Michael Meeropol: Mark II

Oct 5, 2018

Even with a fake investigation of Judge Brett Kavanaugh, he is obviously unfit for the Supreme Court.

I am recording this Thursday morning, October 4, 2018. The FBI has concluded its background report on Kavanaugh and members of the Senate are reading it today with an eye towards beginning to vote at least on procedural motions the day this commentary will be broadcast.   Due to the limited nature of the FBI’s investigation, it appears that within a few days Kavanaugh will be confirmed to the Supreme Court.

[This written version was submitted before 3:00 p.m. on October 5.]

I want to make three points --- recognizing that some of what I say might be rendered irrelevant soon.   (It is even possible that Kavanaugh’s appointment will fail – though I strongly doubt that.)

First -- any honest objective person must conclude that Kavanaugh is unfit to sit on the Supreme Court.   He is a political operative who has lied to the Senate about his activities before becoming a Judge – and not just about his interactions with Dr. Christine Blasey Ford and Ms. Deborah Ramirez.  

[For a list of his lies see the article:   “Brett Kavanaugh lied to the Senate. Many times. Here's a long list, and a video supercut.” available at  https://boingboing.net/2018/10/03/kavanaugh-lied.html]

When he responded with anger to what he called a “political hit” he basically threw a temper tantrum before the Senate Judiciary Committee.   With his attacks on Democrats and left-wing groups and his disrespectful behavior towards some of his questioners, he convinced even former supporters that he lacked the appropriate judicial temperament.   In addition, his tantrum demonstrated a bias against a wide variety of groups --- all of which would from time to time come before him as litigants in the future.  At the very least, were he a Supreme Court Justice he would be asked to recuse himself time after time whenever one of the groups he attacked was before the Supreme Court.

[Between the time I recorded the commentary and the time I submitted this longer written version, he wrote an OP ED for the Wall Street Journal in which he recognized how out of line his comments had been and promised that his “real self” is the well-practiced image of an “impartial judge.” He actually tried to make it seem as if these statements were uttered “in the heat of passion” yet in fact they were part of his written prepared remarks.   Hopefully no one will be fooled by his attempt to deny the obvious.]

Second -- The last few days of FBI investigating have been so controlled by the White House as to constitute a cover-up.   Failing to use the opportunity to probe Kavanaugh’s “defense” at the Senate on September 27 is perhaps the most egregious gap in this so-called investigation --- but there are others as well.

Third --   The failure of the FBI to do what virtually every retired FBI official who has commented on the issue has stated should have been done (note -- this includes former director Comey in a New York Times OP-ED)  means that the next time the Democrats win control of the House or Senate they will be duty bound to use their subpoena power to finish the job --- getting to the bottom of the charges made by the three women who so far have publicly accused Kavanaugh of sexual misconduct as well as the numerous perjuries he committed during his testimony.

I will take these three points in order.

First point.  

The line that Kavanaugh and his defenders initially took about the testimony of Dr. Christine Blasey Ford was that she was a compelling, truth-telling witness who had undoubtedly experienced the event she described --- only it was not caused by Kavanaugh.  Rather than attempt to attack her the way the defenders of Justice Clarence Thomas had attacked Anita Hill back in 1991 (a number of the Senators accused her of perjury), they instead settled on the argument that Dr. Ford had been molested by someone else and that her spotty memory was evidence that Kavanaugh is innocent.

Kavanaugh could have tried to consistently present that argument but his anger and his arrogance got the better of him.   A man with a judicial temperament and even an ounce of empathy would have responded with sympathy for Dr Ford.  Instead he chose to respond in anger at the Democrats who he charged were still angry because Trump had won the election.   An innocent, compassionate Kavanaugh would not have thrown the incredible fit we all witnessed.

[No one seems to have remembered but only a few months previously, the opposition to Justice Neil Gorsuch was just as vigorous on the part of the Democrats and so-called “left wing opposition groups.”   Yet it was conducted on the issues.  No charges of personal misconduct were leveled against Gorsuch and he even garnered some support from Democrats for the final confirmation vote.] 

Turning the hearing into a wholesale attack on the Democrats and even bringing in the Clintons --- THE CLINTONS FOR GOD’S SAKE --- is all we needed to see to make the obvious judgement that this man has no place on the bench --- much less the Supreme Court.   Only cynics like Mitch McConnell and know-nothing supporters like the right wing citizen who, when interviewed on television, dismissed Ford because she was a liberal from California can ignore the implications of Kavanaugh’s rant before the Senate Committee.  

Though it is unbelievably disgusting, everyone should at least once watch the video of Trump ridiculing Dr. Ford (dropping the mask that she should be “listened to” and that she was a “compelling witness”).  In watching the video, note the gleeful way the (all white) audience of Mississippians behind him yucked it up.  They reminded me of the various photos that circulated during the early 20th century of crowds enjoying a lynching.

[Usually the Trump campaign places a few black folks strategically behind Trump at these rallies so TV viewers will see evidence that he and his supporters aren’t racists --- it is good to see that at least for this rally, no black Mississippians could be found to be token supporters of Trump.]  

[What is particularly disgusting about watching the crowd is that some of the women in that crowd have no doubt been subject of sexual harassment and perhaps sexual assault but they chose to identify with the “grab ‘em by the pussy” President and the drunken would-be rapist Kavanaugh rather than with their victims.]

