How could all this have played out differently?
If people on both sides of the aisle had been willing to be even a little reasonable, we could have avoided this ugly, ugly fight.
1. The Democrats could have exercised a little caution and not filibustered Neil Gorsuch, who was and is a spotless, blameless nominee and was going to be confirmed one way or another. There was absolutely no reason for the Dems to waste their firepower on him. Remember (I didn’t actually understand this until the Kavanaugh fight)–until Gorsuch, the 60-vote threshold wasn’t for confirmation. A simple majority was and still is the requirement for that. (Clarence Thomas had only 52 votes to confirm.) 60 votes were required to stop a filibuster, which is a refusal to end debate and move to a vote (called “cloture”), but a simple majority could remove that requirement, thereby “nuking” the filibuster. (I know. It’s pretty arcane. It seems so odd to me that a simple majority can remove a safety threshold of a super majority. I probably need to go back and study the Constitution a little more—what a thought.) Since Gorsuch was simply replacing Scalia and so the balance of the court would be unaffected, many analysts think that Senate Minority Leader Schumer made a grave tactical mistake in blocking the vote on Gorsuch. Since he did so, Majority Leader McConnell went ahead and nuked it. But it is very doubtful that McConnell could have marshaled 51 votes to nuke the filibuster on Kavanaugh, so Kavanagh would never have advanced to a vote and this whole sorry mess would have simply not happened. (For an excellent analysis of this point, see Allahpundit over at HotAir.com, “Kavanaugh Would Be Done Already if the Dems Hadn’t Filibustered Gorsuch, Right?”)
2. Going back another level, the Senate Republicans could have gone ahead and allowed a vote on Merrick Garland. They didn’t have to confirm him, for Heaven’s sake, as I often say. Of course, then Barack Obama would have advanced another nominee, and they would have had to figure out what to do about that one, but by the time that happened, and there was all the preliminary blah-de-blah that the process takes, it really would have been too close to the election for a confirmation vote. (Scalia died in Feb. 2016.) And the utter rage of the Democrats over that unfairly-kept-vacant seat helped fuel this whole new cycle. (Many conservatives, including George Will, agree that this denial of even a vote on Garland was wrong. Other conservatives think the move was justified. I agree with the estimable George.)
3. As I move up to the present time, it’s fair for me to point out, as Susan Collins did in her v-e-r-y l-o-n-g speech about why she was going to vote “yes” for Kavanaugh, that the mess over the sexual assault allegations came from the leak of Christine Blasey Ford’s letter she sent to Senator Diane Feinstein. Who did that? Feinstein adamantly denies that either she or her staff leaked the letter, and the author of the Intercept article where it first appeared says that none of them was the source. I wonder: what about the Congresswoman that Blasey Ford first contacted, Anna Eshoo? I don’t know if she had a copy of the letter or not, but she was the first governmental figure that Ford contacted. I also don’t know how Ford thought that her telling Eshoo and Feinstein to keep her story confidential was going to help knock Kavanaugh out of the running; I guess she thought that somehow Feinstein would be able to do something. Ha. But the fact still remains: no leak, no mess. You can argue back and forth about whether or not it was a good thing that this info came out, but Ford wanted it kept out of the public eye and her wishes were not honored.
So if any one of the foregoing had not happened—the Gorsuch filibuster, the Garland grandstanding, or the Ford leak—we might have avoided the drama of the past weeks. The fact remains, though, that all three of these events did happen. Given that, could the situation still have been salvaged?
