Why did I ever think it would matter?

Michelle Goldberg at the Times:

The restarted F.B.I. background check that seemed, a week ago, like a merciful concession to decency has instead been a cover-up. Agents didn’t even question Blasey or Kavanaugh. It’s not clear if they interviewed any of the more than 20 corroborating witnesses named by Deborah Ramirez, who claimed a drunken, aggressive Kavanaugh thrust his genitals into her face when they were students at Yale. The New Yorker reported that witnesses who tried to contact the F.B.I.were ignored; some ended up submitting unsolicited statements to the bureau.

Which were filed in the bottom drawer of a rusty filing cabinet in a sub-basement filled with piranhas.

Ultimately, according to the White House, the F.B.I. interviewed a total of nine people in its new review. Based on what they said, Republican leaders have declared that Blasey’s story remains uncorroborated.

In other words the Republicans told the FBI not to do anything that would actually turn up evidence, and Republican leaders have declared that Blasey’s story remains uncorroborated. It remains uncorroborated because they didn’t try to corroborate it.

Conservatives will say that they’re protecting an innocent man unfairly accused, not standing up for white male impunity as a principle. They either don’t believe Blasey, or they think that, in the absence of further proof, Kavanaugh should be given the benefit of the doubt, which in this case means a lifetime appointment to the Supreme Court. They think they’re the ones who are being fair and judicious. “One side is standing on evidence,” tweeted Commentary’s Noah Rothman. “The other on intuition and sentiment.”

Evidence! What evidence? There is no “evidence” that Kavanaugh did not assault Ford, there’s only his denial that he did. There’s also no evidence (that I know of) that he did, but that doesn’t equal “it’s just intuition and sentiment.” And there’s plenty of evidence that Kavanaugh is an angry hater of all things lefty, which is not a good quality in a supreme.

No Democrat or feminist cares that Kavanaugh drank a lot in high school; personally, I couldn’t have endured high school sober. We care that he described his younger self as a chaste innocent who was, as he said in his Fox News interview, “focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship.” In fact, by multiple accounts, Kavanaugh was a mean, rowdy drunk and a sexist bully.

Which is not what we expect in a Supreme Court justice.

Of course; the fix is in. The FBI has handed over its “report” and the Republicans are saying it’s all good and that’s the end of that.

A leading Republican said Thursday that a new FBI report on Judge Brett M. Kavanaugh found “no hint of misconduct,” while Democrats called it incomplete and suggested that the White House limited the probe to protect President Trump’s Supreme Court nominee.

The headlines are full of stories on people who had relevant information who could not get the FBI to talk to them.

“There’s nothing in it that we didn’t already know,” Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said in a statement after being briefed on the FBI report by his staff. “It’s time to vote.”

There’s nothing in it that they didn’t already know because they blocked all new information.

This is so fucking sleazy.

But even before the report was formally sent to the Senate, lawyers for Ford criticized what they viewed as an incomplete FBI probe.

“An FBI supplemental background investigation that did not include an interview of Dr. Christine Blasey Ford — nor the witnesses who corroborate her testimony — cannot be called an investigation,” her legal team said in a statement. “We are profoundly disappointed that after the tremendous sacrifice she made in coming forward, those directing the FBI investigation were not interested in seeking the truth.”

Hey, they let her talk, they just didn’t listen. You can’t have everything.

On Thursday, a lawyer for Deborah Ramirez, who has accused Kavanaugh of exposing himself while in college, sent a letter to FBI Director Christopher A. Wray making the same claim.

The letter noted that Ramirez had been interviewed by the FBI for two hours Sunday in Colorado and later provided a list of 20 people who might corroborate her account of Kavanaugh’s behavior.

“Fewer than four days, later, however, the FBI apparently has concluded its investigation — without permitting its agents to investigate,” wrote Ramirez lawyer William Pittard. “We are deeply disappointed by this failure.”

So are we.

Oof, this is powerful: an open letter by 650 (and rising) law professors saying Kavanaugh does not have the temperament. It’s going to the Senate tomorrow.

Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”

We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.

