Courts

Have You Ex-Kavanaugh Defenders Learned Anything?

The people who brought us Brett Kavanaugh need to atone for their mistakes before they're trusted again.

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(screencap via YouTube)

Benjamin Wittes, an early and vocal defender of Brett Kavanaugh, wrote 3,500 words in the Atlantic explaining that he would not now support Kavanaugh’s confirmation to the Supreme Court.

Not one of those 3,500 words was “sorry.” Not one of those 3,500 words was “Alex” or “Kozinski.” It’s 3,500 words explaining a personal journey that brought him from blind support of a fellow elite buddy to the conclusion that a man who lies to Congress maybe shouldn’t be on the Supreme Court.

Based on the reactions I’m seeing, I’m supposed to welcome Wittes to the party. Moderates are sharing Wittes’s article with me as if it’s a .gif of Vader throwing the Emperor into the Death Star. I’m supposed to welcome all of the elite legal minds who’ve spent the past month humping the “character” of Judge Duffman, if they can now see that tying their reputations to Kavanaugh’s was a disastrous call.

I can respect what Wittes is trying to do, now. There are many, many other Kavanaugh defenders running around out here who have yet to show the courage and decency to publicly repudiate a man who they must now be able to see is manifestly unfit for the Supreme Court. Wittes, at least, has honor.

People make mistakes, cabals make mistakes, but for society to move forward, people must be able to learn from their mistakes. There’s nothing in Wittes’s piece that suggests he’s learned a goddamn thing. There’s nothing in the letters pouring in from elite institutions — institutions that only two weeks ago were fully onboard with the Kavanaugh nomination — that suggests those institutions have learned anything. If these people and places refuse to reckon with their complicity in creating Brett Kavanaugh, then their late-breaking letters and protestations mean little. Dr. Frankenstein at least tried to kill his monster. These guys are just trying to run away from theirs.

The Brett Kavanaugh confirmation process started with Brett Kavanaugh lying about sexual harassment. Kavanaugh came out of the gate lying about what he knew about the rampant sexual harassment conducted by his friend and mentor, Alex Kozinski. Kavanaugh claimed that he knew nothing about Kozinski’s behavior, and was as “shocked” as anybody when his behavior was revealed.

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That was a lie. That is a lie that is still not being talked about, or investigated by the FBI. I wrote about the sheer ridiculousness of Kavanaugh’s lies about Kozinski, the morning after he was nominated. That post got dragged in conservative and alt-right press. I was accused of trying to impugn “guilt by association” and sully Kavanaugh’s “sterling reputation,” for ideological reasons.

In fact, EVERYBODY should have been asking those questions as soon as Kavanaugh was announced, because ANYBODY paying attention to the Alex Kozinski scandal knew that Kavanaugh was simply not being truthful about what he knew and when he knew it.

Kozinski — and we have seen this with many men in the #MeToo era — made a lot of people complicit in his harassment. His harassment of women was an open secret. He disseminated his “Easy Rider Gag List” to a wide array of powerful people: former clerks, judicial friends, and journalists. (Not me, I should add, and if I seem righteous about this point, it’s because I am.) The journalists were the deepest cut, because by roping them into his game, Kozinski all but ensured that people would be cautious about how they reported on his perversions.

I know that Brett Kavanaugh knew about Alex Kozinski, because nearly everybody knew about Alex Kozinski. I know that the press didn’t want to press Kavanaugh on Kozinski, because to do so would have required them to press themselves on what they knew, versus what they reported, and why. Alex Kozinski is the canary in the coal mine for all of Kavanaugh’s untruths about his past, and the elite crew that protected Kavanaugh has still not dealt with their own complicity in letting Kozinski get away with it for so long.