I think so. All it would have taken was a little humility and honesty from Brett Kavanaugh. He could have saved himself, his family and the country a lot of pain, and totally taken the wind out of his attackers’ sails, by just admitting that it was entirely possible that such an event as Ford described had taken place but that he didn’t remember it. He could have said that such actions on his part were inexcusable, and that he sincerely apologized for it. He could have said that his life since then had been exemplary and that he hoped that would weigh in his favor, but that the final say was up to the Senate. And then he could have left it at that. Instead, we were treated to three, count ‘em, three efforts on his part to salvage his nomination. Yes, he made it in by the skin of his teeth, but I think he would have made it anyway, and helped himself enormously, by just owning up to at least the possibility that he had behaved in just the way Ford had described. (And we would have been spared the utterly nauseating defenses of him by such stellar moralizers at Jerry Falwell Jr. and Dennis Prager.)
Because the fact of the matter is that it is abundantly clear to anyone who has been paying attention, and who understands how the memory of traumatic events works, that Ford is telling the truth, or at least the truth as she experienced it. It is laughable to insist that she got Kavanaugh mixed up with someone else; she knew him. Ed Whalen, the conservative commentator who floated the ridiculous (and possibly libelous) idea that he knew who Ford’s attacker really was and named the guy, deserved all the calumny he got. (And the loss of income as a result of his suspension from the presidency of the Ethics and Public Policy Center.) It is equally laughable that she just made up the story, or, as President Trump tweeted, that she should have contacted the police (as a 15-year-old!) “if it was as bad as she says.” An excellent article in the Washington Post says,
“It’s essentially the same phenomenon that makes people forever remember what they were doing when planes hit the World Trade Center on 9/11, or when they learned John F. Kennedy was shot. It’s such a basic tenet of psychology and cognitive science that some researchers watched the mistaken-identity theory spread through the Senate this month with a sense of stunned dismay.” (“The junk science Republicans used to undermine Ford and help save Kavanaugh”)
To me the most telling points that Ford makes in her story aren’t about Kavanaugh at all: they’re about Mark Judge. She names him as the other guy in the room. Three things about this statement add great credibility to her story:
1) It is indisputable that Judge and Kavanaugh were close friends in high school.
2) It is indisputable that Judge was a falling-down, blacking-out drunk during his teens and twenties according to his own memoirs and that he names Kavanaugh as behaving the same way in high school. (His thinly-veiled alias is “Bart O’Kavanaugh.” Brett’s nickname was Bart; some of Judge’s friends asked him not to include Kavanaugh as such an easily-recognized character in the books but he went ahead and did so anyway.) He describes many parties that fit exactly the same mold as the one Ford says she attended.
3) It is indisputable that Judge was concerned about what he might have done during his drinking spells; he asked after one such event, a wedding reception, if he had “hurt anybody.”
How would Ford have known this? Did she hunt down a copy of one or the other out-of-print Judge memoirs? I don’t think so.
Okay. Wanna know what I think happened? Here goes:
After swimming at the country club, several teens go over to a parentless house to have some “skis.” This may or may not have been the infamous July 1 party over at “Timmy’s” that’s on Kavanaugh’s infamous calendar, but I’m inclined to think it wasn’t. (What kind of person keeps his calendars from high school? Just asking. Why Kavanaugh thought those calendars were going to help him is beyond me.) Ford describes it as some kind of preliminary party before the main event of the evening, wherever that may have been, so it probably wasn’t important enough to be put on the calendar in the first place. The boys, including Judge and Kavanaugh, are “stumbling” drunk, which means that they’d already been drinking, probably at the pool. (How possible was it to sneak in alcohol to the country club, especially by underage kids? Good question.) The potion of choice at the party is beer. I used to think of beer as being pretty weak sauce, but I realized that I was thinking of the 3.2 stuff that used to be advertised by Colorado bars; 5% alcohol for beer is more normal. One other little tidbit that I just picked up from the Internet: the alcohol in beer is absorbed into the bloodstream faster than that in wine or spirits. (Why that is, I don’t know.)
