Brett M. Kavanaugh will still probably be confirmed to the Supreme Court. But it’s becoming increasingly clear that he damaged himself with last week’s angry appearance in front of the Senate Judiciary Committee.
Appearing after Christine Blasey Ford, Kavanaugh traded his previously subdued, soft-spoken denials for something else entirely: a 45-minute conspiratorial broadside against Democrats — a speech he said only one other person had reviewed. He then appeared to have a difficult time calming his nerves when senators began questioning him.
More than one pundit remarked at the time that Kavanaugh’s anger was probably calculated to reinforce his innocence and/or rally the conservative base. That may have been the aim, but the downside of that approach is becoming clear.
While Sen. Jeff Flake (R-Ariz.) forced a delay specifically because of the allegations, he now says he is also quite concerned about the temperament Kavanaugh displayed in that hearing. Calling Kavanaugh’s display “sharp and partisan,” Flake said Tuesday, “We can’t have that on the court."
Neither of these concerns appeared in Flake’s initial statement Friday announcing his support for Kavanaugh. Given a few days to process it, that appears to have entered his calculus in a very significant way — and could loom large for a senator fond of highflying rhetoric about the importance of institutions.
And Flake isn’t the only erstwhile Kavanaugh supporter balking at his display. Two of his Yale Law School classmates who previously expressed support withdrew it Tuesday. In doing so, they emphasized that their decision wasn’t about Ford’s allegation, but rather about Kavanaugh’s testimony. “In our view that testimony was partisan, and not judicious, and inconsistent with what we expect from a Justice of the Supreme Court, particularly when dealing with a coequal branch of government,” Michael J. Proctor and Mark Osler wrote.
(Three former clerks of Kavanaugh’s wrote to the committee Tuesday qualifying their previously expressed support. Their letter was about the investigation rather than Kavanaugh’s testimony, but the move is striking from Kavanaugh’s own former law clerks. Clerks have substantial career incentives to support the judges who hire them.)
Perhaps the most symbolic pullback, though, came from conservative legal scholar Benjamin Wittes. Although he doesn’t have a vote, as Flake does, he does count Kavanaugh as a longtime ally and has defended him. Yet he said Tuesday that he no longer thinks Kavanaugh should be confirmed. And while he said the allegations are troubling, he said Kavanaugh’s testimony left him “nonviable” to serve on the Supreme Court:
His opening statement was an unprecedentedly partisan outburst of emotion from a would-be justice. I do not begrudge him the emotion, even the anger. He has been through a kind of hell that would leave any person gasping for air. But I cannot condone the partisanship—which was raw, undisguised, naked, and conspiratorial—from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.
What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would after that performance consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence? Quite apart from the merits of Ford’s allegations against him, Kavanaugh’s display on Thursday — if I were a senator voting on confirmation —would preclude my support.
And then there is the less direct impact of Kavanaugh’s anger: The claims he made. It’s one thing to go into that hearing expecting there will be no FBI investigation and that your confirmation will follow within a few days; it’s another to let emotion get the better of you when making claims that will be dissected for more than a week.
Kavanaugh made claims throughout his confirmation hearings that seemed unforthcoming, at best. But on Thursday he lodged multiple claims that didn’t pass the smell test for some of his high school friends and classmates, particularly with regard to what he wrote in his yearbook. As I wrote Monday, the veracity of claims involving yearbook entries from 3½ decades ago sound trivial in the grand scheme of things, but they importantly speak to Kavanaugh’s credibility — and they’re rather easy to disprove. The claim that “Renate Alumnius” was a term of “affection” for a female classmate was particularly difficult to believe — even just given Kavanaugh’s own lawyer’s previous explanation — and has left plenty wondering why Kavanaugh would say such things.
Would Kavanaugh have made the same claims if he wasn’t worked up and angry? Possibly. Would he still be in just as much trouble? Maybe. It’s impossible to rerun all these scenarios if Kavanaugh had offered a more staid, lower-volume defense. He also might still wind up being just fine by the end of the week, when a final vote is due.
But his performance Thursday sure seems to have had some unintended effects. And the growing questions about his claims and concerns about his temperament — even from those inclined to support him — trace back directly to the decision he made to come out guns blazing and deliver a highly politicized speech.
Kavanaugh’s supporters will say he was entitled to that, given the circumstances and given Democrats' conduct. But his performance was highly unusual for a would-be Supreme Court justice, and it contradicted what even Kavanaugh himself has previously said a justice should be. If it only alienated Flake, it’s safe to call it a mistake.