What The Kavanaugh Controversy is Really All About

by Roger Resler

Amid the hoopla surrounding the Brett Kavanaugh nomination to the Supreme Court, I was referred to an article by Benjamin Wittes as a reasonable and measured piece with solid arguments on why Kavanaugh should not be appointed to the Supreme Court. When compared with the repeatedly manifest left-wing hysteria that has been the norm over the last three months in response to the nomination, Wittes’ arguments certainly come across as more reasoned and measured. Nevertheless, the solidity of his “solid” arguments breaks down under scrutiny.

Wittes begins by providing two main arguments as to why, if he were a senator, he would vote against the nominee, despite his “long relationship with Kavanaugh” and his admiration for Kavanaugh’s career on the D.C. Circuit. Wittes even reveals that he’s previously defended Kavanaugh’s character–and taken heat for it.

So what caused the 180 degree turnaround? In short, Kavanaugh’s performance at the October 4th Senate Judiciary Hearing coupled with Wittes’ belief in the testimony of Christine Blasey Ford, Kavanaugh’s primary accuser. At the same time Wittes acknowledges that “it is a real possibility that Kavanaugh is telling the truth and that he has had his life turned upside down over a falsehood.”

That real possibility, long friendship and admiration weren’t enough to assuage Wittes’ shock, however, at the Judge’s non-judicial reaction to charges of attempted rape, gang-rape, drugging victims, punch spiking and even some vicious ice-throwing. Wittes may have either forgotten or ignored the fact that Christine Blasey Ford’s allegations weren’t the only ones directed at Kavanaugh over the past three weeks. Her’s were merely the least over-the-top. To fairly evaluate Kavanaugh’s response to the pressure he’s been under over the past three months, one must consider the entire picture, which goes far beyond the Ford allegations.

Take the gang-rape allegation, for example, which is simply ludicrous on its face. Who repeatedly attends (at least 9) parties where girls are systematically being drugged and gang-raped and each time fails to tell someone or report it to authorities? This bizarre claim was raised by Julie Swetnick who, as Michael Barone reports for the Washington Examiner:

“has a history of dubious legal claims, and her incredible story totally lacked corroboration, but Democrats nevertheless launched it into public debate with their blessing, and made sure it was in the official record.”

Not only was Swetnick’s claim uncorroborated, under the intense pressure of a sympathetic NBC interviewer she walked her story back to the point of absurdity.

Then there was the Deborah Ramirez claim that Kavanaugh allegedly exposed himself to her while they were students at Yale, published in the New Yorker but skipped by the New York Times (no friend of Kavanaugh or Trump) due to its lack of corroboration.  As William Cummings reported in USA Today:

“The New Yorker said it reached out to many of Ramirez and Kavanaugh’s classmates to see if anyone could corroborate her allegation.

The magazine said that two of the men Ramirez identified as being in the dorm room where the alleged incident took place, the wife of a third man she said was there, and six more classmates all signed a statement disputing Ramirez’s story.

‘We can say with confidence that if the incident Debbie alleges ever occurred, we would have seen or heard about it – and we did not,’ the statement read. ‘The behavior she describes would be completely out of character for Brett. In addition, some of us knew Debbie long after Yale, and she never described this incident until Brett’s Supreme Court nomination was pending.'”

These are merely the main allegations to come forward in the days following the Christine Blasey Ford allegations. One wonders how Wittes would react had similar uncorroborated allegations been leveled against him over a three week period and then broadcast from every media outlet in the country. But of course, we already know the left’s response to that one: Wittes is not applying for a seat on the Supreme Court. This, of course, is a cop-out leading to the ridiculous conclusion: Humans need not apply to the Supreme Court. Or the equally ridiculous notion that one is entitled to react passionately and emotionally in the face of a wave of serious allegations–many of which are clearly over-the-top–unless one is applying for a seat on the Supreme Court. Last I knew, judges are not required to check their humanity at the courthouse door. It should also be duly noted that a Senate Judiciary hearing is, in fact, not a courtroom.