Okay. Ford has been invited to the party by the cool guys; she has no business going there, of course, but she does. She has one beer and at some point goes upstairs to find the bathroom. Kavanaugh and Judge pull her into one of the bedrooms and the scene she has described ensues. Again, the telling details center on Judge: Ford says that she looks at him hoping he’ll help her but that he does nothing. Kavanaugh puts his hand over her mouth when she starts to scream and she’s afraid he’s going to accidentally smother her. But then . . . and this is key: Judge jumps on top of the two of them. Kavanaugh is undeterred. And then Judge jumps on top of the two of them again. This time they all tumble off the bed and Ford is able to escape. She locks herself into the bathroom and hears the two boys going down the stairs, “pinballing” off the walls because they’re so drunk. (Another telling detail, by the way.) When she thinks it’s safe she sneaks downstairs and somehow gets out of the house and goes home, but she doesn’t remember how she accomplishes this. Her memory, like that of most of us, is spotty.
Why did Judge jump on top of them? I think he did it to break up the attack. Only to him, and to Kavanaugh, it wasn’t an attack at all. It was just horseplay. They were upstairs, and this girl came up too, and they thought they’d have some fun. Maybe they were even lying in wait for whomever happened to appear. I don’t think that Kavanaugh was actually trying to rape her, but she thought so. And at some point I think Judge realized that it had gone too far; the girl was really scared. So, in his drunken state, he did what he thought of in the moment to break things up without looking like a spoilsport. And it worked. (None of the foregoing is meant to say “boys will be boys,” by the way. What an insult that little slogan is to decent boys and men everywhere! None of this is meant to excuse anything. Explanations are not excuses.)
I don’t think either boy ever gave it another thought. What to Ford was something that stuck with her for the rest of her life was completely trivial to them. As I’ve said before, I don’t know what it’s like to be drunk (and I’m thankful to say so), but it seems clear from even my limited knowledge that you don’t really have to have a true “blackout” to have fuzzy memories about what happened when you drank too much. If Judge’s memoirs are to be trusted, this type of party was very much the norm for his circle of friends. There would be absolutely no reason for this bit of roughhousing (as they’d see it) to stand out, if indeed they remembered it at all. Suddenly, 35 years later, Kavanaugh is brought face to face with this person who says he did something that he doesn’t remember doing. And his response is to deny, deny, deny.
Well, it’s too late now for Kavanaugh to take my advice. His confirmation has stoked the partisan fires and riled up the Democrats for the midterms. He and his family have been through a dreadful time, and whatever may or may not be his fault in the matter it’s certainly true that his wife and daughters deserved none of this. He’ll take his seat today, October 8. And there he’ll sit for the next 30 years. Is it a victory for pro-life conservatives for him to be there? I just can’t see that it is. If changing hearts and minds on various social issues, including abortion, is truly what we want, then this ain’t the way to get there.
Oh, and one last thing: a number of truly pro-life conservatives tried to get Pres. Trump to nominate someone else. They didn’t think Kavanaugh was conservative enough, and they also feared his enormous paper trail from his years in the Ken Starr investigations into Bill Clinton, the Bush White House, and on the bench. But Trump insisted on him. One school of thought says that Trump was determined to get Kavanaugh on SCOTUS because of Kavanaugh’s views on Presidential powers: he has a pretty expensive view of them, nurtured, he says, by his regrets over the Ken Starr investigation and subsequent impeachment of Bill Clinton. Remember, Kavanaugh was Ken Starr’s top aide. So, the theory goes, Trump wants someone on the Court who’ll be on his side if ever the Mueller probe comes up with a subpoena or something else Trump doesn’t want to obey.
And if, to quote Kavanaugh himself at that disgraceful SJC hearing, “what goes around comes around,” there’s no clearer evidence of that in this situation than the fact that it was Kavanaugh who came up with the very graphic and explicit questions that were posed to Bill Clinton about his various activities with Monica Lewinsky. (Sigh. Talk about TMI.) So I can’t feel too sorry for him in having to answer all the questions about the juvenalia in his high school yearbook.
Well, there it is. Midterms are four weeks from tomorrow. We’ll see what happens!