To be clear: A Supreme Court nominee should be judged on his legal acumen and judicial temperament, as displayed in the conduct of his adult life and the content of his professional career. So it is understandable that Kavanaugh and his supporters have scoffed at the recent focus on the judge’s adolescent behavior, and behavior as an adolescent. For them, it represents the last-ditch lunging of an opposition desperate for any grounds, however inconsequential, to defeat the nominee.
And yet, as the Senate and the country grapple with the discomfort of assessing decades-old allegations against Kavanaugh, his current conduct and present-day statements are becoming a legitimate, indeed unavoidable, element of the confirmation debate.
First, to the extent that Kavanaugh has misrepresented, dissembled or been otherwise dishonest in his testimony and other public statements, that bears on the central question of believability. In a he-said/she-said situation, it is relevant if he has said numerous other things that turn out to be untrue.
Second, even leaving aside how it might help us decide what to make of the sexual assault allegations, the matter of Kavanaugh’s honesty is an issue in and of itself. Along with the linked concern about the angry eruption in which he sounded less like a judge than an aggrieved partisan, it goes to the core of Kavanaugh’s fitness. On this score, it is not helpful to Kavanaugh’s case that he arrived for a second turn at the witness table with preexisting questions about his truthfulness.
Which is why a senator who shouldn’t care less about what the meaning of “boof” is or whether “Devil’s Triangle” refers to a drinking game or a sexual act might well be offended that Kavanaugh appeared less than forthcoming in his answers.
Or by Kavanaugh’s sworn testimony that the yearbook phrase “Renate Alumnius” was “clumsily used to show affection, to show she was one of us,” but was misrepresented by a dirty-minded “media circus.” This argument doesn’t just insult senators’ intelligence — it raises fundamental questions of trustworthiness, when Kavanaugh could just as easily have said something along the lines of “It was dumb and offensive, and I am deeply sorry.”
The conflicting depictions of Kavanaugh’s high school and college drinking behavior are, if anything, more disturbing. The drinking itself is immaterial. No one should care if young Kavanaugh was a stumbling or even belligerent drunk so long as there is no evidence that adult Kavanaugh suffers from a drinking problem.
But if Kavanaugh at Georgetown Prep or Yale drank not just to excess but to the point of abusiveness or forgetting, that lends some credence to the damning accounts of Christine Blasey Ford and Deborah Ramirez. Kavanaugh’s evident desire to play down his drinking — “Sometimes I had too many beers,” he told the Senate Judiciary Committee — may be natural, but it is not exactly ennobling.
Candor would have served the nominee better than aggression, of the how-much-did-you-drink-Senator variety. That has become even more clear with the emergence of Yale classmates’ depictions of Kavanaugh as “a sloppy drunk” with “an angry streak that comes out,” and with the revelation of a bar fight that allegedly started with Kavanaugh throwing a drink in a patron’s face and ended with the police being called.
It is overwrought partisanship to talk about Kavanaugh’s statements in the language of perjury, a crime involving technical elements of materiality and mens rea, the intentional telling of an untruth. No one is going to prosecute Kavanaugh over disputed recollections, no less lawyerly evasions.
Some senators, already determined to see Kavanaugh confirmed, will dismiss all of this as mere partisan distraction. For others, it will serve as confirmation of — or another excuse for — that of which they are already convinced: that Kavanaugh should be defeated.
But for the undecided, anguished few, the choice is — or should be — getting harder, not easier. Kavanaugh’s credibility and integrity are now fairly at issue. The nominee himself put them there and in doing so made his situation far more precarious than it needed to be.