However you may feel about former FBI Director James Comey, he said something this past week which should be determinative for U.S. senators: “small lies matter.”
“Falsus in uno, falsus in omnibus” is a legal principle that dictates jurors can rule a witness to be false in everything if he says one thing that is not true.
Judge Brett Kavanaugh has mislead the Senate and has told lies, both big and small, in each of his confirmation hearings over the years for the court of appeals and the Supreme Court. These lies are disqualifying in and of themselves. There should be no doubt after Thursday’s disastrous performance that Judge Kavanaugh is unfit to serve on the U.S. Supreme Court, and possibly even remain on the Court of Appeals for the District of Columbia.
Craig Calcaterra, a former trial attorney and a writer for NBC Sports lays out the case against Judge Kavanaugh. The Lies of Brett Kavanaugh:
As an attorney with 11 years of trial experience, I found Christine Ford’s testimony about her alleged attempted rape by Brett Kavanaugh to be convincing and compelling. Any lawyer with even half that experience would, if they were not being nakedly partisan, agree.
Contrary to what random people on the Internet will tell you, this is not a matter of everyone’s opinion being of fair and equal weight. Experienced legal practitioners know that there are basic criteria for what makes a witness believable. Ford met virtually all of them. If a lawyer tells you otherwise, they are lying for partisan reasons.
I’m less interested this morning in her credibility, however, and more interested in the credibility of Brett Kavanaugh. Based on yesterday’s hearing that, likewise, should be pretty uncontroversial. He’s a liar. He lied repeatedly about things big and small, both yesterday and while under oath several years ago. To wit:
- During his 2004 confirmation hearings for a seat on the D.C. Circuit, Kavanaugh was asked about his role as a White House staffer in the effort to get judge William Pryor confirmed for a different appeals court seat. He lied about that;
- He lied about his involvement in and knowledge of the “Memogate” scandal of 2001-2003 in which two Republican staffers gained unauthorized access to the private computer files of six Democratic senators regarding judicial nominees;
- He almost certainly lied about his knowledge of the bad acts of his former boss and mentor, the disgraced judge Alex Kozinski, whose sexual harassment and the distribution of sexually-explicit material to his friends and employees was “legendary” among those who knew him or worked for him;
- During yesterday’s hearing he testified that he did not watch Christine Ford’s testimony. That was a lie.
- He clearly lied about the meaning of the “Renate Alumni” reference in his high school yearbook, which was an act of crude slut-shaming he now laughably contends was benign;
- He likewise lied about crude slang also included in his high school yearbook, trying to make sexual innuendo that was more than questionable at the time and simply unacceptable in polite company now into something it clearly was not;
- He lied that a reference to throwing up during notoriously booze-filled high school trips to the beach was about eating spicy food when it was clearly about binge-drinking;
- He lied multiple times when he claimed that witnesses “refuted” Christine Ford’s stories. One of those witnesses, in fact, says she believes Ford’s allegations against Kavanaugh. He mischaracterized her testimony — overstating it in misleading fashion — in a way that, were this an actual trial, could quite possibly lead to perjury charges;
- He likewise lied when he claimed his high school friend Mark Judge offered an “affidavit under threat of perjury” to support his side of the story. Judge’s statement was an unsworn one in a letter signed by his lawyer, consisting of no testimonial weight whatsoever. Judge, as I noted yesterday, has gone into hiding and Republicans refused to call him as a witness;
- Multiple senators questioned Kavanaugh about his drinking habits, both as a teenager and in the present, prompting awkward and telling exchanges, silences, dodges and deflections. It is plain to anyone with any familiarity with drinking and drinkers that he was lying about his history and experience with alcohol. [See, video Kavanaugh’s college friends say he lied under oath about drinking.]
Some of these matters may seem, in isolation, to be trivial. In context, however, they are anything but. The sort of person Brett Kavanaugh was as a high school student has direct bearing on the very serious and heinous act of which he is being accused and his lies about such matters — his drinking, his attitude toward and treatment of women — have a direct bearing on his credibility. That he would blatantly lie about such matters is damning and utterly destroys the credibility of his denials. While there is not enough evidence to bring criminal sexual assault charges against Kavanaugh, there is plenty of reason to believe he lied repeatedly in an effort to get out from under the accusations, suggesting that he did, in fact, do what Christine Ford said he did.
Even short of that, however, his lies are disqualifying in and of themselves. He’s a lawyer. He’s a judge. He’s poised to become one of the nine most powerful jurists in the nation. A single lie about even a trivial matter under oath would place any attorney’s license in jeopardy and say damning things about his credibility and ethics as an attorney. Multiple lies from a man who wishes to serve on the Supreme Court are inexcusable and would, at any other time in out nation’s history, ensure the failure of his nomination.
Yet Kavanaugh will likely be confirmed. He will be confirmed because Republicans do not care that he lied. They do not care about anything other than a political victory and control of the Supreme Court and they will countenance perjury and, it seems very likely, attempted rape, in order to get it.
I defy any person — especially any lawyer — to make a case for Brett Kavanaugh’s credibility and fitness to be a Supreme Court justice in light of his lies and, yes, his perjury. I defy them to do it without reference to broad political talking points, ends-justify-the-means rationalizations and tu quoque reasoning. I do not think it can be done. At least not if one is being intellectually honest. Even the Republicans with whom I engage on social media and who, normally, will make an effort to argue that white is black until the position is no longer tenable are not even making the effort, likely because they know they cannot do so.
