Magazine | October 15, 2018, Issue

The Mob and Judge Kavanaugh

(Roman Genn)
Democrats’ standards of evidence are as low as politics demands

Even before Professor Christine Blasey Ford alleged that Judge Brett Kavanaugh had sexually assaulted her when they were both teenagers, the Left was inflamed with fury against the judge.

Kavanaugh was the nominee to replace Anthony Kennedy, the swing justice on a Supreme Court that has grown more and more important. He was the nominee of an unprecedentedly polarizing president, Donald Trump. And his nomination came after Senate Republicans had, in the minds of most Democrats, “stolen” a previous seat on the Supreme Court by declining to take up President Barack Obama’s nomination of Merrick Garland and then confirming Trump’s nominee, Neil Gorsuch.

Many liberals were thus able to convince themselves, on the flimsiest of pretexts, that Kavanaugh was guilty of serious misconduct — again, even before almost anyone in Washington, D.C., had heard of Blasey Ford. Liberal senators, activists, and journalists accused him of lying repeatedly in previous congressional testimony.

Kavanaugh had said that when serving in the George W. Bush administration he was not the person “primarily handling” the nomination of Charles Pickering to a federal judgeship. He was, however, involved in discussions about the nomination. In written testimony he had said he was not in charge of managing the nomination of William Pryor to another judgeship but did play a smaller role; in oral testimony he spoke more loosely, saying he was “not involved in handling” the nomination. Kavanaugh had said, while discussing that administration’s policies on interrogating detainees suspected of terrorism, that he was “not involved in the questions about the rules governing detention of combatants.” It was later re­ported that Kavanaugh had advised his colleagues that the Supreme Court might frown on denying combatants access to lawyers.

During the Bush years a Republican Senate aide got access to his Democratic colleagues’ documents about judicial nominees. Questioned about the breach, Kavanaugh said he did not see these documents while allowing that some of the information he got from others may have been derived from them.

In none of these cases is it clear that Kavanaugh was trying to mislead anyone. Nor would anyone who paid close attention have been misled. Still, several liberal commentators and law professors said that he had committed perjury and that he should be impeached and removed from his existing judgeship, not just denied confirmation to the Supreme Court.

When Blasey Ford went public with her allegation, then, liberals were primed to believe it. They already thought poorly of Kavanaugh and they had a motive to believe the accusations. Their ideology also included a strong predisposition to “believe women,” as they frequently put it, when they accuse men of sexual misconduct against them. If a woman made an accusation against a prominent Demo­crat, ideology and political self-interest would clash, and liberals would be divided. (That was the case with the accusations that Democratic senator Al Franken of Minnesota had groped women, accusations that came with a photograph and that he never really denied.) In the case of Kavanaugh, liberals felt no conflict and went all in on the accusations.

Blasey Ford’s allegation came with essentially no corroboration. By her own account, she had not discussed the alleged attack — which took place sometime in the early 1980s — in any detail until 2012. Her husband and her therapist’s notes back her claim to have discussed it then, although the notes do not mention Kavanaugh by name. No person she said had attended the party at which the alleged attack took place claimed to have witnessed the attack or heard anything about it at the time; all of them would in short order swear statements that they had not witnessed any attack. This was, in the cant phrase of Democrats and many journalists, the “credible allegation” that Kavanaugh and his supporters had to disprove.

In The New Yorker, Ronan Farrow and Jane Mayer publicized a rumor that a drunken Kavanaugh, as a freshman at Yale, had thrust his penis in the face of another student, Debbie Ramirez. No­body could corroborate Kavanaugh’s presence at the party, however, let alone back the allegation. Farrow and Mayer noted that Ramirez herself in the days before she made the allegation was not sure that Kavanaugh was the offender.

Several Democratic senators, including Senate Judiciary Committee members Richard Blumenthal of Connecticut and Chris Coons of Delaware, announced that they “believed” Ford. Blumenthal said he believes survivors (and, implicitly, in question-begging). Senator Mazie Hirono of Hawaii, another Democrat on the committee, first said that men should “shut up and step up.” Then she argued, in two interviews, that in evaluating the claim of sexual assault Kavanaugh’s conservative views about the law should count against him. Coons and Blumenthal subsequently were asked about Hirono’s remarks and agreed that the burden was on him to disprove the allegations.

