Brett Kavanaugh lied.
The best estimate is that he lied five times: about whether he received documents while he worked at the White House that had been purloined from Senate Democratic staff; about his knowledge of the Bush administration’s warrantless wiretapping program; about whether he was involved in formulating any aspects of torture policy; and about his role in the nomination of two controversial Bush-era judicial appointees.
On the first matter, of the documents stolen by Republican operative Manuel Miranda from the Senate Judiciary Committee, he lied not only last week, but also back in the 2000s when he was first nominated to the federal bench and Democratic senators asked him about it then. If you missed this piece in Slate last week by Lisa Graves, who was a Democratic Senate staffer at the time, go back and read it. He lied then about whether he had seen such documents. Last week, asked whether he suspected the documents were pilfered, he said no. As Graves notes, these emails were about very sensitive matters; sometimes Senate staffers from the two parties do share their research, but not on the matters in question, as Kavanaugh would surely have known.
Perjury? I don’t know. The bar for perjury is high. But by any common-sense definition of the word, Kavanaugh lied. And lied a lot. Senator Pat Leahy, usually a man of rhetorical restraint, tweeted: "Untruthful testimony, under oath and on the record."
What is to be done?
Graves writes that he deserves to be impeached (from his current position on the D.C. Circuit). Neera Tanden of the Center for American Progress said over the weekend the confirmation process should be halted.
I would agree. But of course Mitch McConnell and Charles Grassley are unlikely to agree, and their opinions matter more than ours. Sometime soon, the Senate will presumably wave him through, which will mean that two of the nine justices of the Supreme Court will have gotten to the nation’s highest court despite having lied during their confirmation hearings.
The other, of course, was Clarence Thomas, in 1991. I realize this is not settled history, but if you actually read the evidence, you have to be either an idiot or a fervent ideological ally of Thomas’ to think he was telling the truth. He said, repeatedly, and under oath, that he never discussed pornography or his sexual prowess with Anita Hill.
Jill Abramson and Jane Mayer long ago did the reporting that made Thomas’ denials almost impossible to believe. As Abramson wrote more recently, there were five other women able to corroborate Hill, who’d had similar experiences with Thomas, and all but one were willing to come forward if called. (The Democrats, and specifically Joe Biden, however, did not call them.)
Now it’s true that essentially every Court nominee, conservative and liberal, says misleading things about his or her ideology. Everybody knew that Samuel Alito was going to be against Roe v. Wade and Ruth Bader Ginsburg was going to be for it, despite what they may have said at hearing time. That’s a given. But that’s not what we’re talking about here.
This is about lying about their past, their work history, their prior public service. As far as we know, only Kavanaugh and Thomas appear to have lied about that.
Is it just a coincidence that both of these liars are severe right-wingers? After all, liberals lie, too. And liberal men sexually harass women, and I’m sure that over the years a Democratic White House operative or two (or 20) has read material stolen from the other party. So on one level, sure, call it a coincidence.
But looked at another way, it’s not a coincidence at all. And it's not about these men's characters. It's about the goals and methods of the party that advanced them.
With respect to judicial fights, the Republican Party is intent on accomplishing two goals. The first is stacking the Court—actually all federal courts—with hard-right originalists. The second is getting them on the bench in as belligerent and aggressive a way as possible.
As I wrote three weeks ago about the Merrick Garland scandal, the Republicans could easily have followed procedure by giving Garland a hearing and voting him down. But they didn’t. They stiff-armed him, President Obama, and the country. Why? Because they could. To show the Democrats that they no longer played by the regular rules.
I would argue that when you put these two factors together, you get judges who are more likely to lie at their hearings. A Democratic president probably would have withdrawn a Clarence Thomas equivalent after the controversy arose; after all, there are plenty of other judges to choose from who probably didn’t put a piece of their pubic hair on a Coke can.
This was clearly the case in 1991, too; George H.W. Bush could have withdrawn Thomas. But Republicans had to win, had to defeat the evil liberals. (It’s true that Ronald Reagan withdrew Douglas Ginsburg in 1987 after allegations arose that he’d smoked pot, but the pressure on that came not from Democrats and liberals but right-wing moralizers like Blackjack Bill Bennett.)
Also, I think a Democratic president would never have nominated a Brett Kavanaugh equivalent in the first place. Kavanaugh’s history was presumably well known to the White House. Not to Donald Trump, obviously, but certainly to the people in the Office of Legal Counsel handling the nomination.
They would have known that he was under suspicion of having lied in 2004. They would have known that his years in the Bush White House would have left a lengthy and quite possibly incriminating paper trail. Democrats are more cautious about these kinds of things, and Republicans could have been, too. The Trump administration had loads of people to choose from who weren’t involved in making torture policy and didn’t read pilfered papers and then mislead the Senate about it under oath 14 years ago.
But they said fuck it. This is our man, and to boot, we’re going to short-circuit the process, hold back documents, let Steve Bannon’s lawyer decide what the Democrats do and don’t get to see, and force a vote before the first Monday in October so that this hard-right ideologue and under-oath liar can take his seat before the next session starts.
There’s a lot about this process that is broken, and yes, the Democrats have contributed to the breakdown, I wouldn’t dispute that for a second. But the fact remains: the only two nominees in recent history who’ve lied are Republicans.
You can call it coincidence if you like. But I remember the words of my late colleague Wayne Barrett. Wayne was often accused by his critics of being a conspiracy theorist. “I don’t know, Tomasky,” he said to me one day. “For some of these people, everything that happens is just a coincidence. I’m not a conspiracy theorist. They’re coincidence theorists.” Wayne, my friend, they’re still around.