What Kavanaugh Could Have Said, But Didn’t: “I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment”

Updated:

I offer here the text of a letter that current Supreme Court nominee Brett Kavanaugh could have decided to write in response to the recent allegations that he sexually assaulted and attempted to rape a fifteen-year-old girl when he was a seventeen-year-old high school student.


To the President, Members of the Senate, and the People of the United States of America,

It has been my great honor to be nominated to join the United States Supreme Court as an Associate Justice. I readily confess that my entire life and career have been built with this very possibility firmly in mind, even though the likelihood of any individual ever being selected for this esteemed position is slim. Despite my hopes to one day join the Court, however, if this honor had never come my way, I would still have been able to call my career of service to the American public a joy and a success.

Only a few days ago, people were telling me that I would soon be confirmed by the US Senate. Then, seemingly out of nowhere, a person has come forward who says that I did something truly horrible. She claims that I assaulted her sexually and attempted to rape her while I was drunk at a party I attended while I was in high school. She says that she feared for her life.

Faced with this disturbing accusation, I had a choice. I could have issued a categorical denial such as this: “This is a completely false allegation. I have never done anything like what the accuser describes—to her or to anyone.” [Author’s note: This is in fact what Kavanaugh said.] And maybe I could have soldiered on after making such a statement and still won confirmation to my dream job.

But that would have been wrong—not merely wrong from the standpoint of morality, but simply wrong as a statement of what I can know to be (or not to be) the facts. The truth is, as I have told audiences in the past, I do have a history of excessive drinking. To be clear, “excessive drinking” is not necessarily “problem drinking” and can fall well short of alcoholism. But excessive drinking is, to belabor the point, excessive. And it can lead to bad actions and lost memories.

Because of that, I honestly cannot deny doing what I am accused of doing, because I do not remember everything that I have done when I was drinking. No person—and I say this not to shirk blame to others or to reduce my own culpability but simply to state a fact—no person who has ever drunk to excess can say for sure everything that he did while intoxicated.

And that horrifies me. I always thought of my drinking days as fun times with no reason for regrets other than the physical effects the next day. Even so, I vividly recall the inevitable conversations with friends late on Sunday mornings, which often included questions like: “What did I do last night?” “What is this bump on my head?” or “Why was I sleeping on the floor?”

I say this not to be irreverent but simply to acknowledge the effects of alcohol on the human brain. Because of those effects, I repeat that I cannot deny these accusations. I simply do not know.

If I did what I am accused of doing, I am truly sorry. As I understand it, the person whom I might have wronged has suffered decades of emotional harm because of those actions. I can never give those years back to her, and even if I were not the person who did this to her, I want her to gain some peace through this process. She deserves at least that much.

What does this say about me as a potential Supreme Court justice—and, more importantly, as a person? The easy answer, which I dearly hope is true, is to blame the alcohol and to say that such actions do not reflect who I am as a person. The old saying “in vino veritas” communicates the idea that what people do or say while drunk reveals their true selves. If I did do these horrible things, I sincerely want to believe that there is no veritas in how those actions reflect on me as a person.

It is also tempting to blame the context, the time and place, my age, and so on. But even at that young age, I knew what alcohol could do to me. That, in fact, is why I was so eager to go out drinking. I, and most of the people I knew, enjoyed the mind-altering freedom of drinking. Yes, there were (and amazingly still are) movies, songs, and television shows that glorify drinking and hangovers. Other people have evidently done even worse things than I might have done while they were drunk.

But that is cold comfort to my accuser, and it is frankly cold comfort to me. “At least you weren’t even worse” is not the motto by which I want to live my life. At my confirmation hearings, it was a deep pleasure for me to hear the positive things that people said about me, and I was especially proud of my reputation for being a good boss and friend to women as well as men. That is what I want to be true about myself.

Unfortunately, that could all be true, but it could still coexist with this horrifying set of events that might or might not be part of my past. Indeed, the thing that scares me the most is that this might not be the only time that I did something while drunk that I would be mortified to learn about today.

Where does, and where should, all of this put me with respect to my nomination to the Supreme Court? I do appreciate the outpouring of support from some people on my behalf, but I implore everyone not to attack my accuser. Whether or not I am the reason, she has wrongly suffered and should not be vilified for taking action now.

I feel especially uncomfortable with such efforts to defend me because they are uniquely inappropriate now. Yes, I was willing to go along with the advice to refuse to answer questions during my confirmation hearings, and I chose not to insist on having my records released publicly. Although all of that made me uncomfortable, my belief in my ability to be a good justice—combined, I have to confess, with more than a bit of personal ambition—induced me to play that game the way that it is now being played. Some people were going to support me no matter what, and others would oppose me, also no matter what.