As we got into the Kavanaugh confirmation hearings, Kavanaugh continued to lie. The man was revealed to have given false or misleading testimony to Congress in 2004 and 2006. Game over? Hardly. Again, the some of the same people who now say that Kavanaugh’s consistent lying about his drinking is kind of a big deal, didn’t think Kavanaugh’s lying to Congress was that big of a deal. The partisan hard-on they got from being so close to having enough votes to overturn Roe v. Wade must have short-circuited their ability to demand accurate testimony in front of Congress before gifting Kavanaugh a lifetime appointment.

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Instead of seriously wrestling with Kavanaugh’s lies, these people tried to muddy the waters by holding Kavanaugh to the legal standard of criminal perjury. All of this CRAP about how Kavanaugh can be on the Supreme Court if he could not be convicted of sexual assault based on a 36-year-old incident is being led by people who cut their teeth by telling you that a Supreme Court nominee can lie and mislead Congress so long as it does not rise to the level of criminal perjury.

As Mark Ruffalo might say: THEY KNEW! All these people knew Kavanaugh was lying about Alex Kozinski, and lied to Congress, and they still defended his… judicial character.

Until Dr. Christine Blasey Ford came forward. It should not have been necessary for a woman to relive the most painful moment of her life for the “Kavanaugh is a good guy” people to stop their gaslighting of America. Dr. Ford should not have been required to be retraumatized by the President of the United States in order for these people to notice they were backing the wrong horse. Dr. Ford should not have had to lay herself down on the tracks to make the Kavanaugh character defenders hit a speed bump.

Even her sacrifice might not be enough, and alone it might not have been enough for Ben Wittes. Here’s what he wrote:

The allegations against [Kavanaugh] shocked me very deeply, but not quite so deeply as did his presentation. It was not just an angry and aggressive version of the person I have known. It seemed like a different person altogether.

Get the hell out of my face with that.

Kavanaugh’s behavior at his hearing was, indeed, horrifying. But we are NOT going to lose sight of the fact that the man has been accused of trying to rape a 15-year-old girl. MOST MEN DON’T DO THAT! MOST MEN ARE NEVER ACCUSED OF DOING THAT! Part of the mansplaining around Kavanaugh — and this isn’t just happening on the right, and it isn’t just being pushed by the sexual predator-in-chief — is that women could accuse men of anything unless men are presumptively believed. The statistics simply do not back up such male-dominated assertions. It’s estimated that only 2 percent of rape claims are false. If you had 100 Brett Kavanaughs, 98 of them sexually assaulted Christine Blasey Ford. We literally EXECUTE people on death row who have a statistically better chance of being innocent than Brett Kavanaugh does. This narrative that men must “live in fear” of being falsely accused of sexual assaults that they did not commit is total horses**t.

And I say that as a black man. A black man who makes his living in public. I cannot buy a white woman a damn drink without risking some measure of my personal safety. White women can literally get me killed. And yet, when presented with a credible woman with nothing to gain by coming forward, a woman who told her husband and her therapist and her Congresswoman of her trauma before Brett Kavanaugh was even up for promotion, it’s really not hard for me to believe her.

Believing Christine Blasey Ford requires you to disbelieve Brett Kavanaugh. She wasn’t assaulted by Brett Kavanaugh’s evil freaking twin. Kavanaugh’s presentation of his defense, riddled as it is with lies, should make you horrified that you needed Christine Blasey Ford to sacrifice herself to make you see this liar plain. The system failed to stop Kavanaugh before he got to this point.

For a lot of men, and Republican women, actually just believing Christine Blasey Ford is still a bridge too far. So people are going to Kavanaugh’s temperament. Like all of the red flags about Kavanaugh’s character, Kavanaugh’s temperament has been on display since the beginning, it’s just that his phalanx of defenders have refused to acknowledge what was in front of their faces. Here’s Wittes again:

The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing. I dealt with Kavanaugh during the Starr investigation, which I covered for the Washington Post editorial page and about which I wrote a book. I dealt with him when he was in the White House counsel’s office and working on judicial nominations and post–September 11 legal matters. Since his confirmation to the D.C. Circuit, he has been a significant voice on a raft of issues I work on. In all of our interactions, he has been a consummate professional.

