Kavanaugh Must Consider Withdrawing: No More Liars on the High Court, Please!

Updated:

Below is the statement I made (read) to the Senate Judiciary Committee, on Friday, September 7, 2018, when I was invited to testify at the confirmation hearings of Judge Brett Kavanaugh to be an associate justice on the U.S. Supreme Court. I distilled the statement from the 3,000 words of submitted testimony, because witnesses were given five minutes for opening statements. I read the selected summary material in 4:54 minutes—I noticed I had six seconds on the timer by my microphone when I finished, before the green light turned red.

I prepared my statement (which had to be submitted 48 hours in advance of appearing) before it had become increasingly clear that Kavanaugh may have lied during his earlier confirmation in 2004 and 2006, some of which he repeated under oath at his 2018 confirmation hearings. In addition, he has now denied (not yet under oath) the allegations of sexual assault (attempted rape) made by Professor Christine Blasey Ford.

When preparing my testimony, I kept thinking that Republicans are suppressing far too many documents about Kavanaugh’s years at the Bush White House. It was long widely rumored in Republican circles that before Kavanaugh went on the bench he was a GOP behind-the-scenes operator who would go to any length to get chosen Republicans confirmed by the Senate, so I suspected he was being less than candid. It struck me that if he was clean and had nothing to hide—unlike Rehnquist who lied twice in confirmation hearings and Clarence Thomas who appears to have lied in his High Court confirmation as well—Kavanaugh should be demanding all his records be released.

Based on the evidence that is surfacing, it appears Kavanaugh is not clean. Rather that he is dissembling not only about his days at the Bush White House, but about sexual assault. (So far, only one woman has come forward. But such behavior is seldom an isolated incident. Nonetheless, as the #MeToo Movement has revealed, it becomes a life-changing event to come forward and expose the actions of powerful men. Just ask Anita Hill, or the women who revealed Bill Cosby’s predatory behavior. And, of course, the women who revealed President Trump’s predatory sexual behavior. Today, it is widely and well understood why women only reluctantly come forward as Christine Blasey Ford has done, and when they do, they must be given a presumption of truthfulness. It strikes me that Judge Kavanaugh should do as Professor Ford has done and take a polygraph test for openers.

My opening statement focused on the matter of let’s-not-put-another-liar-on the High Court. I did not have time to include the material from my submitted statement, which I obtained from co-columnist Michael Dorf—a fascinating study about the impact of executive branch experience on Republican-appointed justices. Several people who read my submitted statement found Michael’s material as fascinating as I did, so I have added it to my less-than-five-minute opener. Allow me to close with a few thoughts on Judge Kavanaugh.


Mr. Chairman, Ranking Member, and Members of the Committee, thank you for the invitation to appear. In my allotted time I would like to make a few points from the statement I have submitted for the record.

I represent no organization or group or cause. I am not a partisan. My only interest is in good government.

I have made two over-riding points in my submitted statement.

First, if Judge Kavanaugh joins the High Court, it will be the most presidential powers friendly Supreme Court of the modern era. Republicans and conservatives only a few year ago fought the expansion of presidential and executive powers. That is no longer true.

Judge Kavanaugh has a very broad view of presidential powers. For example, he would have Congress immunize sitting presidents from both civil and criminal liability. Under Judge Kavanaugh’s recommendation, even if a president shot someone in cold blood on 5th Avenue, that president could not be prosecuted while in office. Also, it is not clear to me if Judge Kavanaugh does or does not believe U.S. v Nixon (the 8-0 holding that ended Nixon’s presidency, forcing him to provide prosecutors incriminating secretly recorded conversations) was correctly decided.

My second general point is a very important process matter. Ranking Member Dianne Feinstein stated on the morning of September 4, 2018—just before these hearings opened—that after participating in nine Supreme Court confirmations, it had never been so difficult to get access to the background documents relating to a nominee as in these current proceedings. Unsuccessfully, the minority sought to postpone these hearings until all the requested documents were provided. The chair, however, declined to consider a motion that would make such a review possible.

This committee is deeply involved in the final phase of vetting Supreme Court nominees. Based on personal experience with the confirmation of William Rehnquist, and studying the confirmation of Clarence Thomas, it is clear there was an across-the-board failure to fully vet these nominees, and it haunted their careers on the Court, it hurt the Court, and the American people. Because of the withholding of documents, Judge Kavanaugh may be traveling the path of Rehnquist and Thomas.

When writing The Rehnquist Choice, I explained how Rehnquist was selected by President Nixon for one of the two openings on the Court in 1971. I also reported my discovering that Rehnquist had dissembled during his confirmation proceeding to become an associate justice. Notwithstanding the fact he made false statements, Rehnquist was confirmed. When President Ronald Reagan nominated Rehnquist in 1986 for Chief Justice, again he was not vetted, and he was confronted not only with earlier false statements, but material that resulted in new false statements. All scholars and court historians find clear and convincing evidence that Rehnquist lied in his two confirmation proceedings. This hurt him and the Court.

