The Kavanaugh Hearing: What Were The Republicans Thinking?

Last week’s confirmation hearing of Brett Kavanaugh took an interesting turn when Republicans chose not to question Dr. Christine Blasey Ford, the woman who said Kavanaugh molested her in high school. Rather, they left that dirty work to Rachel Mitchell, a veteran sex-crimes prosecutor from Phoenix, Arizona.  But like the saying goes, don’t bring a knife to a gun fight. The questioning, if they wanted to do it seriously, required a gun, not a knife.  It was a duel — his word against hers. And as every defense attorney knows, if you want to cross-examine a witness well, you bring in a defense attorney, not a prosecutor.

Of the many thing prosecutors do well (putting together a case, gathering evidence, etc.) — cross-examination is generally not one of them. They don’t often get the chance.  Most people they prosecute don’t end up going to trial.  They plead guilty.  Of the few cases that do go to trial, there’s often no cross-examination because defense counsel doesn’t put on a case.  Our job is poke holes in the prosecutor’s evidence and challenge the credibility of witnesses, not theirs.

Did Republicans understand that prosecutors just aren’t as skilled in cross-examination as defense attorneys, or did they purposely choose a lawyer weaker in cross-examination skills to save face? Had Dr. Ford been raked over the coals and withstood it, she’d not only look better, but would make Republicans look more foolish for calling her a liar.

The fact is, no one came even close to discrediting Dr. Ford’s testimony.  She didn’t remember what was plausible not to remember, and she did remember what someone in that situation would 100 percent be sure of — the person who did it.

People questioned why didn’t she tell her parents the night of? I didn’t tell my parents every time I got caught in a bad situation at a house party.

Why wasn’t it reported to police?  In those boys-will-be-boys times, maybe she thought it wasn’t worth the embarrassment to either herself or the men involved. As she put it during her testimony, “I was too afraid and ashamed to tell anyone these details.”  But now that Kavanaugh is being considered for one of the most powerful jobs on earth, she called it her “civic duty” to speak up. Totally plausible.

How come she didn’t reveal this when Kavanaugh was appointed to the federal bench?  Because she probably didn’t know. Those appointments are not general knowledge until after the appointment is made and announced. (Some of my colleagues have been appointed federal judges, and I had no idea they’d even been tapped till after they’d been sworn in.)

We don’t know for sure what happened so long ago during a drunken house party, and there may never be enough evidence to convict Kavanaugh of a crime.  But he doesn’t stand accused of one.  Because of that, the burden of proof is not beyond a reasonable doubt, but something less tangible — a feeling, a sense.  Is this the kind of man we want appointed to the Supreme Court for life?  Does he have the temperament, the character, the humility?

Watching his address to the committee following Dr. Ford’s testimony, my resounding answer is no.

The more I watched him extol the virtues of his high school athleticism, commitment to god, and nose-to-the-grindstone seriousness at school, the more I didn’t believe him. Those were just the kinds of guys who felt privileged enough to do whatever they wanted to a woman behind closed doors. As his outrage grew — how dare he be challenged by a woman with a mere, uncorroborated allegation — the more I thought, here is a judge swearing to tell the truth and actually lying.

I don’t care so much about how he spent his high school years, but I do care about someone lying or diminishing truths when his job is to uphold the law. The innocent explanation of the “devil’s triangle,” not meaning two-on-one sex, but a coin game. The referral to being a “Renate Alumnius,” not a notch in his belt for having slept with Renate, but a mere tribute to a fine friend.

Beach week is a rite of passage.  A week of unmitigated partying and promiscuity. Because Kavanaugh went doesn’t mean he’s debauched, but give us more credit than believing the yearbook entries referring to ralphing and boofing refer to more than his poor digestion after eating spaghetti with ketchup, or having flatulence.

As Shakespeare wrote in Hamlet, the lady (in this case “the man”) doth protest too much, methinks.

With only one week to look into this allegation further, it’s doubtful the FBI will come up with anything akin to proof that Kavanaugh is lying.  But that’s not necessary.

What we saw on full display at the hearings was the character of a man — indignant, angry, outraged, entitled — who now also has a chip on his shoulder against the “frenzy on the left” as he called it.  Proposed neutrality as a judge is out the window.

Guess what though, judge, it’s not all about you.  It’s about making sure the person who gets a life-time seat on the Supreme Court is not a political operative.  He must be the right person, temperamentally. He should be willing and even enthusiastic about letting the vetting process work its way through to whatever end it finds just — even if that means challenging the candidate personally.

As a person charged with upholding the value of due process and the law, Judge Kavanaugh should know and respect that.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.