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Brett Kavanaugh: A Black Mark on the Supreme Court?

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Like many others, I watched the congressional hearing yesterday involving President Trump’s nominee to the Supreme Court, Brett Kavanaugh, who currently serves as a judge on the D.C. federal court of appeals.

My conclusion after watching both Kavanaugh and Christine Blasey Ford testify? Congress should either conduct a more extensive investigation into Ford’s accusation or refuse to confirm Kavanaugh’s nomination.

One of the legitimate functions of government is to provide an independent forum in which people can resolve disputes that they have been unable to resolve consensually. That’s what the judicial branch of government is all about.

In civil cases, one person is able to sue another person and have a jury or a judge decide who should prevail. After the trial is over and the trial judge has entered a judgment, the losing side has the right to appeal the decision to an appellate court. On the federal level, that means one of the various courts of appeal. Whoever loses that decision is entitled to appeal the decision to the U.S. Supreme Court.

Even at the state level, the Supreme Court can play a critically important role. If a state Supreme Court issues a ruling that involves a constitutional issue, the losing party has the right to appeal to the U.S. Supreme Court on that issue, and the Court has the power to overturn the state court’s judgment.

The same principles apply in criminal cases. A person who is convicted of a crime in federal court can appeal all the way to the Supreme Court. A person who is convicted of a crime in the state system can also appeal all the way to the U.S. Supreme Court if his conviction involves a U.S. constitutional issue.

Given the importance of the Supreme Court in America’s governmental system, it is critically important that there be as few questions as possible regarding the integrity of Supreme Court justices.

Kavanaugh’s big problem yesterday was Christine Blasey Ford, his accuser, who has accused him of sexually assaulting her 36 years ago when they were both in high school.

I was a trial lawyer for 12 years in Texas before joining the libertarian movement. During those 12 years, I saw lots of witnesses testifying in court. I don’t think I have ever watched a more credible witness in all my life than Christine Blasey Ford. She came across as honest, truthful, and genuine. It came across loud and clear that her motive for disclosing the attack on her 36 years ago had nothing to do with politics and instead everything to do with what she perceived to be her “civic duty” — i.e., ensuring that Congress understood that they were about to confirm a person who sexually assaulted her to the highest court in the land. It was also clear that she did not relish being in the public eye and was, as she stated, terrified to be testifying.

In his testimony, Kavanaugh came out blasting, literally screaming about how his life had been ruined by the confirmation process. His demeanor shocked me because it was not one that I would have expected from a judge on a federal court of appeals. Sure, it is true that an innocent person would be expected to react angrily and indignantly to a false accusation, but I got the distinct impression that Kavanaugh was more engaged in bluster than righteous anger and indignation.

When I was lawyer in my hometown of Laredo, Texas, there was a local lawyer who employed bluster as part of his trial strategy. Whenever things were going badly for him and his client in the courtroom, the lawyer would go on a tirade of interrupting adverse witnesses with a constant stream of loud objections, most of which would be overruled by the judge. It didn’t matter to the lawyer. What mattered was that he was distracting people’s attention away from the effectiveness of the witness’s testimony. Then in jury argument, the lawyer would resort to a loud, blusterous tone of voice, practically screaming, hoping that he could bluster the jury into ruling in favor of his client.

As I watched Kavanaugh testifying yesterday, I couldn’t help but think about that lawyer in Laredo, especially given Kavanaugh’s evasiveness in answering some of the panel’s questions. In fact, given the limited scope of yesterday’s hearing — which involved only Ford’s accusation — I couldn’t understand why Kavanaugh would not limit himself to addressing that accusation by forcefully denying it (which he did) instead of also going off a tirade against the confirmation process which, as nasty as it might have been, had nothing to do with Christine Blasey Ford and the accusation she was leveling against Kavanaugh. I couldn’t help but wonder if Kavanaugh’s angry tirade against the confirmation process was intended to distract attention away from the effectiveness of Ford’s testimony.

One of the most fascinating aspects of the hearings was when Kavanaugh testified that he had not watched Ford’s testimony because he had been working on his own statement. I thought: If someone is making up a story about you, wouldn’t you want to watch her testimony so that you can show why and how she is lying?

Some of the Republican panelist suggested that since it is simply a matter of “he-said, she-said,” Kavanaugh should be confirmed. They are saying that Ford failed to overcome the principle of “the presumption of innocence” that attaches to criminal prosecutions. Kavanaugh himself, along with Republican members of the committee, continually emphasized that there was no “corroborating evidence” to support Ford’s accusation.

They miss two important points. First, this isn’t a criminal proceeding. It’s a nomination process. Second, when two boys force a girl into a room and assault her, it is unlikely that there is going to be another witness in the room. The very nature of this type of crime is the lack of corroborating evidence. Who else but the people in the room know what happened? That’s when things turn on the credibility of the witnesses inside the room. And again, that’s where Kavanaugh has a big problem. Ford’s demeanor and testimony had truth written all over them.

Moreover, the fact that other people in the house don’t remember the event shouldn’t surprise anyone. Since Ford left the house without saying anything, there is no reason why anyone else in the house to have fixed the event in his memory, especially if it was one of many parties over a multi-year period of time.

What I also found fascinating was the obvious reluctance of Kavanaugh and the Republican panelists to subpoena the third person in the room, Kavanaugh’s friend Mark Judge. He’s obviously a critically important witness. He’s the other person in the room! He’s Kavanaugh’s friend! Why wouldn’t Kavanaugh want him subpoenaed to confirm his version of the events? Why wouldn’t the Republican panel members want him there to do so?

Kavanaugh continually emphasized that Judge had sent in a letter denying that the assault had taken place, under what Kavanaugh said was “penalty of felony.” I could be wrong but I seriously doubt that an unsworn letter subjects someone to a felony perjury indictment. When I was practicing law, a perjury indictment required either sworn testimony in court or a sworn affidavit. An unsworn letter didn’t count.

My father was also a lawyer. He once told me that he had carefully interviewed a witness and knew exactly what he was going to say when he called him to the witness stand. When the man took the witness stand, he proceeded to tell a completely opposite story. My father asked him to confirm that what he was saying then contradicted what he had said the day before. The man said yes and explained, “Yesterday, I wasn’t under oath. Today I am.”

The congressional panel had an absolute moral duty to subpoena Judge to testify under oath rather than rely on his unsworn letter. He should have been required to state carefully under oath his recollection of the events. He should have been subjected to cross examination by the members of the panel. The fact that Judge escaped to a beach house in Maryland, in what may have been an attempt to avoid a subpoena doesn’t look good at all.

Yesterday, the American Bar Association, which had previously recommended Kavanaugh’s appointment to the Supreme Court, issued a statement saying that the Kavanaugh appointment should be now be delayed pending further investigation.

The ABA is right. The American people deserve justices on the Supreme Court around which there is not even the remotest appearance of impropriety. Brett Kavanaugh does not meet that standard.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.


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