If it had to be a politicized process, I told myself that that was not my fault. I tolerated the nagging sense that I was betraying my integrity by playing that game because I was willing to believe that I should not have to sacrifice my nomination in the possibly naïve hope of a return to a higher standard of confirmation processes.

But this is different. I am emphatically not asking anyone now to say, “Well, Brett Kavanaugh was my guy before, and nothing is going to change my mind.” I certainly am not asking anyone to speed through the remaining process or to dismiss the possibility that I did something that I cannot fathom but that I might actually have done. I want everyone to have a real conversation about my fate as a potential member of the Court.

One fair-minded person recently wrote this about my situation:

The choice—the dilemma—will be whether to block the rise of a widely respected judge based on something he might (or might not) have done as a juvenile, or to promote to the highest court a man accused of trying to rape an underage girl. Either choice presents the acute possibility that a grave injustice will be done.

Although I appreciate this attempt at evenhandedness, I have to say that it is simply wrong. It will not be “a grave injustice” if I never become a Supreme Court justice. No one—and certainly not I—deserves to be on the Supreme Court. I do believe that my record justifies my confirmation, but I know plenty of people with equal or better résumés who will never be honored with a seat on the Court. If I am to join that group, so be it.

In addition, the tragedy would not be that the Senate might “promote to the highest court a man accused of trying to rape an underage girl.” It would be to promote such a man after failing to take this possibility seriously, to pretend that nothing significant has changed with the emergence of this disturbingly credible claim, and to fail to ask whether such a man can serve effectively.

There is an argument that I should now withdraw my name from consideration. Even though doing so would crush what I readily admit has been my dearest hope, I would drop out immediately if I were sure it was the right thing to do. I am, however, honestly not sure that it would be right—or wrong.

Should someone who might have once (and we would all dearly hope that it was only that one time) committed a vile criminal act as a drunken adolescent be voted down by the Senate? Because I am not neutral in this, I will say that I would hope that my life and career would outweigh those terrible alleged acts. I am not, however, the right person to ask.

After all, reasonable people could instead decide that the Supreme Court’s institutional integrity—which I value deeply—is too important to allow the Senate to confirm a person who has been credibly accused of terrible acts that he cannot honestly deny with certainty. Because our society is changing for the better in its treatment of women—too slowly, and much too late, but inexorably—what I might come to represent in people’s minds could be too much for the Court’s public reputation to withstand. Especially with so much controversy regarding my possible rulings on future cases involving women’s rights, a senator might in good faith think that I am now the wrong man for the job.

This is, I admit, a painful thing for me to say. But the fact is that I might or might not be the person who should fill Justice Anthony Kennedy’s seat on the Supreme Court. If I am not, someone else (most likely someone I know well) will instead be given this great honor, and the Court and the country will surely be well served.

In the end, however, this is not my call to make. I promise to cooperate in good faith no matter what decision is made about how to proceed. I guarantee you all that, if I am confirmed, I will do my best to honor the Constitution and to serve my country with distinction. But if the President chooses to withdraw my name, or if the Senate votes against my confirmation, I will be disappointed but resilient.

Let me end by returning to the woman whose life has been scarred by what I might have done. Again, I cannot say with certainty that I did not do what she says that I did, and my inability to be able to deny such a serious accusation saddens me greatly. I can say that I am heartbroken by the very idea that my idea of a good time might have caused me to do those things. I hope that I did not, but because I will never know, I can only repeat that this good woman deserves to be treated better than she is currently being treated—especially by people who call themselves my allies and friends.

So, I put the question to you, Mr. President, members of the Senate, and the American people. But that question is not: “Does Brett Kavanaugh deserve to be a Supreme Court justice?” It is: “Should Brett Kavanaugh or someone else be the next person honored with the job of a lifetime?” The choice is yours.

Sincerely,

Brett Kavanaugh


As readers surely know, this is not how Kavanaugh has responded. He has instead decided to state as fact something that he cannot know to be a fact. That should disqualify him from consideration for the Court.

If I were voting the merits as we knew them prior to the sexual assault allegations, I would have said that he should not have been confirmed, but that is not the point now.

The president and the Senate, in consultation with the American people, could have been asked to decide whether the possibility of an alcohol-fueled crime committed during adolescence makes Kavanaugh a bad choice. That would have been a difficult decision. Instead, Kavanaugh and his supporters have made this a clear and easy choice. He has shown that he does not belong on the Supreme Court. Indeed, he does not belong on the bench.