Both Republicans and Democrats deserve credit for insisting on an FBI investigation into allegation s of sexual assault by Supreme Court nominee Brett Kavanaugh. That FBI investigation may not fully resolve these serious allegations, particularly in light of reported limits on the investigation and the requirement that it be completed in one week. But as that investigation proceeds, the Senate and the American people should consider what last week’s testimony tells us about Kavanaugh’s job interview for a lifetime seat on the Supreme Court. In fact, the testimony reinforces the key reasons that Kavanaugh should not be confirmed: Kavanaugh has a political agenda, and lacks the open mind, honesty and credibility to be promoted to a seat on our nation’s highest court.
Even before last week’s hearings, Kavanaugh’s record made clear that instead of an open mind, he has a political agenda as he reviews important cases, favoring right-wing policy positions and the interests of corporations over workers, consumers, civil rights, civil liberties, and the environment. Kavanaugh, who has previously described himself as a Republican, has a career of partisan advocacy on matters ranging from the Starr report to the 2000 Florida recount for Bush to his work on legislative and other issues while in the Bush White House for more than five years. This itself is not necessarily disqualifying. But what is more disturbing is that in important cases that concern hotly contested policy and political issues, Kavanaugh consistently favors ultra-conservative Republican positions that reflect his ultra-conservative Republican political background, often disagreeing with other Republican appointees to his court.
This has proven true in a broad range of areas, including reproductive rights and abortion, climate change and the environment, gun safety, net neutrality, the Affordable Care Act, money in politics, efforts to help consumers and rein in big banks, disability and civil rights, presidential power, and claims of religious exemptions from providing legally required contraceptive coverage to women. In all of these, Kavanaugh has consistently voted in accord with ultra-conservative policy and political positions, even when other conservative Republican judges on the D.C. Circuit have not. As an independent report on Kavanaugh’s judicial record concluded, he is “an uncommonly partisan judge, even when compared with other federal appeals court judges.”
If there was any question remaining as to Kavanaugh’s support of partisan, right-wing views, he answered it in his opening statement last Thursday. He angrily claimed that the sexual assault allegations, including Dr. Christine Blasey Ford’s remarkable testimony, were part of a “calculated and orchestrated political hit” that was “fueled” by factors like “apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” He attacked Democratic Senators on the Committee, calling their behavior at his first hearing “an embarrassment” and accusing them of “lying in wait” to spring allegations against him. One legal commentator noted that Kavanaugh “dropped any pretense of non-partisanship” and that if he is confirmed, “there is no question whose bidding he will do on the bench.” Yale law professor Judith Resnik similarly concluded that Kavanaugh’s testimony was “partisan and not judicious,” and that his confirmation could put the Supreme Court “under a cloud of politics and scandal from which it would not recover for decades.” Kavanaugh‘s political agenda in itself already disqualifies him from serving on the Supreme Court.
But Kavanaugh’s performance on Thursday strongly reinforced that, aside from his conservative partisanship, he does not have the honesty, trustworthiness, and credibility that are needed for a lifetime seat on the Court. Kavanaugh’s testimony at previous hearings was full of misrepresentations and what many have called outright lies. As selective aspects of his record during the Bush Administration came to light, it became clear that he lied about or misrepresented a number of subjects, including his knowledge and use of documents stolen by a former Republican staff member, the degree of his involvement in several controversial Bush judicial nominations, his involvement in warrantless wiretapping and other questionable conduct by the Bush Administration, and his views on Roe v. Wade. In fact, he even misrepresented or distorted his own judicial opinions to the Senate Judiciary Committee in an effort to make his record appear more acceptable for elevation to the Supreme Court.
Kavanaugh’s misrepresentations or prevarications continued on Thursday. For example:
- Kavanaugh asserted that the three other people Dr. Blasey Ford recalled as being present at the party where the assault occurred “refuted” her claims. This is a blatant misrepresentation of their written statements, which say only that they did not recall the gathering. Even Kavanaugh’s close friend Mark Judge said that he had “no memory” of the incident.
- Kavanaugh claimed that while he drank in high school and college, he never drank to the point of not being able to control or recall his actions. Numerous high school and college classmates have squarely contradicted him, including one who said that he “definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them.”
- Kavanaugh asserted that drinking was legal for seniors aged 18 when he was in high school. As any high school senior would surely recall, however, Maryland law changed so that for anyone turning 18 when Kavanaugh did, the legal drinking age was 21.
- Kavanaugh claimed that his description of himself as a “Renate alumnius” in his high school yearbook was intended to “show affection” to a female classmate. This is disputed not only by other classmates, but also by the classmate herself who, when she learned of the description, called it“horrible” and hurtful.”
The pending FBI investigation will likely not resolve exactly what happened with respect to these serious sexual assault claims against Brett Kavanaugh. But with respect to his job interview for the Supreme Court, for which he bears the burden to prove that he should be confirmed, it is clear, as a writer for Forbes magazine has concluded, that Kavanaugh has “failed the test.” Indeed, if Senate Republicans confirm Kavanaugh in light of the “stark new evidence” that he himself has provided, “they risk causing grave reputational damage both to their party and to the Supreme Court itself.”