Continuing, Wittes informs his readers that he had already publicly offered Kavanaugh some free advice in a previous column on how to handle the situation. Kavanaugh should withdraw from consideration unless he were able to:

“defend himself to a high degree of factual certainty without attacking Ford. He should remain a nominee, I argued, only if his defense would be sufficiently convincing that it would meet what we might term the “no asterisks” standard—that is, that it would plausibly convince even people who vociferously disagree with his jurisprudential views that he could serve credibly as a justice.”

This, of course, is a lofty goal, but I suspect Wittes may have been living in fantasy land for the last few decades. In the real world of 21st century American politics, his “no asterisks” standard just doesn’t fly, as is evident, for example, in the fact that from the beginning a bevvy of Democratic senators immediately rushed to condemn Kavanaugh and proclaim their strong opposition to his nomination. As is clearly seen in the video I just linked to, not one of them even hinted that they would approach the situation like adults, with an open mind and seriously consider Kavanaugh’s qualifications. There was not even a pretense of fairness. Keep in mind that the comments by the Democratic Senators in the video I just linked to were made on July 10th–well in advance of any public sexual misconduct allegations. Democrats had already decided to vigorously oppose Kavanaugh from the beginning and as the video reveals, their actual reasons for opposing Kavanaugh–surprise!–had everything to do with their vociferous disagreement “with his jurisprudential views.” So much for open minds and fairness. So much for civility. The Democrat’s minds were closed from the beginning. No “astericks” standard is possible in such a hostile environment, and to think so is simply naive.

But Wittes offers up this unrealistic standard nonetheless and even ratchets it up a notch. Not only must Kavanaugh’s defense not be perceived as an attack on his accuser (despite her obvious attack on him) while convincing the unconvinceable, it must also be presented in such a way as to:

“make it possible for a reasonable pro-choice woman to find it a legitimate and acceptable prospect, if not an attractive or appealing one, that he might sit on a case reconsidering Roe v. Wade.”

So here we get to the real crux of the matter. Despite all the bluster, this all boils down to preserving Roe v. Wade at any cost. The Democrats freely admit this on the NBC News video I linked to. They are fully aware that Kavanaugh’s vote has a real potential to degrade or even overturn Roe, and such a thought is pure anathema to them. They will, accordingly, oppose this nomination at any cost. This is the real reason they so adamantly opposed Kavanaugh from the beginning.

With this latest stipulation Wittes’ “no asterisks” standard moves from unreasonable to patently absurd. First of all, even throwing out all allegations of sexual misconduct, I don’t know of any truly pro-choice women (reasonable or not) who would find it “legitimate or acceptable if not “attractive or appealing” that Kavanaugh might sit on a case reconsidering Roe under any conditions unless he were to publicly state that he would always rule in favor of pro-choice ideology–and even then they would likely be suspicious. Unless Kavanaugh surrenders from the outset any ability to give the pro-life position equal consideration in such a case (which then obviously holds open the possibility that it might win should it prove more convincing), there is virtually no possibility of persuading a “reasonable pro-choice woman” (or even a mere handful of Democratic senators) that appointing Kavanaugh to the Supreme Court is a good idea. Senator Richard Blumenthal (D – Connecticut), for example, explicitly says as much in the aforementioned video (starting at 1:28).

Conversely, how many recent Democrat Supreme Court nominees could meet this standard were it equally applied? How many reasonable pro-life women (or men for that matter) would find it “a legitimate and acceptable prospect, if not an attractive or appealing one,” that Ruth Bader Ginsberg, Elena Kagan or Sonia Sotomayor might sit on a case reconsidering Roe v. Wade? The answer, of course, is none. Yet these nominees all received significant Republican support and none were accused of gross sexual misconduct at the end of their hearings in a last-ditch attempt to derail their nominations. Newsflash: abortion is a controversial issue. That Kavanaugh presumably holds reasoned opinions on the matter is not morally any different than the reasoned opinions held by the liberals on the high court. Or is it simply that holding pro-life views is in itself disqualifying?

Despite Wittes’ alleged long admiration for Kavanaugh and unlike Kavanaugh’s several hundred other friends and supporters who’ve emphatically vouched for his character, when the chips are down, he seems perfectly willing to abandon a friendship over an unrealistic, self-imposed standard. You might think that’s end of the story. But it gets worse.