Philip Bump at the Washington Post lays out Here’s where Kavanaugh’s sworn testimony was misleading or wrong.
Mike McIntire, Linda Qiu, Steve Eder and Kate Kelly of the New York Times lay out At Times, Kavanaugh’s Defense Misleads or Veers Off Point.
UPDATE: A Boston Globe editorial includes a long list of false claims Judge Kavanaugh made under oath and concluded, “Unfortunately, the only way for senators to convince themselves that Kavanaugh hasn’t already been shown to be a habitual liar is to lie to themselves.”
Judge Brett Kavanaugh has mislead the Senate and has told lies, both big and small. All of this is disqualifying in and of itself.
Axios.com reports that Senator Jeff Flake still plans on voting for Judge Kavanaugh if the FBI investigation doesn’t turn up any new evidence. What, is he expecting a voluntary confession from Mark Judge and/or Brett Kavanaugh? They were both so drunk at the time, they have no recollection of the event. Christine Blasey was inconsequential to them.
This decision does not turn on whether there is evidence Brett Kavanaugh sexually assaulted Christine Blasey Ford when they were teenagers in high school.
This decision does turn on the fact that Judge Brett Kavanaugh, as a lawyer and a judge in his professional career, has mislead the Senate and has told lies, both big and small. All of this is disqualifying in and of itself. He is unfit to serve on the U.S. Supreme Court.
And this is what senators should base their decision on.
Finally, after Thursday’s disastrous performance by Judge Kavanaugh, he has demonstrated that he is entirely lacking in the judicial temperament and comportment that Americans expect from a Supreme Court Justice.
Roger Cohen of the New York Times makes the case. An Injudicious Man, Unfit for the Supreme Court:
What America saw before the Senate Judiciary Committee was an injudicious man, an angry brat veering from fury to sniveling sobs, a judge so bereft of composure and proportion that it was difficult not to squirm. Brett Kavanaugh actually got teary over keeping a calendar because that’s what his dad did. His performance was right out of Norman Rockwell with a touch of “Mad Men.”
This is what you get from the unexamined life, a product of white male privilege so unadulterated that, until a couple of weeks ago, Kavanaugh never had to ask himself what might have lurked, and may still linger, behind the football, the basketball, the lifting weights, the workouts with a great high-school quarterback, the pro-golf tournaments with Dad, the rah-rah Renate-ribbing yearbook, the Yale fraternity, and the professed sexual abstinence until “many years” after high school.
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Kavanaugh swears under oath that he never “sexually assaulted anyone.” To entertain even the possibility of it would be to dismantle the entire edifice of his holier-than-thou life. He’s the all-American jock, the model only child. For God’s sake, he contingently, and a little presumptuously, hired four female law clerks to work with him at the Supreme Court, the first (prospective) justice to have “a group of all-women law clerks.”
The words that resonate for me are the very words Kavanaugh used about his mother, Martha, the Maryland prosecutor and trial judge, whose trademark line was: “Use your common sense. What rings true? What rings false?”
For my common sense, Mr. Kavanaugh “doth protest too much, methinks.” Christine Blasey Ford rang true. I’ll take her “100 percent” over his. She felt no need to yell. Nor did she hide behind a shield of repetition. She did not succumb to pathos (“I may never be able to coach again”). She spoke with a deliberation, balance and humanity missing in the judge.
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But Kavanaugh’s bleating about due process and presumption of innocence — his rage at a supposed “national disgrace” — misses the point. He failed the job interview. Who would want this spoiled man pieced together on a foundation of repressed anger and circumscribed privilege — this man who quite plausibly was the teenage drunk near-suffocating Christine Blasey Ford as he ground his body against hers, this man who may now have perjured himself — occupying a place for life on the highest court in the land?
I began this column by describing what America saw on Thursday. But it’s not what all of America saw. Millions of Americans, including President Trump and Senator Lindsey Graham, saw something else: a despicable Democratic Party conspiracy against an innocent and upstanding middle-aged judge, the latest victim, along with his family, of gender politics, the #MeToo revolution, and an ascendant culture dictating that whatever women say must be true and whatever men say must be false.
The hearings were a Rorschach test for America’s tribes. They saw what they wanted to see. For Kavanaugh’s supporters, his rage was as good a primal scream for threatened white male privilege as may be imagined. No wonder Trump loved it.
A tribal confrontation is not conducive to the establishment of truth. That’s why the F.B.I. investigation is important. Despite Trump’s best efforts to trivialize the everyday lie, facts matter.
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It’s hard to argue that America’s tribal democracy is not dysfunctional these days, but still the United States is a democracy. Flake’s 11th-hour decision to demand a week’s delay before a full Senate vote to allow the F.B.I. investigation — a decision driven by conscience over Republican Party allegiance — is a small act of honor in a tawdry time. It can take a while for democracies to zigzag toward the truth.
Kavanaugh has revealed himself to be a man without measure, capable of frenzy, full of conspiratorial venom against Democrats. Justice would not be served by his presence on the Supreme Court.