hassles of travel. It also gives me a good deal of hope.

Canine Update: Oh, so speaking of travel, it’s always great to hear from people who tell me to stay the course or stick to my guns. But it’s funny how vastly more people tell me — almost in a threatening tone — that I’d better not listen to the haters who say I should stop it with the dog tweets and canine updates. It’s just funny how big of a deal the canine duo has become. About two weeks ago, when I was out of town, my wife was driving the beasts back from their morning perambulations, when someone pulled up next to her and yelled, “Hi Zoë! Hi Pippa!” and then drove off. Then, yesterday, the same thing happened to me. It was particularly funny because, when the guy looked at me, he acted like I might as well have been an Uber driver or some celebrity’s assistant. Just a little nod was all I got.

Anyway, the doggers are excellent. They still get super mopey whenever I take out the luggage, which is all-too-frequent. Pippa had a bit of a limp earlier this week but it seems to have been a temporary glitch. She was in rare form when she got back from her midday adventure today (and even Zoë busted out the playfulness). This is one of the weird things about Pippa; even when she gets back from a real workout, she gets a sudden burst of energy for about 10-15 minutes that needs to be ignored so that her rest subroutine can kick-in. Similarly, one has to tread with caution when she’s in rest mode — very different than full-sleep mode — because she can be triggered into spazzy “where’s the tennis ball?” mode very easily. Meanwhile, Zoë’s having a great time chasing foxes, getting reunited with her best friends (Pippa’s more of a sister), and chasing bunnies, even though Pippa keeps ruining it for her. Zoë’s even being slightly more tolerant of Pippa taking her coveted spots. But don’t worry, Zoë still gets the scritches.

The latest Remnant is out, and I think it’s definitely one of the best conversations we’ve had in a while. Jonathan Haidt and Greg Lukianoff are really impressive, and their book is insanely important.

ICYMI . . .

Last week’s G-File

Kavanaugh is not a tribalist automaton

My latest Special Report appearance

The latest Remnant, with Jonathan Haidt and Greg Lukianoff

How the press has made the Kavanaugh spectacle worse

My interview with Chris Stirewalt on Pat Buchanan populism

Justifying Kavanaugh’s “anger”

The press’s Kavanaugh groupthink

SS-GB is great

The latest GLoP Culture podcast

Kavanaugh wouldn’t be a partisan justice

And now, the weird stuff.

A horse walks into a bar . . .

Royal drama

What could go wrong?

Obscure VHS tapes

Magnetic fields are powerful

Selfie deaths

Fat-bear week

Academic hoaxes

Drunk birds

Urine-addicted goats

Hoarding acorns

Dancing raccoons

We have our queen

Europe’s oldest intact book

Charles Dickens’ pet ravens

The bubble nebula

Line-based illusions

The most Swedish thing ever

Guy adopts stray dog that ran with him

Jonah Goldberg — Jonah Goldberg holds the Asness Chair in Applied Liberty at the American Enterprise Institute and is a senior editor of National Review. His new book, The Suicide of The West, is on sale now.

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