Brett Kavanaugh became another in an increasing line of Republicans and Conservatives who blew easy layups, yet face no consequences; only rewards.  Seriously. Does it even matter anymore?


I admit, some days I think either I am viewing things from an alternate reality or everyone else is.




I know people who say this is balancing the Supreme Court with a straight face.


Let me start by confessing that I do not agree with Judge Brett Kavanaugh’s jurisprudence or ideology that is likely to influence his decisions as a jurist in the future.


Big whoop!  When the election results came in on November 8, 2016, I knew that Justices like Brett Kavanaugh were part of the deal.


While I take issue with voter suppression, gerrymandering, gaming the Electoral system, and Russian meddling, I also accept that the 2016 election was legitimate. The results are the results.


Further, while I find that Russian meddling probably did impact the outcome of the election, I also accept that it would not have had that impact had a significant number of Americans not felt that the kinds of ideas peddled and divisions fomented spoke to them. Russians trolled us. We went along with what the trolls were saying, spread it further, and expanded upon it.


So, while I have issues with the 2016 election, I cannot say the results did not reflect the desires of a significant number of the population. Those results include not just the Presidency, but the House, the Senate and countless state and local races, on which the Electoral College has no bearing.


Just as I felt the Senate Republican’s arguments for refusing to consider Merrick Garland’s nomination acted counter to, not reflected, “the will of the people”, I find it ridiculous for me to insist Kavanaugh is unqualified to be a Supreme Court Justice simply because I don’t like his ideologies and fear how he will rule.


However, I do find him unqualified.  But not because of some ideological disagreement.  And the sad thing is, he unambiguously disqualified himself.  He even seems to recognize he did so.


I find that his nomination going forward despite his own disqualification of himself to be deeply disturbing.  He is an experienced judge with all the right boxes checked. He presumably knows how to handle himself.  He made calculated choices on how to do so during this process.  And in so doing, blew what should have been an easy layup.  And yet, rather than face consequences for that, he is being rewarded.


What does that mean for us culturally or politically?  I’m not sure, but all the roads I see are dark and twisty.


Is this part of the deal now too?




Kavanaugh seems to have been Justice Anthony Kennedy’s anointed successor.


Before the election, Don McGahn created for Trump a shortlist of potential Supreme Court nominees.  Gorsuch came from that list.  Kavanaugh’s name was not originally on the list. It was not added until November of last year, as people began to again speculate about Justice Kennedy’s possible retirement before the following term.


Brett Kavanaugh clerked for Kennedy, and Kennedy looked on him highly.  However, Kennedy was hiring clerks for the next term of the Supreme Court, and going about like he was not going to retire.


But then meetings began to happen with the White House and Kennedy announced his retirement this June.  Perhaps his decision was in part motivated by fear that, if a mid-term Blue Wave did in fact happen (although even then, most thought a Senate swing was highly unlikely), it might complicate attempts to seat a replacement should Kennedy decided to retire later in Trump’s term.


Throughout this time period, it seems Kennedy had a clear choice for who that replacement should be. The guy added in November. Judge Brett Kavanaugh.


Kavanaugh is one of those folks who through accident of birth has the privilege to have all of his boxes conveniently checked for him without much effort.


He got to attend the right prep school and belong in the right social set. That and a past family member alumnus checked boxes to get him into Yale. Which checked boxes to get him clerkships with various federal judges. Which checked boxes to get him the right judgeships. Which checked boxes to get him to the right Court of Appeals. Which checked boxes to get him to the Supreme Court.


All he had to do is stay on the train until it gets into the station and not screw up in a big way, and everything would work out for him.


“Candidate passes.”  The Court Jester, with Danny Kaye, Paramount Pictures, 1955.  Start at 0:41 of the clip.


Not only is Kavanaugh the chosen one. He appears to believe he is the chosen one. His whole life has reiterated that to him. Check the right boxes, and I get this cookie. That’s all there is to it.


For all that though, Kavanaugh is far from stupid or incompetent, right? I am sure he also has put in some hard work. He is an experienced judge, attorney and political operative, who worked with Ken Starr against Bill Clinton and worked for the George W. Bush White House.


He knows how the game is played. That’s part of checking the boxes and getting the cookie. He knows how witnesses testify, the decorum of the court, and so on.