Second point.  

The Republicans who have claimed that the FBI interviews conducted since Friday, September 27 found “no corroboration” for either Dr. Ford or Deborah Ramirez (they didn’t even pretend to investigate the charges of Julie Swetnick) carefully ignored the obvious.   If you order the FBI not to talk to anyone who has evidence that would tend to confirm the chargers of Dr. Ford or Ms. Ramirez then OF COURSE they won’t find any corroboration.  In addition failing to find corroboration is NOT the same thing as finding evidence to REFUTE the charges. 

At the hearing, the Democrats who tried to probe Kavanaugh’s defenses were hamstrung by the five minute rule and Kavanaugh’s filibustering answers.   Since that hearing, many individuals have come forward to present evidence that Kavanaugh lied about his high school yearbook and his drinking habits.   The FBI did not interview any of them --- even though many reached out directly to the FBI and offered to testify.

When it comes to Kavanaugh’s own credibility, the FBI was told by the White House NOT to interview him.   In a rambling news conference on October 1, Trump admitted that in fact he was the person to order the FBI who to interview but, he said, he was doing what the Senate wanted.   Whoever made the decisions (probably White House Counsel Don McGahn) the result was a very limited FBI investigation.

The FBI should have interviewed Kavanaugh and explored at length the obvious perjuries he committed before the Senate Judiciary Committee.   One line of questioning would have quickly exposed his lies about his yearbook --- what “boofing” and “Devil’s Triangle” and “Renate alumnus” meant.  Another could have explored his lies about receiving materials stolen from a Democratic Senator’s office when he (Kavanaugh) worked for President George W. Bush.  The FBI should have offered him a lie detector test and had him repeat the claims he made under oath before the Committee.   He would not have been forced to take that test but that refusal, itself, would have been important evidence.  

The FBI should have interviewed Dr. Ford and perhaps administered a new lie detector test to her.  They could have worked to fill in her memories – a simple one would have been to subpoena the records of the supermarket where Mark Judge worked the summer of the assault on Dr. Ford.  That could have fixed the date.  They could have found the floor plans for the house where the July 1 party (that was on Kavanaugh’s calendar) occurred to see if Dr. Ford thinks that was the house where the assault occurred.

Among the people who offered to testify were former classmates of Kavanaugh and Deborah Ramirez at Yale some of whom had heard about his assault on Ms. Ramirez around the time it happened.  Surely such evidence would have corroborated Ms. Ramirez’s testimony so the White House made sure those individuals would not be called.  

And let’s not forget about Mark Judge.  Yes, they interviewed him.  It appears he either denied Dr. Ford’s story OR he didn’t remember the event.  But why didn’t the FBI interview Judge’s former girl-friend to develop evidence as to Judge’s veracity as he denied participating in the attempted rape of Dr. Ford?    The fact that Judge told his former girlfriend of a multiple sexual assault on a drunken woman is prima facie evidence for the charges of Julie Swetnick --- yet the FBI was told not to interview her at all.

So let me re-iterate --- the FBI report fails to corroborate the charges against Kavanaugh not because they found evidence to refute Dr. Ford, Ms. Ramirez and Ms. Swetnick.   They found nothing to corroborate those three women because they were explicitly ordered not to pursue ANY leads in that direction.   It’s like the drunk looking for his keys under a lamppost because the light is better there, even though he had dropped them down the street under his car.

Finally to my third point --- this is not over. 

If Kavanaugh  is confirmed as a result of the fake FBI investigation, the first time the Democrats get control of either House of Congress they are duty bound to re-open the investigation with an eye to proving at the very least that Kavanaugh committed perjury during his testimony.  In addition, a committee with subpoena power could develop evidence to nail down three issues ---

  1.  Did Dr. Ford correctly remember that it was Kavanaugh who attacked her?
  2.  Did Deborah Ramirez tell the truth about Kavanaugh’s assault on her?
  3.  Were there instances of, in effect, gang rape at some of the parties as asserted by Ms. Swetnick?

By the way – it is possible that even if Ms. Swetnick is telling the truth, there is not enough evidence to implicate either Kavanaugh or Mark Judge as perpetrators.

[Based on the incomplete record, I believe that Dr. Ford and Ms. Ramirez are telling the truth.  I believe Kavanaugh was so drunk he literally did not remember those incidents.  In any effect, he probably believes that his sexual aggressiveness towards women in his drinking years were in the past – and that he truly is a different person.  That then can explain his extraordinary rage at “the Democrats” for bringing this up.   But I do not have even a fraction of the evidence that a thorough investigation with subpoena power would reveal.   That is why the FBI should have done what former Director Comey stated they definitely COULD have done.  That is why a Congressional Committee will have to finish the job.]

As I record this, I am still hoping that reason and decency will prevail among Manchin, Flake, and Collins.   (Great praise for Murkowski) But if two of them fold and vote to confirm Kavanaugh, that will not be the end of the fight for the truth --- not by a long shot.

Michael Meeropol is professor emeritus of Economics at Western New England University. He is the author with Howard and Paul Sherman of the recently published second edition of Principles of Macroeconomics: Activist vs. Austerity Policies.

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