I have come to three conclusions after the hearings on Thursday, during which Dr. Christine Blasey Ford and Supreme Court nominee Brett Kavanaugh testified about her accusation that he sexually assaulted her. The first conclusion is that Kavanaugh loves his children. Another is that Kavanaugh loves his father. A third is that he is a liar. It gives me no pleasure to say that about another person, whatever their political beliefs. But it’s impossible to draw any other conclusion.
There is ample evidence that Kavanaugh had, even before this week’s testimony, lied under oath to Congress on a number of matters relating to his duties in the Bush White House. That record of lying matters when weighing whether he is telling the truth about Dr. Ford’s accusations, and so does the fact that Kavanaugh appears to have lied during his testimony about details such as the meaning of various terms in his high school yearbook, terms that relate to his behavior during those years. He has also lied about being able to drink legally while a high school senior in Maryland, a lie he affirmed during his Senate testimony. Additionally, a Yale classmate named Lynne Brookes, who identifies as Republican, told CNN that Kavanaugh was “blatantly lying” about his drinking during college:
Brookes told [CNN anchor Chris] Cuomo she and “a number” of her Yale colleagues were “extremely disappointed in Kavanaugh’s characterization of himself and the way that he evaded his excessive drinking questions.”
“There is no doubt in my mind that while at Yale he was a big partier, often drank to excess,” she said. “And there had to be a number of nights where he does not remember. In fact, I was witness to the night that he got tapped into that fraternity, and he was stumbling drunk in a ridiculous costume saying really dumb things. And I can almost guarantee that there’s no way that he remembers that night.”
[snip] “I drank to excess many nights with Brett Kavanaugh,” she said.
Liars lie. That’s what they do. They also rehearse and memorize those lies. Notice how Kavanaugh repeated certain stock phrases in various settings about Dr. Ford’s allegations. Let’s look at a couple of examples:
In his Fox News interview with Martha MacCallum, here’s what Kavanaugh offered as a response to Dr. Ford’s accusation:
I am not questioning and have not questioned that perhaps Dr. Ford at some point in her life was sexually assaulted by someone in some place.
And in his Senate testimony on Thursday:
I’m not questioning that Dr. Ford may have been sexually assaulted by some person in some place at some time.
Regarding the additional, serious accusation of sexual assault by classmate Deborah Ramirez, who accused Kavanaugh of sticking his penis in her face without her consent at a Yale party, forcing her to push that body part away, here’s the judge on Fox News:
If such as thing had a happened, it would’ve been the talk of campus.
And in front of the Senate and the nation:
if that—that had happened, that would have been the talk of campus
Separately, now let’s look at the inconsistency between something Kavanaugh said on Fox and what he said to the Senate. Let’s start with Fox:
MS. MacCALLUM: So in terms of the process now and what happens now, when you look at how all of this — where all this generated from, do you have thoughts? Is this about Roe v. Wade? Is this about people who initially right off the bat said they wanted to see you never take the spot on the Supreme Court? Where’s all this coming from?
JUDGE KAVANAUGH: I just want a fair process where I can be heard.
MS. MacCALLUM: You don’t have any thoughts on what’s — where this is coming from?
JUDGE KAVANAUGH: I just want a fair process where I can be heard, defend my integrity, defend the integrity of my family. I’ve — I’m telling the truth.
MS. MacCALLUM: You don’t want to talk about where you think this is coming from?
JUDGE KAVANAUGH: I just want an opportunity, a fair process where I can defend my integrity.
Yet in his Senate testimony, Kavanaugh had plenty of “thoughts on what’s—where this is coming from”:
This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.
Clearly, on Monday Kavanaugh believed it would serve him best to not say anything about the motivation of those who oppose his nomination. Yet by Thursday, it appears that his calculus had changed, and he decided that he had try to appeal to the partisan feelings he hoped would sway any of the wavering Republicans he needs to vote yes. He may also have decided that such a partisan outburst would help keep on board the man who nominated him, but who might have jumped off a sinking ship rather than go down with the judge if it came to that. This inconsistency doesn’t necessarily show Kavanaugh to be a liar, but it does reveal him to be a savvy political operator.
There are other reasons why Dr. Ford is far more believable than Judge Kavanaugh, including the haunting details she cited about that night. The prosecutor Republicans brought in to poke holes in her story was unable to dent her credibility one iota.
Republicans, of course, accuse Democrats of viewing Dr. Ford’s allegations and Judge Kavanaugh’s denials through a partisan lens. Here’s the thing: At least in recent years, when credible accusations of sexual assault were raised against prominent Democrats—even when the accused was one of Mr. Popular Vote Loser’s most aggressive opponents, New York State Attorney General Eric Schneiderman, or one as popular and effective on the national scene as Sen. Al Franken—our party did not protect them. Instead, we treated them just as we do Republicans.
So, how does this nomination end? No one really knows. Let’s engage in some optimistic conjecture and hope for the best, because our democracy needs an antidote to the poison that has become our Supreme Court selection process.
Let’s hope that enough senators have enough doubts about Brett Kavanaugh’s fitness to be promoted to a lifetime seat on our country’s highest court to scuttle his nomination. At that point, I hope that Mitch McConnell and Donald Trump are either unwilling or unable to push another nominee through before the midterm elections. Then, I hope that the Democrats flip the Senate (if they do, the House will almost certainly flip as well). If those three things all occur, our country will then have a unique opportunity, one that may not come again in our lifetimes, to fundamentally reform how we put people on the Supreme Court.
The only way it could work is if both parties agreed. The agreement would presumably have to start in the U.S. Senate, and work outward from there. Yes, it would require a constitutional amendment. First, Chuck Schumer would tell Mitch McConnell that no one else will be confirmed to the Supreme Court during the current presidential term. That is necessary to rebalance the scales after what happened when President Obama nominated Merrick Garland. That is the only way to heal the wound to our democracy caused by McConnell’s obstruction.
Second, both parties would have to agree to support a constitutional amendment to implement fixed terms for each seat on the Court. There are many different ways to do this, and I’m not going to go through the merits of the various options. Here is one plan for how the changes could be implemented over time, one that seems reasonable to me because it pushes those changes out into the future (something necessary to have any chance of gaining the support of those who currently hold power), would treat both parties equally, and would prevent any future Merrick Garland scenarios.
Our country is in desperate straits, in any number of ways, and this set of reforms only addresses one of them. No one knows for sure that Democrats would go along with such a plan, even if events play out in they way described above. As for Republicans, it would be shocking if they gave up any opportunity to maximize their power.
What is certain is that the Supreme Court can’t go on like this. In recent years it has become ever more riven by partisanship—to a large degree because of the judicial activism of conservative justices. If, as it appears, the Court is essentially going to act as a super-legislature, it cannot be one whose members serve for an arbitrary length of time. As it stands now, the court’s decisions are largely predictable based on ideology, and the court’s ideological makeup is determined largely by life expectancy. That needs to change. There’s a reason why we are the only democracy that gives lifetime appointments to its highest court. The American people, according to numerous polls, also support some kind of fixed term for Supreme Court justices.
The Brett Kavanaugh hearings have, to say the very least, not been a positive thing for our democracy—not to mention the harm it has inflicted on the participants, in particular Dr. Ford, as well as the trauma it has caused for other survivors of sexual assault or violence. Maybe, just maybe, they will put us on a path that ends with a Supreme Court that all Americans, whether or not we agree with a particular decision, accept as a legitimately functioning part of our constitutional democracy.
This is a Creative Commons article. The original version of this article appeared here.