Therefore, I saw his confirmation as a layup for him. Easy-peasy.  It’s a very formal job interview.  Just act with dignity.  Give vague or qualified answers where absolutely necessary.  Assure everyone of your desire to follow the rule of law and be fair and impartial. Done. You’re in. No problem. Oh sure, the Dems will bitch and moan.  But seriously, no problem.


Easy. Yet Kavanaugh managed to screw it up repeatedly. Including unequivocally disqualifying himself. Yet, he still gets his cookie. Except it’s no cookie. It’s a for-life appointment to the most influential court of the land.


Once upon a time, there was a young man from Columbia who longed to play on the national soccer team. He did so, becoming a well-regarded player.  But he made a mistake that resulted in the Columbian team’s elimination from the World Cup tournament.  He didn’t get MVP for that. He didn’t get lauded as the great player he was despite that unfortunate mistake. Instead, someone killed him for making that mistake.


The rest of us screw up, whether innocently or through deliberate acts, and face consequences, sometimes life destroying ones.  Not Brett Kavanaugh apparently. And, particularly, not here and now.


He went before the Senate Judiciary Committee and talked about how ruined his life was. Senator Lindsey Graham went on about how the whole process of exploring one accusation had destroyed Kavanaugh’s life and was reprehensible. Yet Kavanaugh is still here. He will still be sitting on the Supreme Court. And now he is being lauded as a hero for standing up to those nasty women who demand that they be treated as human beings.




Parliament of burrowing owls in Florida. Photo by Tania Thomson.


Many others have catalogued the lies and misrepresentations made by Kavanaugh during the various Senate Judiciary Committee hearings.


This goes back to before his testimony two Thursdays ago.  Rather then repeat them all, I’ll just mention a few areas of concern.


First of all, Senators had limited access to documents relating to Kavanaugh’s relevant career activities. His times as both a jurist, and an attorney, particularly in service to a Presidential administration, should be highly relevant particularly in these charged times where you would reasonably want to assure folks you will be a fair and impartial judge no matter what your political leanings might be. Remember, most other recent nominees don’t have extensive direct political operative experience, such as working for the White House.


Wait though. You know who did?  Harriet Miers, the woman nominated by George W. Bush, who turned out to have no jurist experience and was a Bush political crony.  What happened to her? Is she sitting on the Supreme Court? No. Her nomination was withdrawn.  Instructive for several reasons.


The first is that Kavanaugh worked for the same President who nominated Harriet Miers.  The second is that a lot of the objections to her came from fellow Republicans.  Third is that the nomination was withdrawn.


The first serves as all the more reason that Kavanaugh’s time as a political operative and time in the Bush White House needed far further scrutiny.  But that did not happen.


Nor did Republicans really question him once nominated, although it appears Mitch McConnell originally pushed for other nominees who would present less obstacles to confirmation than Kavanaugh.  But that was before Kavanaugh’s nomination. After it, McConnell was all in. Obviously, that means that Kavanaugh’s nomination was never likely to be withdrawn.


What did happen is that when questioned about his time in the White House he lied or mispresented matters. He claimed not to be involved in a torture program in which he was, in fact, involved, for example.


He lied or misled about other things as well. He lied about receiving stolen democratic party materials when emails established he received said material.


He also claimed not to know about the sexual misconduct of a federal judge for whom he clerked.  It was an open secret, yet he claims he knew nothing.  Which presents him as one of two things.  A liar, covering up. Which is sad, because he could have instead spun this in his favor, saying he was a victim of a system that encouraged his silence, painting him as a MeToo ally early on.  Or someone too unobservant and stupid to really see what was going on, painting him as probably too incompetent for a job such as Supreme Court Justice.


There was more.  All of this was before the story about Dr. Ford even broke. Some of it occurred during his prior judicial nomination hearings.


Why lie? Why not tell the truth and when necessary spin it as a positive?


Here’s a hint for those not in the legal profession. I’m talking about Lawyering 101.


You work with the truth you have. You don’t lie, because you don’t want to risk getting caught in a lie. Stretch the truth? Yes. Spin and twist the story to something favorable to you? Absolutely. But don’t outright lie or obviously misrepresent.


