When Brett Kavanaugh was discussed as a possible nominee to the Supreme Court, the popular refrain was that Mitch McConnell disfavored Kavanaugh due to his paper trail. Once called the “Forrest Gump of Republican politics” because of his role in several conservative legal events over the past 25 years, it was assumed that Kavanaugh’s prior involvement with hot button legal issues would be used against him. Well, Kavanaugh’s paper trail will indeed be used effectively against him, but not regarding his views on reproductive freedom or the role of the president. Rather, it will be his prior views regarding allegations of sexual misconduct which may derail his nomination.
As we all know, Kavanaugh will be questioned under oath before the senate judiciary committee regarding the allegations made by Dr. Christine Blasey Ford. When questioning him, Democrats may very well use Kavanaugh’s prior writings in the Clinton impeachment investigations to put him in a bind.
During the Starr investigation, Kavanaugh strongly asserted that perjury – regardless of the nature of the underlying testimony – warranted removal of the president from office. So during this week’s hearing, Kavanaugh will be forced to answer whether perjury constitutes adequate grounds to deny his confirmation. If he says “yes” (which he likely will), then he is giving democrats and swing republicans a justification to oppose his confirmation. If he says “no”, then his position on the Starr investigation comes back to bite him. Certainly, if perjury in a civil suit regarding an affair warrants removal of the president, then perjury during confirmation hearings, about attempted rape, absolutely warrants removal of a federal judge. Under Kavanaugh’s own Clinton-era logic, he should not even be a circuit court judge – let alone Supreme Court justice – if he perjures himself in the slightest here.
Next, Kavanaugh’s aggressive approach towards questioning President Clinton also will be used against him. During the Starr investigation, Kavanaugh issued a memo advocating for a no-punches-pulled approach towards questioning the president, even if that involved questions related to graphic sexual conduct. Especially related to graphic sexual conduct.
These are some examples of questions for President Clinton that Kavanaugh actually proposed:
“If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”
“If Monica Lewinsky says that on several occasions in the Oval Office area, you used your fingers to stimulate her vagina and bring her to orgasm, would she be lying?
“If Monica Lewinsky says that you had phone sex with her on approximately 15 occasions, would she be lying?”
“If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?”
“If Monica Lewinsky says that you masturbated into a trash can in your secretary’s office, would she be lying?”
Kavanaugh wrote to Starr, “I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship – unless before his questioning on Monday, he either (i) resigns or (ii) confesses perjury and issues a public apology to you… The idea of going easy on him at the questioning is thus abhorrent to me… Aren’t we failing to fulfill our duty to the American people if we willingly “conspire” with the President in an effort to conceal the true nature of his acts?”
This memo is…wild. For Kavanaugh to so ardently insist on asking these questions to the President of the United States must mean that no questions are off limits when it comes to misconduct of public officials, right? Right??
That is where Kavanaugh’s chickens will come home to roost. Democratic senators may very well read passages from that memo to him, stating that it is a senator’s duty to obtain the full set of facts regarding a SCOTUS nominee’s alleged misconduct. That duty, under Kavanaugh’s own logic, would require asking detailed, graphic questions about the allegations made.
Then come the actual questions. Questions like:
1. “If Dr. Ford said you groped her, would she be lying?”
2. “If Dr. Ford said you pinned her to the bed and tried to pull her clothes off, would she be lying?”
3. “If Dr. Ford said you covered her mouth when she attempted to scream, would she be lying?”
4. “If this event took place, would it be disqualifying?”
5. “When you were 17, was it common for you to go to parties in suburban Montgomery County, MD? Would you drive there? Did you own a car?”
6. How old were you when you first drank alcohol?”
7. How old were you when you first got blackout drunk?
8. “When you were 17 years old, how often would you drink?
9. “When you were 17, how much would you have to drink on weekends?”
10. “When you were 17, how often would you get blackout drunk?”
11. “When you were 17, had you had sex previously?”
12. “You were driving to these parties and then drinking; how would you get home if you were drunk?
13. “Have you ever driven under the influence of alcohol?”
14. “Are you sure the reason you don’t remember this incident isn’t because you were blackout drunk?”
If Kavanaugh feigns righteous indignation in response to these questions, he will appear hypocritical. If he answers “no” to most of the above questions, then he will have pretty clearly perjured himself, given his documented history. If he answers the questions affirmatively, then he is admitting that he was commonly blackout drunk, at parties, and thus we have no reason to trust his denial of the assault allegation.
So, at best, Kavanaugh will simply lose all credibility regarding the assault. At worst, Kavanaugh may perjur himself or be forced to admit to various alcohol-related criminal misconduct. True, underage drinking isn’t in and of itself a good reason to deny someone a seat on the supreme court 35 years later. But it does substantiate parts of Blasey Ford’s story and also undermine Kavanaugh’s ability to accurately recollect any such incident.
At that point, where are we? That he probably did assault her but didn’t lie about it because he was too drunk to remember? Is that a sufficient reason for GOP senators to push Kavanaugh through? It very well might be, but jeez. When I was a kid, SCOTUS nominees had to withdraw for smoking marijuana.
Now, I don’t know if publicly asking Kavanaugh the above 14 questions is a good look for the country. In fact, it will probably have a negative impact on public perception of the Senate, Supreme Court, and the judiciary. Rather, my point is that Brett Kavanaugh is uniquely incapable of credibly objecting to these graphic questions or this line of attack. In fact, he has invited these questions. And that is how his paper trail may ultimately prove to facilitate his undoing.
Update: At roughly the same time this article was posted, Ronan Farrow and Jane Mayer at the New Yorker published a story about a second sexual misconduct accusation against Brett Kavanaugh. It is unclear if Thursday’s hearing (or Kavanaugh’s nomination, for that matter) will proceed as scheduled.