The Brett Kavanaugh who showed up for his hearing was exactly the same Brett Kavanaugh who worked on the Starr investigation. If any of these elites could tell the truth about the Starr investigation, they’d have realized that nominating a veteran of that sordid affair was nominating a hyper-partisan who would not be an impartial jurist.

Even if you were willing to overlook that obvious black mark on Kavanaugh’s record, anybody seriously interested in whether Brett Kavanaugh had the impartiality required of Supreme Court Justice would have DEMANDED to see all of the documents from Kavanaugh’s time serving in Bush’s White House. What few have been released have already shown him as a partisan hack, which makes one wonder about what documents are still even now being held in secret by Republicans. Wittes was actually even on some of the documents that have been released. He probably knows as well as anybody that Kavanaugh was committed to Republican policies first, impartial judicial review second, but still he runs with this “I have never even caught a glimpse” line. If Wittes honestly never caught a “glimpse” of the partisan Kavanaugh, then he was being willfully blind and ignorant.

Everything wrong with Kavanaugh now was wrong with him two months ago. Nearly everything we know about Kavanaugh now, could have been known two months ago. It WAS known two months ago, by those who were paying attention.

Why did Kavanaugh even get this far before Wittes and others jumped ship? Wittes tells you:

I have no hostility to or particular fear of conservative jurisprudence. I have a long relationship with Kavanaugh, and I have always liked him.

Those two sentences explain everything:

* “I have no hostility to or particular fear of conservative jurisprudence.” In response to the near constant attacks on our national norms of decorum brought on by the Trump administration, conservatives have adopted a belief in the “hysterical left.” Conservatives cannot actually defend Donald Trump, or the literal Nazis who support him, so instead they attack those who react to Donald Trump. “Trump Derangement Syndrome,” they call it. It’s supposed to make the people who fight Donald Trump feel “radical” and the people who pick and choose which levels of white supremacy and predatory misogyny they are okay with as “rational.” Wittes is no Trump fan, but he does not “fear” conservative jurisprudence, because “fearing” something is irrational to him and the people he likes.

I do fear conservative jurisprudence, because I’m not a straight white man. Conservative jurisprudence is a direct threat to me and most of my friends. But because people like me fear conservative jurisprudence, people who should have known better discounted our concerns about Kavanaugh’s character as “mere” ideological butthurt.

What Wittes and others rolled into the Kavanaugh nomination with was exactly the kind of victimization of minorities and “others” that white guys do almost without thinking. They use people’s vulnerabilities and actual experiences of pain and suffering at the hands of the white supremacist patriarchy to disregard their voice and concerns and arguments. These people damage others, then use that damage as a reason to call them biased. It’s punching someone in the face and then saying “only people who have not been punched in the face can be truly objective about assault.”

It’s gross and we should not accept it from these Kavanaugh defenders, ever again.

* “I have a long relationship with Kavanaugh, and I have always liked him.” Of course, in the same breath where they decry the objectivity of others, Kavanaugh’s crew of elites pimped their manifest lack of objectivity as a positive. In a rational world, being “friends” with a nominee would make a person SHUT UP about the nominee’s objective qualifications. In this world, Wittes, and many others, used their personal and professional relationships with Kavanaugh as a reason for why they should be trusted to speak on his behalf.

As we’re seeing now, a lot of these people who claimed to “know” Brett Kavanaugh, didn’t know diddly. It now seems clear that if you never saw Brett Kavanaugh drunk, you have no idea of who you are talking about. Wittes, at least, is one of Kavanaugh’s few sober friends who has learned this. Most of Kavanaugh’s other professional contacts are continuing their defense of a guy based apparently on only the face he chose to show them.

Again, Wittes has taken a step most of the Kavanaugh defenders have not, and he should be respected for it. But what has he learned? What have any of them learned? What are any of these people going to do differently, so that Brett Kavanaugh can never happen again?

Or are they already committed to making the same mistakes again?

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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