Kavanaugh, smart guy who knows how the game is played, knows this. But did it anyway. Under oath. Over stuff that was easily verifiable.  Right there he blew it. Right there he disqualified himself. And also proved he probably is not competent for the job.  I mean if you want to write opinions to twist the law to suit your ideology, you need to be able to stick to the facts but still manage to spin things during the job interview just to show those credentials. You certainly don’t want to give the impression you’re not competent to do that.


So, even before the Dr. Ford story become public, I was deeply disturbed by this nominee, not for ideological differences, but for his own disqualifying deeds under oath.




Supreme Court nominee Judge Brett Kavanaugh sworn in  before the Senate Judiciary Committee on September  27, 2018.  Saul Loeb/Pool Image via AP.


SEN. GRASSLEY: Do you affirm that the testimony you’re about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?


Senate Judiciary Committee Hearing, September 27, 2018.


We haven’t even gotten to Kavanaugh’s performance two Thursday’s ago, after Dr. Ford testified. Where Kavanaugh managed to continue to blow layup after layup. For reference, here is a Vox article that allows you to see the entire transcript of the two witnesses (albeit in hover over the graph bits), and a transcript of Kavanaugh’s opening statement.


I call it a performance because that is precisely what it was. Kavanaugh was performing for one particular audience: President Trump. He came out and spoke just like Trump likes to hear men talk when facing sexual misconduct allegations.  And, of course, if it plays to Trump, it plays to his base, which is to say, the GOP base.


Make no mistake. Kavanaugh was not speaking off-the-cuff or unrehearsed. He read from a carefully crafted pre-prepared statement and made it look like spontaneous rage, even as he flipped the pages of his pre-written remarks.  Under oath. Keep remembering he deliberately chose in advance to utter those words under oath.


He lied and misled again. On easily verifiable stuff. Like boofing. FFFF.  Devil’s Triangle.  Whether he partied and drank to excess repeatedly in his high school years. What he really meant by “Renate Alumnius”. All of these statements of denial were rebutted by his contemporaneous records.  His calendars. His yearbook entry and those of his friends.  And later, as we discovered, a letter from him to his drinking buddies.


He lied about other stuff too. He outright said that he first learned of Deborah Ramirez’s accusation about him drunkenly trying to shove his genitals in her face at a Yale party only recently, after the New Yorker article came out. However, there are texts that indicate that he was contacting friends to contradict Ms. Ramirez’s story as early as July.


Again, all of that is stupid stuff to lie about. It’s also easy stuff to tell the truth about and simply spin in a positive light.


Use a redemption narrative about the excesses of youth and how you know better now.  That would have worked with narratives Kavanaugh and his supporters were already spinning about how he shouldn’t be torpedoed for something that happened 30 years ago.


Also, remember his answer to what “boofed” meant?  He said it referred to farting; they were 16. See. He was already playing the “young and stupid” card. He could have admitted many of these things while still treading a thin line of not admitting to doing anything wrong. Again, this is Lawyering 101.  He’s an experienced attorney and judge. This should solidly be in his wheelhouse.


With respect to knowing of the Ramirez allegation in advance (and there is some evidence to suggest that despite his protestations, Kavanaugh also knew of the Ford allegations in advance), just admit to it. Don’t deny it. ‘Fess up.


Admitting to knowing about an accusation before it becomes public knowledge is not an admission that the allegation is true. It’s not even an admission that you weren’t bushwhacked by Democrats with it later.  You can spin that to say you were informed of it a few months ago, appropriately investigated it, but it was such a nothing you assumed the Democrats wouldn’t waste everyone’s time with that nonsense.  Trust me, it’s no worse than Kavanaugh and Graham’s suggestions during the hearing that we should all be ashamed of daring to consider a woman’s claim of sexual assault at all.


Note. No one has taken issue with Kavanaugh’s record of underage drinking. And to be clear, his testimony was that he drank in school. Despite his testimony that in his Senior year, he was legal drinking age, he was not, as the drinking age changed to 21 that year.  However, no one is suggesting that because that was an illegal act, he should be disqualified from the Supreme Court bench.  If Democrats really were pulling crazed, desperate attempts to torpedo him, they would have floated his illegal drinking as being disqualifying too.  They did not.




From the moment Dr. Ford’s story broke in the Washington Post, and likely even before, when it was still an anonymous accusation, Kavanaugh and his team were preparing the response. They anticipated a further hearing and were no doubt strategizing what should be in that opening statement under oath.  Kavanaugh’s remarks were not spur of the moment, any more than Dr. Ford’s opening remarks were.