Wittes goes on to chastise his one-time friend for his “unprecedentedly partisan outburst of emotion.” Ironically, while not begrudging Kavanaugh the acceptability of expressing emotion or even anger, given that he’s been through a “kind of hell that would leave any person gasping for air,” Wittes, nonetheless:

“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.”

Got it. Raw, naked and conspiratorial partisanship is acceptable when coming from Democrat senators announcing their unequivocal, coordinated opposition to a highly qualified candidate before any hearing has begun, but accurately describing those Democrat’s blatantly partisan actions in a passionate way before a Senate Judiciary Committee is enough to exclude one from consideration as a Supreme Court nominee. At least that’s the way it works in Wittes’ world.

Interestingly, despite his “friendship” and “admiration” for Kavanaugh, Wittes goes on to suggest that Ford’s testimony was more credible than Kavanaugh’s:

“On one side of the ledger, Ford is wholly credible. Yes, her story has holes. The location of the event is unclear in her memory, as is—importantly—how she got home and what happened after she left the house in question. Yet few observers seem to dispute her credibility. Not even Kavanaugh and his supporters contend that she is lying or making up the incident in question, merely that she is mistaken as to his involvement in it.”

Well mark me as one of many observers (apparently missed by Wittes) who dispute the credibility of Ford’s testimony. Wittes casually glosses over the key point that her story has holes. Indeed it does. Large, gaping holes. For starters, who legitimately forgets the location of an attempted rape where you were in fear for your life? You might not remember the exact street address, but you would almost certainly be able to narrow the location to potential addresses that could then be investigated. Unless, of course, you didn’t really want the event to be investigated at a real-world level. Ford remembers stairs, but not the house. How she got to and from the location is also problematic. Ford doesn’t remember, but she couldn’t have legally driven herself since she was–allegedly–only fifteen. Or was she really fifteen? Her therapist’s notes seem to imply otherwise. (More on this in a moment). Who drove her? The driver could be a potential witness. Or was she actually the driver, which would mean the attack did not occur when she alleges it did. (More on this in a moment). Because of these “holes” in her testimony there is no way to investigate the matter. We can’t interview her driver, there is no date or location, and in fact, as Margot Cleveland points out in USA Today, even the general location appears questionable based on inconsistencies in Ford’s testimony:

“Another significant change in the scenario came when Ford testified about the location of the party. She had originally told the Washington Post that the attack took place at a house not far from the country club. Yet, when Mitchell revealed a map of the relevant locations and reminded Ford that she had described the attack as having occurred near the country club, Ford backtracked: “I would describe [the house] as it’s somewhere between my house and the country club in that vicinity that’s shown in your picture.”  Ford added that the country club was a 20-minute drive from her home.”

Cleveland further points out that Ford’s testimony changed over time in response to evidence that would prove her allegations false:

“Investigators also spoke with former classmates of Kavanaugh, including two men who showed staffers the “party houses” near the country club during the relevant time period. And the detailed description of the home interior Ford originally provided allowed investigators to compare her story to the layout of the homes of the individuals Ford identified. But then Ford changed her description of the house’s floor plan.

Since media leaks of Ford’s charges first broke, Kavanaugh and his supporters have stressed the impossibility of proving the negative: Kavanaugh could not prove he did not attack Ford. But Kavanaugh could prove that Ford’s story could not possibly have happened by showing that none of the individuals at the supposed party lived in a house near the country club, and that none of their houses matched that described by Ford.  Kavanaugh and investigators were poised to do so when Ford changed her story.”

Moreover, Wittes acknowledges that “Ford can offer no contemporaneous corroboration of her story in the form of testimony from people who remember being present at the alleged event.” This is actually deceptively soft. It’s not merely that Ford can offer “no contemporaneous corroboration of her story;” rather, it’s that virtually all of the witnesses she actually did name deny any knowledge of the event while some of them actually dispute the allegations and suggest that such behavior is completely out of character for Kavanaugh. And, in what presumably should be her star corroborative witness, Allen Zhong reports that a close friend of Ford’s named Leland Keyser has testified under oath that she doesn’t know Brett Kavanaugh and “has no recollection of ever being at a party or gathering where he was present.”

