Think Harder About Kavanaugh

Questioning of Brett Kavanaugh, September 27, 2018.

ho you voted for in 2016 is perhaps the strongest predictor of whether or not you believe Judge Brett Kavanaugh sexually assaulted Dr. Christine Blasey Ford. It is, in any case, a stronger predictor than whether or not you even watched their testimonies, which doesn’t appear to have changed anybody’s mind at all.

A politically convenient view should be considered dubious until proven otherwise. You should be at the height of your skepticism when your seemingly thought out view conforms so neatly to your political loyalties. The threat of confirmation bias is too high to act any other way.

Reaching, and accepting, an inconvenient conclusion is a strong signal that you are thinking honestly. I encourage you to consider the inconvenient conclusion that, as of right now, it is not possible for us to know whether Kavanaugh sexually assaulted Ford or not. And no responsible person can act as if it is.

Though we do not know, doubt does permit us to speculate on the probability of Ford’s accusations.

How Should We Evaluate Dr. Ford’s Accusations?

While the process of confirming Judge Kavanaugh is more analogous to a job interview than a criminal proceeding, it is not typical to be accused of sexual assault (erroneously or otherwise) at a job interview, especially not publicly. “Beyond a reasonable doubt” should be saved for an impeachment trial for Judge Kavanaugh from the DC Circuit Court of Appeals on grounds of perjury in the event that he is lying (yes, Federal judges can be impeached). Kavanaugh was not in any case going to receive anything resembling “due process” because virtually all the “jurors” in the Senate and the “Court of Public Opinion” had already made up their mind before opening arguments, and would never pass jury selection.

But the burden of proof cannot be placed on Kavanaugh. There is clearly more at stake for him than his mere promotion to a higher court. To label him a sexual predator, and thereby ruin his reputation, and that of his family, is not a matter of recreation. He cannot be presumed to be guilty.

Can we fairly apply a “preponderance of evidence” standard?

To say that someone committed sexual assault, but that there is insufficient evidence to convict, is to say that he probably committed sexual assault. At a minimum, you should be mostly sure before you doubt the testimony of either Ford or Kavanaugh. A “beyond a reasonable doubt” burden is not justified when applied to either Ford or Kavanaugh, instead a “preponderance of evidence” burden should be applied to both of them. If Kavanaugh probably assaulted Ford, and/or probably lied to the Senate Judiciary Committee, then he should not be given a seat on the Supreme Court, because that would be, more likely than not, putting a liar and sexual assailant on the Court to which there is no further appeal.

Congress should then proceed to investigate the matter further to see if there is sufficient evidence to impeach and convict him. To remove him from his current position, which would serve to affirm that he is almost certainly both a liar and a pervert, would seem to require a higher burden of evidence. We must also presume Kavanaugh innocent of sexual assault and perjury, as well as Ford innocent of perjury until evidence suggests otherwise.

Although this appears to be the correct burden, it is still problematic because neither Kavanaugh nor Ford have presented any substantial evidence.

Dr. Ford’s Testimony

Dr. Ford first reached out to the Washington Post and to her Congresswoman Anna Eshoo (CA-18) on July 6, four days before President Trump nominated Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. On July 20, Eshoo suggested that Ford write a letter to Senator Feinstein, who serves as the Ranking Member on the Senate Judiciary Committee. A letter dated July 30, was sent from Ford to Feinstein which describes a very drunk teenage Kavanaugh pushing her into a room, covering her mouth and trying to remove her clothes. You can, and should, read the full letter here.

The letter says this event took place in the early 1980’s, which Ford clarified in her testimony as referring to the summer of 1982. Neither the letter, nor Ford’s testimony describe an exact date (or even month) nor a street address. This naturally makes Kavanaugh’s effort to supply an alibi very difficult.

Ford’s letter says she attended a gathering with four others. She has since updated that to be four boys and another girl besides herself, at a minimum. She names her close friend Leland Keyser, Patrick Smyth (known as P.J.), and Mark Judge as being at the gathering. Her letter and testimony describe Mark Judge being in the room while Kavanaugh assaulted her.