With that in mind, two things in particular stood out to me above all else in Kavanaugh’s testimony two Thursdays ago.  Things he chose to say UNDER OATH.  And doing that was the ultimate blown layup. He disqualified himself. Unquestionably so.  He knew it even, if not at first, later, when esteemed members of the bar, his friends/associates, law professors, even a Republican retired Supreme Court Justice pointed out that these things disqualified him.


The first is that he claimed all of this was the product of a Democratic conspiracy, linked to Clinton revenge fantasies. This is right up there with the discredited photos allegedly showing connections between Dr. Ford and George Soros (Bogeyman of the Right™).  Or countless other baseless and debunked stories being spun to discredit or diminish Dr. Ford which Snopes has been swimming in since her name became public.  It is pure conspiracy theory claptrap.


Yes, I am sure the Democrats tried to use all this to their advantage, just as Republicans would have and have done when the roles are reversed. They had no problem exploiting the stories around Al Franken to get him to resign.  (For the record, I am one of those who still wanted Frank to resign, but that’s beside the point in this instance.)


However, there is a huge difference between that and alleging some Clintons-on-the-revenge-warpath conspiracy, which implies, quite frankly, that Dr. Ford was a paid liar who made it all up.


Especially when making such a baseless claim under oath. You remember right? Promising to tell the truth under penalty of the law. That oath.


He peddled an unfounded conspiracy theory under oath. Not on the spur of the moment. Not a slip of the tongue. Those words were drafted in advance, and he deliberately chose to say them under oath. In an angry, belligerent tone.


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.

. . . .

And as we all know in the United States political system of the early 2000s, what goes around comes around.

Judge Brett Kavanaugh, Senate Judiciary Committee Hearing, September 27, 2018.


He also went further, as shown by that last sentence.  He chose, under oath, to suggest he would be avenged against an entire political party. While in the full context of his speech, he is also referring to Democrats’ actions causing woe to our society. But his words also dripped partisan threat. And invoking the product of negative partisanship, in which he participated, is hardly a remonstration about protecting our society. This was a partisan threat.


Someone applying not just to be a fair, impartial judge, but a Justice of the Supreme Court, essentially swore that there would be some kind of retribution on a political party. I said swore. As in a vow. Because, again, he deliberately said this under oath.




Many folks saw Kavanaugh’s angry performance as appropriate for a man wrongfully accused of a heinous assault, especially from over 30 years ago, and when it could torpedo everything he worked toward his entire life. All those checked boxes.


Many have done so ignoring all the issues with Kavanaugh’s September 27th performance, including the lies, the belligerence to the Senators, and the refusal to answer basic questions which, if he was innocent, he should have had no problem answering directly.


Actually, I suspect some of the death-grip people have on how wonderful, exonerating, and extremely appropriate Kavanaugh’s performance must needs have been is because deep down they were very affected by the horrors of Dr. Ford’s testimony. A reaction so visceral that, in self-defense, the self-conscious created the illusion in the mind that Kavanaugh offered equally, if not more effective, counter-testimony, lest the psyche get dragged down by guilt for arguing to give Kavanaugh a pass.


It was clear, as Dr. Ford testified, that even those who were diehard Kavanaugh supporters were shocked and even moved by Dr. Ford’s testimony. It was only after that the spin machines went into overdrive. Self-deception often occurs unconsciously and out of mental self-defense.


Many folks who fond Kavanaugh’s performance as stellar or completely appropriate entirely ignored context.


This was a job interview. And not for any job. For the Supreme Court.  And not before any normal employment panel. Before the Senate Judiciary Committee. After serious issues that could affect the prospect of employment had been raised. They had a right to investigate. In fact, I argue they had an obligation to do so.


Add to that the person being interviewed was an attorney and federal judge.  He understands comportment. He understands temperament. He has no doubt seen numerous angry, righteously indignant witnesses, and knows it is possible to convey that indignation while showing decorum and respect to the forum.


As an attorney and a judge, he knew that had he acted like that as a witness before any other Congressional Committee, one that was not so determined to hand him a seat on the Supreme Court, he probably would have been found in contempt of Congress.  He knew that had he behaved that way in front of a court, his would have been hauled off to jail for contempt of court.