Benjamin Wittes expressed a lot of sympathy for his anger (though not approval), so much sympathy that I thought it was too much. That paragraph clarifies (for me) why. Kavanaugh exhibited a lack of commitment to judicious inquiry. Sure, it’s easy to get why he was riled, but what’s not easy to get is why he apparently made no effort to control that and act like an adult judge-type person. It’s not easy to get why he thought a display of rage would be acceptable, and a good idea, and justified. It’s not easy to get why he had no discipline. All of that (and more) seems like the opposite of right-for-the-Supreme-Court.

As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.

We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.

Laurence Tribe writes in the Globe that Kavanaugh, if confirmed, will vote to kill Roe v Wade, and was tricksy about it in the hearings.

Several senators have said they would not vote to confirm Judge Brett Kavanaugh as a Supreme Court justice if they believed he would vote to undo the basic protections for women upheld in Roe v. Wade and other cases. So if his testimony and his meetings with those senators had exposed that as his almost-certain path, they would vote no.

But the only reason his public testimony and private meetings didn’t reveal such a clear inclination is that Judge Kavanaugh dissembled about his views, calling the Supreme Court’s abortion rulings “precedent on precedent,” as though that rendered them safe from his slippery keyboard. The truth is it does nothing of the kind.

It’s all of a piece, you know. Kavanaugh thinks women are lesser beings, subject to the rule of men. They should obey when men try to rape them, and they should be forced to bear children they don’t want to bear if men say they have to.

No one who has seriously studied Judge Kavanaugh’s Court of Appeals opinions — or knows anything about the publicly stated criteria used by the groups to which President Trump outsourced his selection of Supreme Court nominees — could fail to recognize that Judge Kavanaugh would, at the first opportunity, gut Roe v. Wade. His 2007 opinion in Doe Tarlow v. District of Columbia upholding compulsory elective surgeries — including abortions — performed on women marked at birth as intellectually challenged, and his 2018 opinion in Garza v. Hargan that sought to block a mature young woman’s access to a lawful abortion, leave no doubt that he would do all in his power to vindicate the expectations of those who handpicked him to satisfy Trump’s evangelical base. Indeed, just last year, in a speech to the American Enterprise Institute, Kavanaugh called Roe an example of “freewheeling judicial creation of unenumerated rights.”

Easy for him – it’s not a right he has ever needed or ever will need, so it’s just a wild and crazy judicial creation.

Benjamin Wittes wrestles with the Kavanaugh issue.

I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so.

He advised Kavanaugh (also at The Atlantic) to withdraw unless he could dispute Ford’s account without leaving a scorched earth behind.

Kavanaugh, needless to say, did not take my advice. He stayed in, and he delivered on Thursday, by way of defense, a howl of rage. He went on the attack not against Ford—for that we can be grateful—but against Democrats on the Senate Judiciary Committee and beyond. His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.

Consider the judicial function as described by Kavanaugh himself at his first hearing. That Brett Kavanaugh described a “good judge [as] an umpire—a neutral and impartial arbiter who favors no litigant or policy.” That Brett Kavanaugh reminded us that “the Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

That Kavanaugh did not show up last Thursday.

After rightly criticizing “the behavior of several of the Democratic members of this committee at [his] hearing a few weeks ago [as] an embarrassment,” this Brett Kavanaugh veered off into full-throated conspiracy in a fashion that made entirely clear that he knew which room he caucused in:

When I did at least okay enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.

When it was needed, this allegation was unleashed and publicly deployed over Dr. Ford’s wishes. And then—and then as no doubt was expected, if not planned—came a long series of false last-minute smears designed to scare me and drive me out of the process before any hearing occurred.

He went on: “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.”

I still wonder why he did that, and all the more so after reading the bit from the first hearing. Did he simply lose his temper? Lose it so thoroughly that it remained lost while he wrote that statement? And while he delivered it? (There again – if so, that itself hints at a temperament not ideal for the Supreme Court.)

The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for theWashington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional. The allegations against him shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

I think that’s the part that interests me the most. I’ve been trying to imagine a Kavanaugh who was admired by people like Wittes and I couldn’t do it – because the one who shouted and blubbed at that hearing is the only one I’ve seen.