Inexplicably, Wittes fails to consider these highly relevant facts. In addition to the holes  and lack of corroboration, even more doubt looms over Ford’s credibility when considering her extensive history of international air travel despite her stated fear of flying, and as Marc Thiessen reports, the inconsistency about the reason she allegedly wanted a second front door:

“Ford testified under oath that the reason she finally told a therapist in 2012 about the alleged assault three decades after she says it happened was because, during a renovation of her Palo Alto, Calif., home, she “insisted on a second front door,” and her husband disagreed. So, during marriage counseling, she testified, “in explaining why I wanted a second front door, I began to describe the assault in detail.” She confirmed to Sen. Dianne Feinstein, D-Calif., that the reason for the second door was “claustrophobia.” She also never said when the renovation took place, leaving the impression that it coincided with the counseling.

But RealClear Investigations uncovered real estate records and other documents that contradict Ford’s sworn testimony. Those records “reveal the door was installed years before as part of an addition, and has been used by renters and even a marriage-counseling business.” RealClear quotes an attorney familiar with the investigation who said, “It appears the real plan for the second front door was to rent out a separate room.” Additionally, building permits for Ford’s second home, in Santa Cruz, Calif. — which she applied for in July, the month that she wrote to Feinstein about the alleged attack — include a front porch and decks but not a second front door. Taken together with questions about her claims about her ability to fly to Washington to testify, about her familiarity with polygraph tests and about the therapist notes’ whereabouts, this revelation further calls into question Ford’s credibility.”

Adding to the troubling inconsistencies in Ford’s testimony is the fact that her ex-boyfriend suggests that Blasey Ford was lying about her polygraph test.

In a fascinating Twitter thread, Margot Cleveland further examines Christine Blasey Ford’s diminishing credibility in regard to the discrepancies between her testimony and her therapist’s notes:

“Look how Ford’s Safeway testimony has been reported: Judge’s book validates Ford’s timeline! BUT Ford’s attorneys refused to turn over therapist’s records which record what Ford told therapist and that was attack in mid-80s when in her late teens & 4 boys!”

A reported attack in the “mid 80s when in her late teens” by four boys does not match an alleged attack in 1982 by two boys. The timing is critical as Margo Cleveland points out in National Review:

“Fifteen does not translate into “late teens,” even under a generous reading of that phrase. Further, in her initial text to the Washington Post, Ford stated that Kavanaugh had attacked her in the mid 1980s, which would put Ford in her late teens and Kavanaugh in college.”

Ford’s response is to suggest that the therapist got it wrong. But the discrepancy raises a key question: Did the alleged incident happen in 1982 before Ford had her driver’s license or in the mid 80’s (as reported by her therapist) after she got her driver’s license? If in 1982 someone would have had to have driven her and picked her up. If after, then Ford would have driven herself which would then explain why she “can’t remember” how she got to or from the event or, for that matter, why no one has come forward to say they were the driver.

Why Wittes, President Trump or any fair-minded observer would characterize Christine Blasey Ford’s testimony as “credible” is beyond me. Sympathetic perhaps, credible not so much.

Now that Kavanaugh has been confirmed as a Justice, the fight isn’t over. Liberals are vowing to impeach him should Democrats regain control of the House and Senate. Again, the real battle here is the battle to preserve or destroy Roe v. Wade. I’ve written an entire book on why it shouldn’t be preserved so I won’t belabor that point here. Suffice it to say Roe needs to go and Democrats are keenly aware that Kavanaugh’s appointment to the Supreme Court means it may actually be in jeopardy. That’s the real reason bizarre sexual assault allegations began coming out of the woodwork after it became clear that the petulant screaming of half-crazed liberal activists during Senate confirmation hearings wasn’t going to accomplish the goal. I hope Republican’s, Libertarian’s, Independent’s and Classical Liberal’s memories hold out until November 6th.