One more time. He did it deliberately. He crafted his opening statement and the anger around it, which he carried through to the rest of his testimony. He prepared all that beforehand with full knowledge of what he was doing.


In the wake of his behavior, his conspiracy theory peddling, and his partisan threat of vengeance, all under oath, legal professionals have come forward to make clear, as I am, that such behavior is disqualifying. That includes approximately 2,400 law professors, although admittedly, that may only be about 10% of the law professors in this country.  That includes friends and associates who know and like Kavanaugh or originally supported Kavanaugh’s nomination. That includes even a retired Supreme Court Justice, himself a Republican.


Kavanaugh saw that response and basically admitted that he knew he screwed up. He wrote an op-ed for the Wall Street Journal that I call a “sorry, not sorry” piece. Like a lot of other things along the way, he obfuscates in the op-ed as well, but it’s to be expected.


He doesn’t address his conspiracy theory claim or his partisan threat to a political party. Instead he says he probably crossed over a line in being so angry at the hearing, but…


And there it is. He added a “but” because he really is not sorry at all. But, of course, he was right to be angry. He was righteously responding to the heinous, false allegation as a man, a husband, and a father.


Awe. Isn’t that nice?


Little Brett screwed up by behaving in a way that he knew at the time was entirely unacceptable but chose to do it anyway.  All the same, as the op-ed goes on, he assures us he will be a fair and impartial judge who plays well with others in a non-political way on the Supreme Court.


And there you have it.  This kind of assurance is yet another confirmation that he knows his partisan conspiracy theories and retribution threats were very problematic. He doesn’t apologize for them, like he does his anger, because he knows that would be an outright admission in print that he disqualified himself. But he clearly is aware that he has done so.


Instead, he goes with the “I know (but can’t admit) I acted all partisan fearmonger and threat-maker, but I didn’t mean it. I’ll be fair and impartial, I swear.”  But that’s the problem. The op-ed is not under oath. However, he did swear. To be partisan. To be anything but fair and impartial. Under oath. About a week ago.


As one commenter said, he sounded like the alcoholic, wife-beater after he sobered up promising the wife he’ll never beat her again. This is Domestic Violence Awareness Month. We know how that type of story usually plays out, right?


Welcome to the Supreme Court, Judge Kavanaugh.


Judge Brett Kavanaugh sworn in as Supreme Court Justice by Outgoing  Justice Anthony Kennedy, October 6, 2018. Fred Schilling/Collection of the Supreme Court of the United States via AP.




I could go on about how Judge Kavanaugh has further been made a hero of the privileged, white male being put upon by women insisting they be treated with respect, not sexual abuse.  However, that is a bitter, depressing take, perhaps for a later time.


Instead, to recap, what we have is someone who once again should have had an easy process.  Yet even before we learned of Dr. Ford, he already was potentially disqualifying himself through his own testimony.


Then, in response to Dr. Ford, he knowingly came forward and unequivocally disqualified himself further from the job under oath.


Like I said, as an attorney and judge, he no doubt had numerous examples of how to play the righteously indignant witness eager to prove how wrongly he has been treated and how falsely accused he is.  He could have been angry and still shown decorum to the forum. He could still have taken issue with what he perceived as Democratic shenanigans. All without disqualifying himself.  He deliberately chose not to do so.


Only after numerous professionals, several of whom had no political reason to do so, began pointing out that he had disqualified himself, Kavanaugh gave his “sorry, not sorry” assurance not to do it again. And in so doing, obliquely admitted to the disqualifying behavior.


It does not matter whether I liked Kavanaugh or not when he first was nominated. Right now, while it should matter, one can even set aside the serious allegations against Kavanaugh by Ford and others.  Even discounting all of them, Kavanaugh managed to screw up, by repeatedly disqualifying himself.


Easy-peasy. Yet, he missed the layup. Again, and again, and again.


And now he has been rewarded with a Supreme Court seat.


He’s not the first. Trump and others have said things and done things. They have messed up easy layups. And what happens? They get stronger. More support. I get told that it’s clever, or right, or correct.


I don’t know what this all means for us as a society, but I don’t think it’s anything good.


Doing the wrong things means you’re the one who gets a cookie.  Yeah, that’s probably going to bite us in the behind down the road.


Down is up.  White is black.  Wrongdoer is victim.


Welcome to the alternate reality.