Courts

Remember That Time Brett Kavanaugh Said Polygraphs Are Important In Making Hiring Decisions?

Before he starts bashing polygraphs, let's remember when he thought they were just swell.

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(screencap via YouTube)

Christine Blasey Ford took a polygraph test to lend further credence to her sexual assault account. For anyone who didn’t grow up watching bad spy movies, a polygraph is the device affectionately known as a lie detector. The expert who administered the test concluded that she was telling the truth. These polygraph results were just entered into the record by Senator Klobuchar, but not before she made the point that the Judiciary Committee refused to hear testimony from the professional who administered the test.

How much value should anyone give these results? Not very much. Polygraphs exist on that plane right between astrology and phrenology, beset by years of scientific research uncovering flaw after critical flaw in their reliability. That said, agreeing to take one in the first place provides some indicia that a person is confident in their account of events. That does matter.

But Brett Kavanaugh has not taken a polygraph test and he shows no indication that he intends to. That’s curious because…

Yes, as a judge, Brett Kavanaugh has been all about polygraph tests in making hiring decisions. I guess he only approves of them when other people are getting hired. While he’s not written on the value of polygraph results per se, he’s approvingly cited the technology more than once.

Most notably in Sack v. U.S. Dept. of Defense, 823 F.3d 687 (2016), a case about FOIA fees, Judge Kavanaugh waxed philosophic about the value of polygraphs in making hiring decisions:

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As the Government notes, law enforcement agencies use polygraphs to test the credibility of witnesses and criminal defendants. Those agencies also use polygraphs to “screen applicants for security clearances so that they may be deemed suitable for work in critical law enforcement, defense, and intelligence collection roles.” Declaration of Alesia Y. Williams, Defense Intelligence Agency, Chief of FOIA Services Section, at Joint Appendix 226. In Morley v. CIA, we stated: “Background investigations conducted to assess an applicant’s qualification, such as … clearance and investigatory processes, inherently relate to law enforcement.” 508 F.3d 1108, 1128–29 (D.C.Cir.2007) (internal quotation marks omitted).

The Government has satisfactorily explained how polygraph examinations serve law enforcement purposes.

This served as the preamble to finding that law enforcement reports detailing the shortcomings of polygraphs must be shielded from disclosure lest it undermine public confidence in polygraph accuracy.

Now here we are, with Brett Kavanaugh in the midst of the most serious job interview in American government. A lifetime job that actually carries tremendous import to “critical law enforcement, defense, and intelligence collection.” Yet, now that the chips are turned against him, he’s suddenly skittish about polygraphs. In the coming hours and days, his cronies will lay bare every deficiency ever discovered in the technology. They’ll go so far as to claim anyone who might take a lie detector test is already proving that they’re some kind of kook. It’s all going to happen.

Brett Kavanaugh is prepared to stand for the proposition that “there’s a law for thee but not for me.” That should be a disqualifying characteristic in a Supreme Court justice.

Of course, among the many disqualifying factors floating around, this one will get lost in the shuffle.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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