Because Justice Clarence Thomas was not fully vetted, his career on the Court has been under a cloud. Thomas’s truthfulness vis-à-vis Professor Anita Hill’s claims of sexual harassment have never been fully resolved. Nor has the controversy ended. A definitive study of this controversy was undertaken in 1994 by journalists Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas (Graymalkin Media, 2017 edition). Mayer and Abramson found that the preponderance of evidence supported Anita Hill’s claims. This controversy has received renewed attention with the #MeToo Movement, which is growing stronger and it is not going to disappear. In fact, Justice Thomas’s truthfulness is an issue in this year’s mid-term election. A Democratic congressional candidate in Massachusetts has made the impeachment of Justice Thomas for his false statements during his confirmation one of the planks of her campaign.

In closing, Judge Kavanaugh’s nomination has raised issues about his truthfulness during his confirmation hearings to the DC Circuit Court of Appeals. His answers to this committee have not resolved the issue. Frankly, I am surprised that Judge Kavanaugh is not demanding every document he has ever handled be reviewed by the committee, unless there are documents he wants hidden. (Emphasis in original.) Thank you, I am available to answer your questions.


After testifying about the extensive executive branch experience of Brett Kavanaugh, as well as the top-heavy executive branch experiences of the other Republican justices already on the Court, including John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch, I used Michael Dorf’s work to make my point in my submitted statement:

Justices with extensive executive experience are important for another reason. Republican appointed justices—and apparently only Republican High Court appointees—with such executive experience do not grow more moderate on the Court, rather just the opposite. Cornell Law Professor Michael Dorf, a former US Supreme Court law clerk, and a serious scholar of the Court, discovered that executive experience is predictive of performance on the Court. Professor Dorf, originally writing in 2007 for the Harvard Law & Policy Review, reported: “For nearly four decades, one single factor has proven an especially reliable predictor of whether a Republican nominee will be a steadfast conservative or evolve into a moderate or liberal: experience in the executive branch of the federal government.” Dorf found that between 1969 and 2007, the Senate had confirmed twelve Supreme Court nominees from Republican presidents. The six justices with executive experience remained solid conservatives (Burger, Rehnquist, Scalia, Thomas, Roberts, and Alito); while the six without such backgrounds became moderates and even liberal (Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter). In short, it is more likely than not that if Judge Kavanaugh is confirmed, he will remain every bit as conservative as he is today, as will his brethren with executive experience.


If Republicans jam Kavanaugh through the Senate to a lifetime appointment on the Supreme Court, not only will we have a radically conservative Court, we will have two justices under a cloud for they have lied to get their seats: Clarence Thomas and Brett Kavanaugh. If anyone thinks this does not have an impact on the Court, and an even greater impact on the justices, they are not facing reality. I had a conversation with Bill Rehnquist after he lied to become an associate justice. He knew that I knew he had lied, and he was troubled by what he had done. I did not talk about it, or write about it, until after he repeated the lies and added new lies to become Chief Justice, when academics began discussing it and then writing about it. I will not repeat here the material I laid out in The Rehnquist Choice (Free Press, 2001). Rehnquist carried his lies to his grave, but I believe they changed his personality. Similarly, as Jane Mayer and Jill Abramson, in their 1994 study of Thomas’s confirmation hearings, the preponderance of evidence shows that Anita Hill was truthful, but Thomas was not. Today, we have a very bitter man seated on the highest Court, a man who has never recovered from his confirmation hearings.

Judge Kavanaugh’s denials of lying under oath in his earlier 2004 and 2006 confirmation proceedings, and the fact that he must now lie under oath again to get confirmed to the Supreme Court, have disqualified him for the job. He should be man enough to call for all his documents to be made public, call for an FBI investigation of his conduct vis-à-vis Professor Ford, or to admit his errors, and step down. If this mess is not cleaned up by the Senate before confirmation, Kavanaugh will be just as it was with Rehnquist, and is with Thomas. His misconduct will never be forgotten or forgiven unless these charges are satisfactorily addressed, and if they are not it will take the conscience of a psychopath to set such misconduct aside to become all that one can become in this vital government position.  

Sadly, it appears the male-dominated and Republican-controlled Senate Judiciary Committee has learned nothing since the Anita Hill and Clarence Thomas controversy, notwithstanding the arrival of the #MeToo Movement. Hopefully, women of all political persuasions will let the US Senate know on November 6, 2018, that times have changed, even if some of the good ol’ boys have forgotten. This is not 1991, or 1971, rather today women are co-equal partners in governing this country. Let us hope even more women will arrive in Congress after the November 6 elections!