Benjamin Wittes' unfair and naive attack on Brett Kavanaugh

Benjamin Wittes of the Brookings Institute has written a a grossly unfair attack on Brett Kavanaugh disguised as the reluctant condemnation of a dear friend. Democrats are laughing up their sleeves. Wittes writes:

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. ... 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.

I am astonished that Mr Wittes so completely misunderstood Judge Kavanaugh's opening remarks. My response to Mr Wittes is: yes, I do feel that a reasonable party to litigation could be confident that a Justice Kavanaugh would be a fair arbiter. This is because Mr Kavanaugh's opening statement was anything but partisan. Rather, it was a passionate rejection of partisan prejudice and closed-mindedness; for example, of the prejudgement of a Democratic senator who labeled him as "evil" before the hearings even started and of the ludicrous hyperbole of a former head of the National Democratic Committee who claimed that Kavanaugh "would threaten the lives of millions of Americans for decades to come." His opening statement was likewise a passionate defense of the principle that due process must be accorded to all and that the accused should be convicted only by the force of factual evidence, the testimony of witnesses, and rational argumentation rather than because of blind faith in the uncorroborated accusations of an accuser. So, yes, if a party to litigation were to present factual evidence and testimony and logical argumentation to a Justice Kavanaugh (rather than bald assertions), I am fully confident that he would listen with an open mind, not prejudge the case, and give that party a fair hearing.

After all, many parties to litigation have received a fair hearing before Judge Kavanaugh over many years, as was testified to by the ABA, which assigned to Judge Kavanaugh the rating of "well-qualified." As the ABA states in its backgrounder to its Standing Committee on the Federal Judiciary:

In evaluating “judicial temperament” the Committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law. ... To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement." [emphasis added]

For Mr Wittes to question Judge Kavanaugh's fairness and impugn his judicial temperament because of one occasion on which he expressed righteous and fully justified anger at a smear campaign directed against him after his fairness and judicial temperament had been judged by the ABA to have been unimpeachable over a period of many years is simply grossly unfair. Keep in mind that the temperament and fairness of Judge Kavanaugh had never been called into question before the vicious attacks on him started to accumulate during his confirmation hearings. As I wrote the other day:

[A]fter doing everything in her power to antagonize the man, our noble California Senator, Dianne Feinstein, now has the temerity to complain that he has become antagonistic. It is as if she had beaten a dog with a stick repeatedly and then, when it snarled at her in its anguish, she said “You see? You see how vicious and rabid it is? That's why we must put it down.”

Wittes continues:

I fear the evidence is not ... quite in equipoise, even if one believes that a senator should confirm a justice on the basis that the presumption of innocence should break the tie between two equally compelling testimonies. At least as I read it, though it pains me to say so, the evidence before us leans toward Ford.

The experienced sex crimes prosecutor, Rachel Mitchell, on the other hand, has indicated that Ms Ford's allegations do not even meet the preponderance-of-the-evidence standard used in civil lawsuits:

In the legal context, here is my bottom line: A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard

It is presumptuous, to say the least, for Mr Wittes to consider his ability to assess Ms Ford's testimony superior to that of a seasoned sex crimes investigator with many years of experience.

Wittes goes on:

Kavanaugh’s testimony, whatever one makes of his impassioned claims of innocence on the specific charge, is not credible on the more general issue of his drinking habits. ... His apparent lack of candor on the culture of drinking at Georgetown Prep and later is a problem of its own, quite apart from what it may indicate about the truth of Ford’s story. ... I don’t believe in white lies from anyone else either in sworn congressional testimony

Regarding Mr Kavanaugh's drinking habits in high school and college, the Democrats and their allies in the media are applying a standard to Judge Kavanaugh that they have never applied to Democrats. For example, the drinking habits of Teddy Kennedy were never considered to be disqualifying. Even now, Beto O'Rourke, the current Democratic senatorial candidate from Texas, has himself admitted to being so drunk while driving as a young man that he crashed his car; police records indicate that he tried to flee the scene of the accident; and yet, none of this is judged by either his fellow Democrats or the media as even remotely disqualifying (after all, he's so cool he skateboards). Likewise, Barack Obama himself admitted to using marijuana and even cocaine in the period "before he entered politics" (a convenient phrase, which conceals exactly when he stopped using) and it was never considered disqualifying for him. As I wrote the other day:

[W]here were all these critics of substance abuse when Barack Obama admitted to smoking marijuana and snorting cocaine when he was a young man? Back in 2006, the NYT reported:
Obama had written in his first book, "Dreams From My Father" (1995), before entering politics, that he had used marijuana and cocaine ("maybe a little blow"). He said he had not tried heroin because he did not like the pusher who was trying to sell it to him. ... "It was reflective of the struggles and confusion of a teenage boy," he said. "Teenage boys are frequently confused."

Ah, I see: Barry's cocaine use was the confusion of a teenage boy, but Brett's drinking is an unforgivable crime. And "maybe a little blow?" This is the very definition of a white lie. There is no "maybe" about it, Barack: either you did or you did not snort cocaine. And, if you did, you know exactly how much you did. In other words, Obama was never entirely truthful in his characterization of his embarrassing youthful drug habits, but this was never seen as disqualifying for him. (For a lot more on Barry's pot smoking habits with the "Choom Gang" in Hawaii, see here.)

It is simply unfair for Mr Wittes to apply one standard to those who are the darlings of the Democrats and the media and another, far more priggish, standard to those who are not.

So come on, Ben, get off your high horse and realize that your delicate moral sense is being manipulated by a bunch of shameless Dems and their media lackeys who afterwards are simply going to laugh at how completely they hoodwinked you. Do not allow the Democrats to add the verb "kavanaugh" to the verb "bork."