The main argument that the burden of proof should be on Kavanaugh, other than Hirono’s, was that Kavanaugh was not being tried criminally but merely evaluated for a job. Journalists including Benjamin Wittes and John Harwood attempted to draw a parallel between Kavanaugh and Garland: The latter didn’t even get a confirmation hearing, so why did Kavanaugh deserve any “due process” better than that?

These arguments trivialize the very charge being used against the judge. Being falsely considered a sexual assaulter, and having the Senate lend credence to that false characterization, is a grave injustice precisely because sexual assault is so evil. It is not necessary to believe Kavanaugh entitled to confirmation to believe him entitled to fairness in considering allegations of grave misconduct against him.

And it is not as though there was a close question, at the time these arguments were made, about whether Kavanaugh was guilty of the charges beyond a reasonable doubt. He was not guilty even by the standard of the preponderance of evidence. All we had was say-sos from decades later, one of them extremely weak.

Proving such a vague allegation false is of course nearly impossible. But just in case Kavanaugh succeeded, his critics were quick to place limits on his ability to try. Washington Post columnist Jennifer Rubin, for example, castigated Kavanaugh for calling the accusations against him false, reasoning that he was implying that his accusers were either “liars” or “nuts.” Democratic operative Brian Fallon said that Kavanaugh was following the Clarence Thomas playbook of “deny, deny, deny.” Denial of an accusation is, thus, somehow evidence of its truth. (Fallon was among those — liberal writer Frank Rich was another — who decided that these uncorroborated charges of long-ago sexual misconduct were reasons to speculate that Kavanaugh, as an adult, coaches his daughter’s basketball team out of sexual interest in the players.)

Republican senators were warned, for example by CNN political analyst Chris Cillizza, not to question Ford too aggressively lest they be considered insensitive to victims of sexual assault. This was the same offense that senators had allegedly committed against Anita Hill back in the day. In 1991 most Americans sided with Thomas over Hill, in part because her story shifted and two FBI agents called her explanation for the discrepancies dishonest. Kavanaugh’s foes certainly didn’t want a repetition of that failed attempt to stop a conservative nominee.

In a front-page sub-headline, the New York Times labeled the controversy over the Blasey Ford accusation “the apex of a struggle over women’s status.” Those who doubt her story because the evidence for it is so thin are thus relegating women to second-class status. What else could the Times mean?

For several days, the main demand of Kavanaugh’s accusers was that the FBI investigate the Ford allegations just as it had investigated Hill’s claims. Never mind that the FBI back then mainly took statements, and we already had sworn statements from every alleged witness except Blasey Ford; never mind that liberals had never accepted the FBI’s findings in the Hill–Thomas controversy anyway; and never mind that they had already decided that exculpatory evidence for Kavanaugh would not count and Blasey Ford should be believed.

Conservatives, meanwhile, were highly skeptical of the charges against Kavanaugh. Partisanship pulled conservatives in the opposite direction from liberals on the question of whom to believe. The conservative reaction to the accusations was also colored by the desperate attacks liberals had already made against Kavanaugh.

But Republicans made serious errors of their own. Trump, after initially holding his fire, said that if the assault had really happened Blasey Ford would have reported it at the time. The passage of time has made it harder to ascertain the truth — statutes of limitation exist for a reason — but many women have not reported attacks promptly because of fear, a misplaced sense of shame, a feeling of futility, and so on. Kavanaugh’s foes found it easier to knock down Trump’s claim than to defend their case against the judge.

Republican congressman Kevin Cramer, a Senate candidate from North Dakota, was among those who said that even if Blasey Ford was telling the truth about what happened in high school it would not matter. Leaving aside the seriousness of sexual assault, Cramer’s dismissiveness ignores the categorical nature of Kavanaugh’s denial. The judge isn’t saying that he did it but he is a much different person now, and he isn’t saying that Blasey Ford misinterpreted what happened between them. He is saying that he knows he never attended the party she describes. If he is lying about that, he is, as an adult, right now, wronging her.

On Twitter, Ed Whelan, a friend of Kavanaugh and a longtime contributor to NR, recklessly outlined a theory that someone else may have attacked Blasey Ford all those years ago — and even named the man he had in mind. Nearly all of Kavanaugh’s defenders recoiled from this conduct, and Whelan himself apologized within hours and deleted the tweets.

We are left weighing the information we have. It is impossible to say with certainty that Kavanaugh did nothing to Blasey Ford or Ramirez; perhaps evidence will emerge that points toward his guilt. The first week in which the accusations dominated the national news yielded almost no such evidence. But it provided quite a lot of evidence of a political culture in the process of deranging itself.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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