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Why Kavanaugh Shouldn't Be Confirmed

Regardless of what the FBI finds, he’s shown himself to be unfit

Throughout the day, Kavanaugh came across as defensive, entitled, angry, and evasive.  The fact that he refused to embrace an investigation that might clear him was particularly damning. (Photo: ANDREW HARNIK/Getty Images)

Throughout the day, Kavanaugh came across as defensive, entitled, angry, and evasive.  The fact that he refused to embrace an investigation that might clear him was particularly damning. (Photo: ANDREW HARNIK/Getty Images) 

The Republicans managed to make Thursday’s hearing a he said/she said debate, and they managed to make the standard for disqualifying Kavanaugh one of proving him guilty, “beyond a reasonable doubt” exactly as they wanted to do.

And by having only two witnesses, Dr. Ford and Judge Kavanaugh, it was a forgone conclusion that burden wouldn’t be met, although certainly Dr. Ford came across as far more credible than Judge Kavanaugh.

But as many have pointed out, the Senate’s advice and consent role is more like a job interview than a criminal trial.

The Democrats – and America -- won a small victory when Senator Flake, a Republican, made an FBI investigation a requirement for his support of Kavanaugh. But the White House’s limitations on the FBI’s investigation is likely to result in a they-said/he said conclusion.

Regardless of what the FBI does or does not discover, Kavanaugh must still pass the job interview, and on Thursday, he flunked it.  Badly. In fact, he flunked it a decade ago.

But the fact is, regardless of what the FBI does or does not discover, Kavanaugh must still pass the job interview, and on Thursday, he flunked it.  Badly. In fact, he flunked it a decade ago.

Senator Hirono framed what should have been the clear statement of the Committee’s purpose in her questioning, when she said, “There’s certainly no entitlement for you to be confirmed to the Supreme Court.” And when she went on to ask, “Are the credibility, character and candor of a nominee, things for us consider in your job interview?” Temperament is no doubt a part of character, but it could have been highlighted. 

Throughout the day, Kavanaugh came across as defensive, entitled, angry, and evasive. The fact that he refused to embrace an investigation that might clear him was particularly damning. This, despite his repeated assertions that his name and reputation had been ruined and his family harmed. One would think an innocent man facing such circumstances would demand further investigations and the opportunity to clear him that they would offer.  The clear inference is that Kavanaugh doesn’t believe an investigation would clear him – in fact, the anger and desperation he demonstrated suggested that he saw this hearing as nothing more than a threat to secure his coveted prize.

Those responses alone suggest there is legitimate cause for disqualifying Kavanaugh from consideration.  Again, no one is entitled to be a Supreme Court Justice, and no one who values the laws and constitutional principles that are the underpinnings of this country’s system of government could possibly object to further study of a candidate’s eligibility in the face of such allegations. That is the very minimum that the Senate’s advice and consent role requires.  So Kavanaugh’s ill-tempered and petulant attempts to dodge questions, suggests he lacks the character and temperament required for the job, and worse, that he has no respect for the laws, principles and processes underpinning our system of government. His entire demeanor reeks of an upper class, white male privilege, angry at being frustrated in what he feels should be his manifest destiny.

In fact, Judge Kavanaugh has a history of deception and outright lying that goes back some time. For example, he intentionally mislead the Senate in 2004 and 2006 while under oath when he claimed to he had not received any of the documents stolen from the Democratic members of the Judiciary Committee, when his own emails show he did.  He also claimed that he had no knowledge about warrantless wiretapping – again under oath – when his own emails show he was involved in the program.  Finally, his testimony claimed he had no knowledge of detention and torture of enemy combatants, when there are at least three cases where records show conclusively that he was involved and had knowledge.

There’s been a debate about whether these lies rise to the level of perjury, but here again, this isn’t the standard by which we should judge his fitness to be a Supreme Court Justice.  The mere fact that he is not a criminal does not qualify him to sit on the highest court in the land. And the fact that he attempted to dissemble and deceive, under oath, should have disqualified him.

But the biggest lie of all, may be his carefully crafted life story in which he portrays himself as a studious, religious young man and boy, absorbed in academics, sports and volunteering for good causes, too busy to be engaging in sex, drinking or partying. 

Kavanaugh’s choir boy performance fell apart when his friends came forward to refute it; when his calendar revealed he was interested in parties, drinking “skies” and a 100 kegs quest; and when his yearbook revealed him to be an entitled rich kid who thought rules and propriety were for others.    

 On the whole, I preferred the honesty of George Bush who said, “When I was young and stupid, I was young and stupid,” or Barack Obama who openly admitted to doing drugs in his youth.   

The Democrats, in allowing the sexual allegations to be the focus of their objections, and in failing to drive home the fact that this was not a criminal trial with a heavy burden of proof, but rather a broader investigation of his fitness to serve on the nation’s highest court, have helped the Republicans to bypass the issue of character, candor and honesty.

It is quite possible the FBI investigation will not result in any conclusive findings.  With only four witnesses being interviewed – one a man who was Kavanaugh’s best friend and possible accomplice in a crime he’s accused of -- that’s a likely outcome.

The Republicans will then say the investigation exonerated Kavanaugh and move swiftly to approve him. The Democrats, in allowing the sexual allegations to be the focus of their objections, and in failing to drive home the fact that this was not a criminal trial with a heavy burden of proof, but rather a broader investigation of his fitness to serve on the nation’s highest court, have helped the Republicans to bypass the issue of character, candor and honesty.

The fact is, Kavanaugh should never have gotten this far, and by failing to confront his past lies and allowing the debate to be framed in a “guilty vs not guilty” context, Democrats may have failed to derail what is a monstrous threat to an essential institution.

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John Atcheson

John Atcheson

screen_shot_2017-07-26_at_9.09.47_pm.pngJohn Atcheson is author of the novel, A Being Darkly Wise, and he has just completed a book on the 2016 elections titled, WTF, America? How the US Went Off the Rails and How to Get It Back On Track, available from Amazon. Follow him on Twitter @john_atcheson

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