The Complete Case for Kavanaugh

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 anyallegation, 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.”

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