Would Brett Kavanaugh’s evasive testimony be allowed in his own courtroom?

‘He came across as an instrumentalist who says things he thinks he needs to say to accomplish a goal. I don’t think yielding to the truth is always his repertoire’

Deanna Paul
Saturday 29 September 2018 14:34 BST
Brett Kavanaugh: the most important moments in Donald Trump Supreme Court nominee's hearing

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Louise Thomas

Louise Thomas


Whether inside a federal courtroom or an Ivy League classroom, US Supreme Court nominee Brett Kavanaugh assumes multiple roles. They all demand respect; in each, he sets the rules.

Yet the Yale-educated Harvard law professor, who has occupied the federal bench for more than 10 years, seemed to forget the basics of legal procedure and courtroom decorum during his Thursday testimony about an allegation of sexual assault from his teenage years.

Mr Kavanaugh’s performance in front of the Senate Judiciary Committee was histrionic. He was frequently hostile and overly emotional, behaving in a manner he would likely not tolerate in his own courtroom. He also offered the committee evidence that, in a court of law, he would know to be inadmissible.

His behaviour could be consistent with two scenarios, according to former US attorney and Georgetown law professor Paul Butler: someone who is wrongly being prosecuted, or someone afraid of a truth-seeking process.

The difference, obviously, is that Kavanaugh is a judge on a high federal court, a position that requires a nonpartisan temperament and respect for the judicial confirmation process.

“He feels defiant,” Mr Butler told The Washington Post after the highly charged hearing. “If the allegations are not true, then his career, his family, and his reputation have been irrevocably damaged. Anyone in his situation – that was not guilty – would feel outraged.”

But how you look at Kavanaugh’s evasiveness during the Senate Judiciary hearing will depend on whom you believe.

The committee has a constitutional responsibility to “advise and consent,” and when allegations of this nature are introduced, it must respond. Mr Kavanaugh, familiar with the process, knows that.

The one-day hearing, in which each senator had five minutes to speak, spout or enquire, was a passive response. But even that appeared to be too much for the judge to tolerate. “You have replaced advice and consent with search and destroy,” he barked at the Democrats on the panel during his opening remarks.

That defiance seemed to be a device to deflect substantive answers during the hearing. Mr Kavanaugh interrupted and talked over senators and sometimes asked them questions. He also sat in stone-faced silence. He acted in a manner that might compel a judge to hold a witness in contempt of court.

An exemplary moment came when Democratic senator from Minnesota Amy Klobuchar, questioned Mr Kavanaugh about excessive drinking, asking if he had ever “blacked out” after consuming alcohol.

KAVANAUGH: “Have you?”

KLOBUCHAR: “Could you answer the question, judge? . . . Is that your answer?”

KAVANAUGH: “Yeah, and I’m curious if you have.”

KLOBUCHAR: “I have no drinking problem, judge.”

KAVANAUGH: “Yeah, nor do I.”

From the bench, Mr Kavanaugh surely would have shut down the dialogue immediately, making clear who was running the show.

The hearing was called to look into whether a then-17-year-old Mr Kavanaugh sexually assaulted a 15-year-old girl. “That’s extremely serious. The fact that he’s up for a Supreme Court position means that his conduct is relevant, and we need to find out what happened,” said Butler.

Yet Mr Kavanaugh had little tolerance for the process.

“As a federal judge, you always want the best evidence, don’t you?” the Democratic senator from Connecticut Richard Blumenthal asked Mr Kavanaugh at the hearing.

As a presiding justice, Mr Kavanaugh’s answer must be yes. Yet as the accused, that’s not what he said. Mr Kavanaugh demurred when asked whether he would welcome an FBI investigation into the allegation, saying, “I welcome whatever the committee wants to do.”

He decried the suggestion that he take a polygraph, saying that “they’re not admissible in federal court because they’re not reliable” – even though he has in the past supported polygraphs as a valuable government tool.

He also offered affidavits in lieu of witness testimony, referring to them on at least four occasions. Yet he failed to mention, however, that the documents would also not be admissible in court. Instead, as a presiding judge, Mr Kavanaugh would have ordered the individuals to appear in court and testify under oath.

His testimony was at times halting and his tears heartbreaking. Some of his points were valid and helpful: Mr Kavanaugh does have a stellar record advocating for female attorneys and selecting law clerks from diverse backgrounds – 21 of his 25 clerks have been women, according to the National Law Journal.

But he came across as an “instrumentalist,” who said “things he thinks he needs to say to accomplish a goal,” said Butler. “I don’t think yielding to the truth is always his repertoire.”

Perhaps Mr Kavanaugh felt the senators were his peers, or that he was on par and in their playing field.

“That’s the thing: he acted like a defendant,” Butler said. “He’s in another branch of the government. Everyone has their own role under the Constitution, and today the role of the senators was to question him as part of the advise-and-consent process.”

Ultimately, Mr Butler said, Mr Kavanaugh seemed resentful that the senators were doing their job, revealing a partisan temperament unbecoming of a justice on the nation’s highest court.

Washington Post

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