Mark Judge, Leland Keyser, and Patrick Smyth have all separately sent letters through their attorneys to the Senate Judiciary Committee. All three say that they have no memory of this gathering. Most damaging of all for Ford is that her friend Leland Keyser writes that she “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.” This is surely the strongest testimony in support of Kavanaugh, but is not quite as devastating as Kavanaugh himself seems to believe (more on that later). Dr. Ford explained in her testimony, fairly, that she would not expect Keyser to remember the party, because nothing memorable happened to Keyser there. However, Keyser says she does not even know Kavanaugh. It should be emphasized that neither Smyth nor Keyser’s letters flatly contradict Ford; they merely say that they have no memory of this happening.

A confusing detail on Keyser is that in an interview with the Washington Post, she says that even though she has never met Kavanaugh, she still believes Ford (a fact only mentioned by a single Senator, Cory Booker of New Jersey, see 2:36:10). On what grounds Keyser believes Ford is unknown. Whether the Senate appreciates this or not, Keyser is the most interesting person in this controversy who has not yet testified to the Senate, and that includes Mark Judge, whose testimony I could probably predict verbatim.

I could certainly forgive someone for being unconvinced by Ford, and I myself remain unconvinced. There are however very good reasons to still take her account seriously.

For her to reference three living witnesses by name is extraordinarily bold for her to do if she is lying. The three also sent brief letters through their attorneys, and neither Keyser nor Smyth explicitly contradict Ford, and Keyser may even have unmentioned reasons for believing her (Judge claims that he never saw Kavanaugh act the way Ford describes, which Ford says he did, making Judge the only named witness besides Kavanaugh himself to contradict her).

Even for Ford to come forward publicly at all, despite the known, and realized, risks of doing so, is bolder still. She will not be able to live a safe life, likely for many years to come, regardless of what comes of this controversy (and regardless of how much her GoFundMe is worth…). The notion that Ford does not believe her own story is almost unthinkable. The only scenario in which I can imagine her lying is that if she was expecting her letter to remain confidential (how it lost its confidentiality is still disputed), and is now simply in too deep to go back and say it was all made up. Whereas, I have no trouble at all imagining why Kavanaugh might lie: he doesn’t want people to think he’s a creep, and he wants to be on the Supreme Court.

This does leave open the possibility that she is somehow mistaken. Perhaps she had more beers than she suggested (although the possibility that she successfully walked a considerable distance home, which has not been ruled out, reduces this chance), or perhaps time has caused her to combine and rearrange disparate memories. While my intuition tells me this is unlikely, it cannot be demonstrated either way without more information.

But, for what it might be worth, I was moved and impressed by Ford’s testimony. She notes several specific details that I would not expect from a liar. She remembers making eye contact with Mark Judge in the room and hoping he would help her, the weight of Kavanaugh on top of her, and that she was wearing a one-piece bathing suit under her clothes (she had been swimming earlier that day). She also recalls seeing Mark Judge several weeks later at the Potomac Village Safeway where he worked at the time and that he was uncomfortable when he saw her. And of course, the “uproarious laughter” of Kavanaugh and Judge. When she describes the laughter in response to a question from Senator Leahy of Vermont, I felt for a moment as if I had been there myself (this exchange begins at about 1:10:10, and is well worth watching).

She also corrects and clarifies herself in a way that more nearly resembles an honest person making a real effort to recall something that happened over thirty years ago (I see why this is problematic in itself) than a liar trying to remember what they have said. For example, during her testimony, she corrected an earlier statement that Patrick Smyth was a “bystander” to the assault, and said that “bystander” gives the impression that he was in the room, which he was not. While not hard evidence on its own, this does sound like someone who is reconstructing a real memory, which can only be done by an exceptionally talented liar, or by someone who has a real memory to reconstruct.

But for all Ford is able to remember, she cannot recall the details that could sink Kavanaugh if recalled and verified. Ford could consider a date based on the alleged assault’s relationship with summer holidays such as July 4th or Labor Day, or even a family vacation, but has not offered one. She also cannot remember how she got to the party, or how she got home afterwards, except that she was too young to drive herself.

Another concern with Ford’s account though, is that it may be unfalsifiable. If you were Mr. Kavanaugh, how would you set about proving yourself innocent? Ford has not provided a time and place that you provide an alibi for. She has not provided any physical evidence that Kavanaugh can challenge, and the witnesses she has named say they cannot remember what she is talking about. What should Kavanaugh have said? Well, I can tell what Kavanaugh should not have said.

