As I argued a few days ago: today’s hearings on the Ford allegations about Kavanaugh were not primarily about the “justice” or “veracity” of the allegations in a criminal or civil sense. Nor were they primarily about Ford or Kavanaugh. They were about political justice. They were about whether the Kavanaugh confirmation hearings would involve serious and fair consideration of the nominee; whether the serious allegations advanced by Ford would be taken seriously; and whether the Republican leadership would allow a serious deliberation based on all due diligence.
The assault allegations against Kavanaugh are damning, and they go to deeper and more serious issues: his (lack of) respect for women’s rights and his (lack of) openness to a serious investigation of his history — not simply his history as a judge, but his history as a Republican political operative, and as a Bush II White House operative, and his prior history as a hard-partying frat boy who actively participated in misogynistic fraternities and clubs.
These things, all of them, are very serious. And serious consideration of them is essential to the way we evaluate this man, and to the way we protect the future of our constitutional democracy. We deserve to have Supreme Court justices who have a history of integrity and respect for all and appreciation for the rights of all. And we deserve to know this through appropriate public hearings in which full information is presented.
Did Kavanaugh actually assault Ford, as she alleges? We cannot know this simply from listening to the two of them. Ford was much more measured in her testimony than Kavanaugh. She welcomed a full investigation and he did not. She was kind and cooperative even though she had no personal reason to be there, and had nothing to gain. He was angry and defensive and evaded or ignored or gaslighted many questions, and he had much to gain by being there. I find her believable. I find him arrogant and unbelievable. But it is impossible to know the truth of her allegations of assault simply by listening to the two of them. We knew this before.
But there are two things that we do know, now that the hearing has been held, that we did not know before.
One has to do with the process: we know, as we feared, that the Senate Republicans rigged the hearing. Their use of Ms. Mitchell as “Designated-Female-Attack Dog,” the interventions of Grassley, the idiotic five-minute rule, and the refusal to call other important witnesses — the Republicans deliberately refused to give the allegations a truly fair consideration, and set up this process in order to steam roll the confirmation of their man. The Republicans proved themselves to be utterly cynical in their sloughing off of an FBI investigation, and Kavanaugh proved to be as equally cynical. Their repeated assertions that no FBI investigation could decide for them was beside the point, and they all knew it, and yet they kept saying it. The fact that Kavanaugh, who surely knows better, kept saying it, seem pretty dispositive to me. It surely indicated his refusal to be serious about process.
The other has to do with Kavanaugh himself. I suppose that Kavanaugh the man had every right to be as angry and outraged as he chose to be. Maybe it was authentic, maybe it was feigned. It is possible that he really never assaulted Professor Ford; it is much more likely that this entitled man sincerely believes it is outrageous that he is being called to account for his behavior. I think his anger was revealing in many ways. But I cannot reasonably conclude that it proves he is “guilty” of the particular allegations.
At the same time, this hearing was a public deliberation about a Supreme Court nomination and not a space of personal expression or vindication. And yet Kavanaugh chose to present himself publicly in a way that seemed to defy the stated public purpose of the hearing.
He was belligerent. He did not demonstrate anything remotely resembling “judiciousness” or “judicial temperament.” He was quick to anger, and defensive, and demonstrated no ability to control his temper. Compare his conduct, and his lack of composure, with the conduct of Hillary Clinton when she testified for over ten intense hours before the sham Benghazi hearings. She was a woman who understood the importance of public appearance, and of rising above the difficult and even hostile situation presented by her interrogators, and of demonstrating reason and character. Kavanaugh proved himself to be an angry man whose personal sense of grievance (and perhaps his sense of male entitlement) overwhelmed all other considerations.
More importantly, he expressed undisguised hostility towards Democratic Senators, Democrats as a political party, and “liberals” more generally. He railed about a “conspiracy” against him. He revealed his deep partisanship — something that has been true of him for decades — and his deeper resentment towards ideological adversaries. As Mark Joseph Stern put it in Slate: “Brett Kavanaugh’s Opening Statement Was a Defiant Howl of Rage Against Democrats.”
Kavanaugh may have fueled the anger of his Republican compatriots on the Senate Judiciary Committee (only Jeff Flake seemed at all in possible doubt, with an emphasis on seemed and possible). He may have inspired Trump, who can now see that he has nominated a true authoritarian soulmate to the Court. At the same time, the hearing was a sham, and Kavanaugh behaved like an angry and a cynical man.
What will be the result? We will see soon enough whether Kavanaugh is confirmed, and whether and how that impacts the upcoming November elections, and how those prefigure the future of our politics.
One thing is for sure: it is no longer possible to doubt that we are playing “constitutional hardball.” And that is not a game for the faint of heart.
Jeffrey Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington.