Sheryl Gay Stolberg in the Times yesterday:

Democratic efforts to highlight sexual assault charges that are more than 30 years old have been dismissed by supporters of Judge Brett M. Kavanaugh as the dredgings of ancient history. But the judge’s response to those accusations has raised new issues that go to the core of who President Trump’s Supreme Court nominee is right now: his truthfulness, his partisanship and his temperament.

And, in my view, his ability to reason. Sure, we all get that he’s livid because the allegations are about him and not someone else. It’s human to take things personally; it’s human to go ballistic when it’s you and look on with calm detachment when it’s not you. It’s human, but it’s not all that Supreme Court-suitable. That job demands a lot of people; that goes with the “Supreme” part. The Court’s decisions matter, so you want the people making them to be more than ordinarily endowed with qualities that suit the job.

I suspect that if Kavanaugh learned of a guy who was said by many friends to have been a belligerent drunk as a young man that he would not find it a particularly outrageous claim. It seems to me that someone with an appropriately judicial temperament would be able to take a wide view and realize that most people just aren’t going to assume that he Brett Kavanaugh can’t possibly have been a belligerent drunk as a young man, because why would we? And then he would (you’d think) realize that pitching a belligerent fit would not be the best way to convince us otherwise; more like the opposite.

In short, his ego seems to mess with his ability to be rational. Not good in a justice.

For Democrats determined to derail Judge Kavanaugh, his performance last week before the Senate Judiciary Committee — his dissembling about his teenage years; his playing down drinking in high school and college; his raw, angry emotions; and his broadsides against Democratic questioners — is proving to be a new avenue of attack, if the accusations of sexual assault are not enough to swing the votes of three key Republicans and two undecided Democrats.

That’s the wrong way of putting it. That sounds as if it’s just a pretext, but his performance was a genuine horror. People aren’t pretending to be horrified because it’s a way to derail him; we really are horrified. The narcissism and entitlement make me feel quite sick.

Judge Kavanaugh came up in Washington through partisan politics; he worked on the investigation that led to Mr. Clinton’s impeachment, and later he worked for President George W. Bush. At his first Supreme Court confirmation hearing, last month, he portrayed himself as a neutral arbiter of the law who is above politics, telling the Judiciary Committee that the Supreme Court “must never be viewed as a partisan institution.”

But last week he took the gloves off, ripping into Democrats for what he called “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons.” Senator Mazie K. Hirono, Democrat of Hawaii and a member of the Judiciary Committee, seized on those comments on Monday as she laced into Judge Kavanaugh in a speech on the Senate floor.

“We all saw something about Judge Kavanaugh’s temperament and character that day that should disqualify him from serving on the Supreme Court of the United States,” Ms. Hirono said. “He was angry. He was belligerent. He was partisan. He went on the attack against senators questioning him. These are not qualities we look for in a Supreme Court justice, or a judge for that matter.”

But Senator Charles E. Grassley, Republican of Iowa and the Judiciary Committee chairman, said Judge Kavanaugh could be excused for showing passion. Mr. Grassley said he was reminded of the 1991 testimony of Clarence Thomas, who told the committee that the hearing into sexual harassment allegations from Anita F. Hill amounted to a “high-tech lynching.”

Yes, and that was crap too.

Laurence Tribe makes an interesting point.

https://twitter.com/tribelaw/status/1047152614587154432

I hadn’t really thought about it in that light. He created a visible conflict of interest for himself with all that raging at “the left” and Democrats.

Another indication that Kavanaugh may have tried to stifle claims about his behavior:

In the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.

Kerry Berchem, who was at Yale with both Kavanaugh and his accuser, Deborah Ramirez, has tried to get those messages to the FBI for its newly reopened investigation into the matter but says she has yet to be contacted by the bureau.

The texts between Berchem and Karen Yarasavage, both friends of Kavanaugh, suggest that the nominee was personally talking with former classmates about Ramirez’s story in advance of the New Yorker article that made her allegation public. In one message, Yarasavage said Kavanaugh asked her to go on the record in his defense. Two other messages show communication between Kavanaugh’s team and former classmates in advance of the story.

And then there’s the fact that Kavanaugh lied about this chatting in a committee interview.