Kavanaugh’s Testimony

The objection that Kavanaugh was too angry and mean to be appointed to the Supreme Court comes across as Monty Python-esque. I would actually be more persuaded if you said that if Kavanaugh weighs as much as a duck then he is made of wood and therefore an attempted rapist, before calling for scales (if you don’t get this reference, sorry). I cannot say how someone accused of sexual assault is supposed to react.

But while I had mixed feelings about Ford’s testimony, I was stunned by Kavanaugh’s. In fact, I think Kavanaugh’s dishonest and evasive testimony probably did more damage to his credibility than anything else has. He would have been better off not giving it at all. He may have even been better off saying that he did it all, but was young and drunk and stupid and has since matured significantly. Whether or not the second approach could have possibly worked is an interesting question that could have provoked an interesting debate on how we hold adults to account for what they did as teenagers, but it is way too late for that now. If he is lying then he is a perjurer who knowingly exposed Ford to unnecessary risks and pain.

I cannot demonstrate that Kavanaugh tried to rape Ford, but he was clearly being deceptive, and evasive, in many critical points of his testimony. Firstly, Kavanaugh abuses the word “refute” repeatedly.

During his opening remarks, the only statement that he prepared ahead of time, he claims that Ford’s claims are “refuted” by the people Ford claims were there. By my count, he says this thrice during his opening remarks (see 14:28, 22:50 and 46:40). While it is true that Mark Judge and Kavanaugh himself refute the charges, it is not true that Keyser and Smyth do also. They merely say that they have no knowledge of such a party. For Kavanaugh to claim that Keyser and Smyth refute Ford suggests that he either did not read their letters (unlikely) or he is being intentionally deceptive in order to strengthen his own account. For an experienced legal mind to speak so carelessly and sloppily in a prepared statement should make one wonder if Kavanaugh does indeed have something to hide.

Later on, during questioning, Kavanaugh continued to assert that the alleged witnesses say that this “didn’t happen”. By my count, he says this at least seven times (see 1:56:10, 1:58:40, 1:59:45, 2:09:00, 2:34:25, 2:36:00, and 2:37:35). At no point do either Keyser or Smyth say this. Mark Judge does not even go that far, but his words could be construed as implying it. Why would Kavanaugh feel the need to deceive members of the Senate about the written testimony of two key witnesses? I do not recall any Senators calling him out on this, and Senator Coons even signaled agreement with him.

On the question of an FBI investigation, asked to him repeatedly, Kavanaugh was evasive, and often refused to answer whether he would support an investigation or not. Most damning of all, he gave a complete non-answer to Rachel Mitchell when she asked him what he considered to be too many beers. It is essential that you watch this exchange, starting at 58:05. He admits to having drank too many before, but does not describe what he considers to be too many despite being asked, nor how he knew at the time he had had too many.

Kavanaugh’s Calendars

Likewise with his testimony, Kavanaugh’s calendars did nothing for him, and may have even set his defense back. You can see his calendars for yourself here. His calendars describe his whereabouts from May through August of 1982, and are by his own admission both retrospective and prospective.

In his testimony, he insists that if the gathering happened at all, then it likely happened on a weekend because they all had jobs. According to his calendars, he was out of town most weekends. However, the fact that the homeowner’s parents were not home at the time actually suggests that it may have been a weekday. This detail is also impossible to verify without more information from Ford.

Kavanaugh’s calendars certainly do not contain an entry that reads “tried to rape Christine Ford”, but that tells us nothing. For one, he clearly reserved the right to edit his calendars retrospectively, as there are at least 15 entries in which the words have been crossed out to the point where I cannot make out a single word. The small gathering has the sound of something improvised, or as a pre-gaming for a larger event (Ford describes having this impression). If Kavanaugh did not expect this gathering or see it as significant, then he would not have documented it prospectively. And if he assaulted someone, or blacked out, he would not have documented it retrospectively. He also admits that names on calendars were typically added retrospectively, meaning he could have simply not added Ford’s name.

