Do Not Confirm Judge Kavanaugh; But Do Not Sanction The Way He Was Treated

I was reasonably satisfied with Judge Kavanaugh’s nomination to the Supreme Court.  I thought he was a smart, fair jurist.  Although I did not agree with all of his lower court decisions, I appreciate that evaluating a judge based on whether I agree with his ultimate outcomes, as opposed to the strength and coherence of his legal reasoning, is detrimental to rule of law principles.


I have also been, and remain, somewhat unsure about whether Dr. Christine Blasey Ford was sexually assaulted 35 years ago by Judge Kavanaugh.  The fact that none of the people she remembers being at the gathering also remember the small social event, and Leland Keyser does not even know Judge Kavanaugh, seems damning.  I found her statement that she was 100% certain of his identity unfortunate and undermining to her claim, given the time that passed before she ever spoke his name to anyone about the alleged sexual assault.  I thought she exaggerated her inability to fly in a way that bespoke a gamesmanship that undermines her credibility.  I found much of what she said credible, but I do not believe the evidence, in its current state, is sufficient to arrest Judge Kavanaugh, which means probable cause, a standard lower than preponderance of the evidence and much lower than beyond a reasonable doubt, has not even been reached.

I understand why Judge Kavanaugh was so angry.  The allegations against him by Deborah Ramirez and Julie Swetnick are less reliable than Dr. Ford’s.  Ramirez does not even remember if Kavanaugh was the perpetrator, and Swetnick’s allegations are extreme and somewhat preposterous.  I could even forgive the partisan rant of Judge Kavanaugh’s opening statement, where he blamed the resistance for conspiring against him, if he acknowledged his mistake and its damage to the perception of impartiality it was.  In an insane moment, his fears of partisan smearing may have seemed true, given how even high-level politicians vowed to defeat his nomination at all costs.

I think the Renate mentions in Kavanaugh’s high school yearbook may have been innocent, perhaps just a bunch of boys who went on dates with the same girl and had an inside joke about it.  The fact that so many have been willing to make so much out of the mentions of “Renate Aluminus” so far shows how blindly irrational we have become, and how much confirmatory bias can shape our views.

However, I know what a Devil’s Triangle is.  Anyone who has friends with a lurid sense of humor, as Brett Kavanaugh surely did, knows what that means.  He claimed the mention of that term referred to a drinking game.  And while that lie is surely not material to whether Judge Kavanaugh committed sexual assault, I no longer trust him.   He has exposed himself as someone who, when he thinks he is in the right, is willing to abandon important principles of honesty.  He transgressed against the sanctity of the sworn oath to tell the truth during Senate proceedings.  I also do not believe he has never blacked out from drinking, and that fact surely is material to the allegations of sexual assault.

[Edit:  Devil’s Triangle may have been a drinking game in the 1980s (although one member of Kavanaugh’s prep school said it wasn’t.  However, since writing this blog post, other testimony that was less than honest has come out, including the fact that Kavanaugh’s grandfather went to Yale — belying his statement that he had “no connections.”  There are a sufficient number of perhaps or close-to falsehoods that my ultimate position has not significantly changed.]

Perhaps Judge Kavanaugh thinks these lies are necessary to overcome an angry mob, so worried about the future of Roe v. Wade and so emotionally distraught over their own terrible sexual assaults, or those of people they know, that they cannot examine his situation objectively.  Machiavellianism is an inappropriate philosophy for a judge – who must put principles over results, and especially over politics.  Judge Kavanaugh is not free to disregard process for an outcome that he may believe is just; the role of a judge often demands the exact opposite.  Honesty is paramount, and integrity is critical.  What if Judge Kavanaugh did commit the sexual assault, but believes he has changed and is justifying his lies because it is unfair to hold him accountable now?  I no longer believe Judge Kavanaugh deserves to be the arbiter of my constitutional rights  — as a matter of principle, not as a matter of jurisprudential results.

However, in not confirming Judge Kavanaugh, Senators need to make clear that, in the future, allegations against judicial nominees need to be treated very differently.  The anger of some over their own trauma cannot be a basis for converting someone into a symbolic scapegoat.  The facts and evidence need to be examined critically.  Not all victims are heroes, and the way we accuse others of crimes they may or may not have committed matters.  Politicking to delay or expedite confirmation hearings has no place in the quest for truth about the character and fitness of a judicial nominee, when serious allegations are involved.

The angry mob should not be the reason this nomination is defeated.  Those who never wanted Judge Kavanaugh on the bench, and will find any excuse to disqualify him, should not be the reason Judge Kavanaugh should be disqualified.  Judge Kavanaugh is the reason for his own predicament.  However, we must acknowledge that when someone works hard his whole life, studies tirelessly, and attends elite universities with a focus on the future, taking away that future based on uncorroborated allegations is sufficiently horrific that we cannot blithely dismiss the harm to Judge Kavanaugh as losing a job interview.  It is anti-intellectual to assume his education and hard work mean nothing.  It is inhuman to imagine that because he came from some privilege, he is undeserving.

I am glad the allegations about Judge Kavanaugh will be investigated by the FBI.  I think there is a non-trivial chance he did commit a crime in high school.  But even if he did not, I hope the Senators vote no on his confirmation, but that we learn that almost no one has emerged from this as an innocent party.

2 thoughts on “Do Not Confirm Judge Kavanaugh; But Do Not Sanction The Way He Was Treated”

  1. Thank you for your even-handed take. I would like to offer one small anecdote as a counterpoint. In my small friend group at an elite college, we played a drinking game called “fingerblaster.” The game came down to us through east coast prep schools, where I assume the name was chosen specifically for its sexual denotation. From this personal experience, I find it premature to label Kavanaugh’s explanation a lie. Even without it though, it seems the probability of teenage boys (anyone, really) engaging in group sex is much lower than the probability of them playing an inappropriately-named drinking game.


  2. Not nominating Kavanaugh is simple enough. Do you have any ideas for how to accomplish the second part, though? Any defeat of Kavanaugh seems like such a huge win for loose allegations that I can’t imagine this situation resulting in a rebuke of both.


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