Berchem’s texts with Yarasavage shed light on Kavanaugh’s personal contact with friends, including that he obtained a copy of a photograph of a small group of friends from Yale at a 1997 wedding in order to show himself smiling alongside Ramirez 10 years after they graduated. Both were in the wedding party: Kavanaugh was a groomsman and Ramirez a bridesmaid at the wedding.

On Sept, 22nd, Yarasavage texted Berchem that she had shared the photo with “Brett’s team.”

But when Kavanaugh was asked about the wedding during a committee interview on Sept. 25th, he said he was “probably” at a wedding with Ramirez. Asked if he interacted with her at the wedding, Kavanaugh replied, “I am sure I saw her because it wasn’t a huge wedding,” but added that he “doesn’t have a specific recollection.” Lying to Congress is a felony whether testimony is taken under oath or not.

And that is a lie, you see, because he obtained the copy of the photo and sent it to friends in order to show himself smiling alongside Ramirez 10 years after they graduated. He did that, so he can’t have been uncertain about being at that wedding and he does have a specific recollection.

In a series of texts before the publication of the New Yorker story, Yarasavage wrote that she had been in contact with “Brett’s guy,” and also with “Brett,” who wanted her to go on the record to refute Ramirez. According to Berchem, Yarasavage also told her friend that she turned over a copy of the wedding party photo to Kavanaugh, writing in a text: “I had to send it to Brett’s team too.”

Bob Bauer, former White House counsel for President Barack Obama, said: “It would be surprising, and it would certainly be highly imprudent, if at any point Judge Kavanaugh directly contacted an individual believed to have information about allegations like this. A nominee would normally have been counseled to leave to his legal and nominations team the job of following up on any questions arising from press reports or otherwise, and doing so appropriately.”

Can you say “witness tampering”?

Further, the texts show Kavanaugh may need to be questioned about how far back he anticipated that Ramirez would air allegations against him. Berchem says in her memo that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez.

Kavanaugh told the Senate Judiciary Committee under oath that the first time he heard of Ramirez’s allegation was in the Sept. 23 article in The New Yorker.

Kavanaugh was asked by Sen. Orrin Hatch, R-Utah, when he first heard of Ramirez’s allegations. Kavanaugh answered: “In the New Yorker story.”

Lying under oath? Lying to Congress?

One of Kavanaugh’s lies that I find peculiarly exasperating, especially from a lawyer:

BRETT KAVANAUGH: Dr. Ford’s allegation is not merely uncorroborated. It is refuted by the very people she says were there, including by a longtime friend of hers – refuted.

But that’s bullshit and any lawyer would know that.

Most simply and obviously it’s bullshit because the people he’s talking about didn’t even say that, they said only what is reasonable: that they don’t remember it. How would they remember it? They weren’t there, remember? They were in the house but they were not in the room. They were downstairs in the living room, while the assault Ford describes happened upstairs in a bedroom with the door closed. Ford tried to scream but Kavanaugh stifled her mouth so hard she had trouble breathing and was afraid she would die. The music in the bedroom was turned up. When she escaped Ford locked herself in the bathroom until Kavanaugh and Judge careened, laughing, back downstairs, and then she left the house. She didn’t pause to tell everyone present what had just happened; she didn’t tell anyone. So the people there were not in a position to remember the assault that they never knew about in the first place.

Almost as obvious is the fact that saying you don’t remember a thing is not the same as refuting that thing. Not at all, and it’s a crucial distinction, and no lawyer could possibly not know that. No rational adult human should be unaware of that.

Less obvious is that it would be hard for anyone involved to refute Ford’s allegation in any case. Dispute, yes, reject, yes, but refute – that’s a higher burden. It’s hard for her to establish it, because it was so long ago and because she’s unsure about date and place, and it’s hard to refute for the same and related reasons. It would need an exact time and place and irrefutable evidence that Kavanaugh was somewhere else at that time.

And he’s a lawyer. He knows it’s bullshit to say her friends refuted her allegations because they said they don’t remember – but he also knows people are sloppy about these distinctions and he can probably get away with it. The truth is that uncorroborated is what it is, and refuted is not.

And he’ll probably be on the Supreme Court soon.