We also see a suspicious July 1st entry that reads, “go to Timmy’s for [brew]skis w/ [Mark] Judge, Tom, PJ, Bernie, Squi”. Much has already been said about this entry elsewhere, but notice that Kavanaugh was out drinking on a weekday (July 1st was a Thursday, which makes his emphasis on weekends suspect), and that this small gathering does seem strangely familiar to what Ford described. I also encourage you to notice Mrs. Kavanaugh’s anxious body language when this matter is first brought up, at about 1:11:20, and make up your own mind about it.

Not only do these calendars do nothing for Kavanaugh, they actually open new avenues of attack against him that would not have existed otherwise.

Delay Tactics and the Incompetence of Senate Judiciary Committee Democrats

Hopefully there is now enough doubt for you to see the puzzle, and why further investigation was warranted. Although the FBI investigation is now complete, the results have not been made public, and I cannot consider what I cannot read.

The real difficulty of this dispute should be all that is necessary to refute the charge that this is merely a delay by Democrats to stall until the election. This remark is popular with Sean Hannity, Ben Shapiro, and others in the conservative commentariat.

This objection is problematic for at least four reasons. For one, any theory that relies on Democrats on the Senate Judiciary Committee acting in an intelligent and coordinated manner is stillborn. I do not see any evidence that the Democrats so much as shared notes with each other and coordinated questions. Ten Senators, questioning in five minutes intervals, should have focused on certain elements each, and left some time at the end for follow ups. Instead, it seems as if they jealously guarded their questions to avoid letting other members steal their glory. Silly questions about his yearbook were repeated, but no time was found to explain why Kavanaugh was treating written testimony disingenuously. The sheer stupidity and amateurism of Senate Democrats was as shocking as Kavanaugh’s ridiculous testimony.

Secondly, Republicans are projected by most polls and betting markets to keep control of the Senate, and even if they do not, they still would have until January (NOT NOVEMBER) when new Senators are sworn in to smash the confirmation through over any objection.

Thirdly, since the Republican majority schedules these hearings, and sets the agenda, they themselves appear to believe that a delay suits their interests also. The pearl clutching of Senator Lindsey Graham, despite the fact that Republicans could have refused to have any hearings at all, shows that neither party is too dignified for political theatrics.

And fourthly, Neil Gorsuch (who?) was confirmed without any accusations of sexual assault. Gorsuch even went to the same high school as Kavanaugh (Kavanaugh graduated from Georgetown Prep in 1983, Ford in 1984, and Gorsuch in 1985). Could the reason that Gorsuch was not accused of sexual assault, but Kavanaugh was, be that Kavanaugh sexually assaulted someone, but Gorsuch did not? Yeah, that could be the reason.

Will Trump Nominate Someone Else? And Should He?

Trump is too committed to Kavanaugh to turn back, and this issue has become very intense and emotional for many of his supporters.

Perhaps the worst Kavanaugh take on the entire internet

But there are more sinister reasons why Trump is likely to stick with Kavanaugh. For one, the evidence that Trump is a sexual predator is far greater and far more recent than that against Kavanaugh. For example, no recording of Kavanaugh confessing to and bragging about assaulting women exists. For Trump to even say things look bad for Kavanaugh is to say, well, that Trump should never have been allowed to be President.

The second reason is that Kavanaugh’s clear hatred of left-wing organizations and media will make him a uniquely valuable legal tool for Republicans for decades to come. Will Kavanaugh recuse himself if the ACLU, which called for his nomination to be revoked, brings a case before the Supreme Court? No, don’t be silly. Will he give a fair hearing to left-wing groups if they run into trouble with the law? I would not count on it. There are many other conservative judges that will not make it their life’s mission to retaliate against the American left, but that is what makes them unqualified in the eyes of Trump.

It remains unclear if Kavanaugh did what he was accused of. He has however shown that he is dishonest, and too paranoid of conspiracies to be confirmed, at least for the time being. Trump should rescind his nomination, and pick someone else, even though the evidence is inconclusive. I make this suggestion knowing full well he would never take it.

This is not an opportunity to settle old scores about Anita Hill or the election or Merrick Garland. This is a very challenging puzzle that may never be solved, and is deadly serious. All I ask is that you treat it as such, and see that I have too.

Trying my best since 1996.

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