On Sunday’s “60 Minutes,” Sen. Jeff Flake, the Republican dissident who forced the FBI investigation of Supreme Court nominee Brett Kavanaugh, was asked whether Kavanaugh’s nomination would fail if he were “shown to have lied to the committee.”
“Oh, yes,” Flake replied.
If the Arizona senator is serious about that, and if one more Republican agrees with him, Kavanaugh’s nomination is in very serious trouble.
One of the problems underlying the sordid, epic Kavanaugh battle is that there is no universally accepted standard for what disqualifies a nominee from serving on the highest court.
A would-be justice must be professionally qualified; Kavanaugh meets that test. He or she must have a “judicial temperament,” and Kavanaugh appeared to meet that test, too, at least until he blew his stack at the Democrats, although plenty of senators consider his defiance a plus.
A justice should be innocent of charges of sexual assault — but must those charges be proven beyond a reasonable doubt? That’s not clear. And while youthful misconduct might be forgiven, there’s also no clear standard for what kind of teenage misbehavior qualifies for clemency.
But the standard Flake instinctively embraced — was the nominee honest in his testimony? — may turn out to be the only test that the Senate and the public agree on.
Kavanaugh’s testimony is not ancient history; it happened last week. It’s at the core of the confirmation process. And it’s where the judge, in his anger, appears to have put himself in trouble. In his account of his high school and college years, he evaded, exaggerated, misled, shaded facts. He lied.
Kavanaugh repeatedly said four potential witnesses to the sexual assault charged by Christine Blasey Ford had “refuted” her account; they did no such thing. (He’s a judge; he knows that “refute” means to prove that an assertion is false.) He initially portrayed his youth as dominated by homework, sports, churchgoing and service projects; only later did raw tales of Beach Week and barroom brawls emerge.
He assured senators that when he was young, it was legal for high school seniors to drink beer. But by his senior year, that wasn’t true. Asked about yearbook boasts of promiscuity (“Renate Alumnius”) and drunkenness (“100 Kegs Club”), he gave explanations so outlandish that you might laugh if your son offered them. (And then you’d ground him.)
The sum of all these misleading parts was an indelible picture of a not-fully-honest witness. Democratic Sen. Richard Blumenthal of Connecticut reminded him of a legal adage: “False in one thing, false in all.” As former FBI Director James B. Comey put it in a more homespun version: “Little lies point to bigger lies.”
Republicans have sputtered that the Democrats are trying to hang a distinguished judge for drinking too much beer and being insensitive to young women when he was young. Besides, they say, Kavanaugh was angry. But anger doesn’t excuse mendacity.
The Senate Republican leader, Mitch McConnell, says the Democrats are “moving the goal posts.” But does asking for honesty really move the goal posts?
What concerns McConnell more than lying, it seems, is that the FBI investigation will turn up just enough evidence to derail the nomination — or at least justify another week or two of inquiries.
He’s right to be worried. If the FBI investigation turns up evidence that confirms the accounts of Ford or Deborah Ramirez — accounts Kavanaugh has denounced as wholly untrue — he’s gone. By the same token, if the FBI finds that neither witness or account is credible, he’ll probably get his seat on the court.
But McConnell should reconsider his priorities. If the FBI report leaves the evidence on those charges inconclusive, but adds to what we are already learning — that the judge’s drinking history was more disastrous than he acknowledged — then Jeff Flake and other Republicans may continue to dissent.
Did Kavanaugh assault Christine Blasey Ford? The Senate and the public will almost surely be stymied by an epistemological problem: It will be impossible to know what happened. As believable as Ford was, her testimony has too many gaps. In Flake's words, there will always be doubt.
But on the question of Kavanaugh’s truthfulness? There is much less doubt.
That leaves the Senate with a final question. Will a nominee for the Supreme Court be held to a lower standard of honesty than an ordinary job candidate? That one shouldn’t be hard to answer.